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In Re: Bijaykumar Singh Buder - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata
Decided On
Reported inAIR1932Cal502
AppellantIn Re: Bijaykumar Singh Buder
Cases ReferredRam Krishna Muraji v. Ratan Chand
Excerpt:
- .....1890 any more than there was under its precursor, act 40 of 1858, to appoint the karta of a joint hindu family to be the guardian of the property of a minor son. i need not refer in detail to all the cases. sir arthur wilson giving judgment in the privy council in the case of gharib-ulla v. khalak singh [1903] 25 all. 407 said:it has been well settled by a long series of decisions in india that a guardian oil the property of an infant cannot properly be appointed in respect of the infant's interest in the property of an undivided mitakshara family. and in their lordships' opinion those decisions are clearly right, on the plain ground that the interest of a member of such a family is not individual property at all, and that therefore a guardian, if appointed, would have nothing to do.....
Judgment:

Costello, J.

1. This is an application under the Guardians and Wards Act, 1890; it also invokes the inherent powers of the Court under. Clause 17, Letters Patent of this Court. The matter was originally heard in Chambers, but as it raised a point of some importance it was adjourned to Court for further argument,

2. The petitioner is a man named Rupchand Buder of No. 11, Duff Street, in the city of Calcutta. He is a Hindu governed by the Mitakshara School of Hindu law. The application is that he should he appointed guardian of the persons and property of his three sons, all of whom are minors. The petitioner makes the application for the purpose of putting himself into the position of being able to confer as far as possible an unassailable title upon the purchaser of a house No. 19, Shambhu Mallik Lane, which is joint family property belonging to the petitioner and. his three minor sons.

3. It has been held in several cases in the various High Courts of India and by the Judicial Committee of the Privy Council that there is no power in the Court under the provisions of the Guardians and 'Wards Act, 1890 any more than there was under its precursor, Act 40 of 1858, to appoint the karta of a joint Hindu family to be the guardian of the property of a minor son. I need not refer in detail to all the cases. Sir Arthur Wilson giving judgment in the Privy Council in the case of Gharib-ulla v. Khalak Singh [1903] 25 All. 407 said:

It has been well settled by a long series of decisions in India that a guardian oil the property of an infant cannot properly be appointed in respect of the infant's interest in the property of an undivided Mitakshara family. And in their Lordships' opinion those decisions are clearly right, on the plain ground that the interest of a member of such a family is not individual property at all, and that therefore a guardian, if appointed, would have nothing to do with the family property.

4. In my opinion however this observation of Sir Arthur Wilson must be interpreted in the light of the facts which were then under review by their Lordships of the Judicial Committee. An examination of the case shows that it was one in which a certificate of guardianship had been obtained by a lady in connexion with the property of her two minor sons under the provisions of Act 40 of 1858. It follows that the judgment of the Privy Council in the case of Gharib-ulla v. Khalak Singh [1903] 25 All. 407 does not necessarily mean that their Lordships were holding that the inherent powers of a High Court in India in the matter of an appointment of a guardian were no longer in existence. This view of the matter was adopted by Kemp, J., in the case of Narsi Tokersey and Co. v. Sachindranath Gajanan Gidh A.I.R. 1929 Bom. 475. In the course of his judgment his Lordship said:

There can be no doubt that under the Guardians and Wards Act 8 of 1800 no guardian can be appointed of a minor coparcener's interest in the joint property where there is any adult coparcener alive. This has been laid down in the cases of Kajikar Lakshmi v. Mario Devi [1909] 32 Mad. 139 Bindaji v. Mathurabai [1905] 30 Bom. 152 and the Privy Council case of Gharib-ulla v. Khalak Singh [1903] 25 All. 407

5. His Lordship continued:

In the Privy Council case a certificate of guardianship which was throughout the case assumed to be of the property was granted under S. 8, Act 40 of 1858 to the mother as guardian of a minor coparcener.

6. Then his Lordship quotes the passage from the judgment which I have already road. On p. 77 (of 54 Bom.) his Lordship said:

Further, the cases show that where the guardian is appointed under the inherent jurisdiction of the High Court such an appointment in valid. In re Jagannath Ramji [1893] 19 Bom. 96. Stirling J., hold that the High Court had power to appoint a guardian of the person or property of minor co-parceners whether such minors possessed property or not.

7. It seems to me that I ought to follow the decision of Kemp, J.., particularly [having regard to the fact that several (years previously Greaves, J., in this Court had already decided--on the authority of the case of Manilal Hurgovan [1900] 25 Bom. 353--that this High Court, under its general jurisdiction, and apart altogether from the Guardians and Wards Act, still 'had). power to appoint a guardian of a minor member of a family governed by 'the Mitakshara School of Hindu law: see In re Hari Narain Das A.I.R. 1923 Cal. 409 In between that case and the Bombay case decided by Kemp, J., there had been a cast) in the Allahabad High Court [In the matter of Govind Prasad : AIR1928All709 , where Boys, J,, and Iqbal Ahmad, J., also decided that the High Court had jurisdiction by virtue of its Letters Patent to appoint guardians even to minor members of a joint Hindu family though they thought that the Court should be reluctant to exercise that power. I ought perhaps to refer to the recent case of Ram Krishna Muraji v. Satan Chand (9). A question as to whether a member of a joint Hindu family can he appointed a certificated guardian of the property of the minor member and whether an order permitting a certificated guardian to mortgage the ward's property was there raised but not decided. But in that case the matter had gone to the Judicial Committee of the Privy Council on appeal from a judgment of the High Court of Allahabad reversing the judgment and decree of the Subordinate Judge of Cawnpore. It is probable therefore that the appointment of a certificated guardian referred to in that case must have been made under the specific statutory authority and not under the inherent jurisdiction of a Chartered High Court. The case of Ram Krishna Muraji v. Ratan Chand therefore does not overrule the decisions in the cases of Govind Prasad : AIR1928All709 and Narsi Tokersey and Company A.I.R. 1929 Bom. 475.

8. It would, I think, be a matter of regret if one found, oneself forced to the conclusion that the powers of this Court in the matter of guardianship were exercisable only under the terms of the Guardians and Wards Act, 1890 and never otherwise. Being of opinion however that this is not the effect of the authorities, I hold that the Court can accede to this application under the second of its two aspects, namely, that which invokes the inherent jurisdiction of the Court and I accordingly make an order that the petitioner Rupchand be appointed guardian of the persons and property (or estate as it is called in one of the cases) of his throe minor sons Bijaykumar Singh Buder, Bimal Singh Buder and Dhirendra Singh Buder, upon giving security to such extent as the Registrar shall think necessary and that, after giving such security, he be at liberty to sell and convey on behalf of himself and his sons the house situate at No. 19, Shambu Mallik Lane. The cost of one Chamber Summons and one day in Court will be paid out of the family fund.


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