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In Re: Tarunchandra Ghosh - Court Judgment

LegalCrystal Citation
Subject Civil
CourtKolkata
Decided On
Reported inAIR1930Cal598
AppellantIn Re: Tarunchandra Ghosh
Excerpt:
- .....take away any power possessed by any high court established under 24 and 25 viet. by that statute high courts were established in the place of the supreme courts and sudder courts, which had hitherto existed, and, under section 9, it was provided that they should exercise all such powers as should be granted by letters patent and, save as by such letters might be otherwise directed, the said high courts should have and exercise all jurisdiction vested in any of the courts so abolished, i.a., the supreme and sudder courts. under clause 17, letters patent, 1865, it was provided that the high court should have the like power with respect to infants and others within the bengal division of the presidency of fort william as was vested in the said high court immediately before the publication.....
Judgment:

Lort-Williams, J.

1. Section 3, Guardians and Wards Act, 1890, provides that nothing in this Act shall be construed to take away any power possessed by any High Court established under 24 and 25 Viet. By that statute High Courts were established in the place of the Supreme Courts and Sudder Courts, which had hitherto existed, and, under Section 9, it was provided that they should exercise all such powers as should be granted by Letters Patent and, save as by such Letters might be otherwise directed, the said High Courts should have and exercise all jurisdiction vested in any of the Courts so abolished, i.a., the Supreme and Sudder Courts. Under Clause 17, Letters Patent, 1865, it was provided that the High Court should have the like power with respect to infants and others within the Bengal Division of the Presidency of Fort William as was vested in the said High Court immediately before the publication of those presents. The power therein referred to was contained in Clause 16, Letters Patent, 1862, which ordained that the Court should have the same jurisdiction over infants as was then vested in the Supreme Court. The power vested in the Supreme Court was contained in the Charter establishing that Court, which gave that Court all the powers of the Court of Chancery, and by Clause 25 thereof it was provided that the Supreme Court should be authorized to appoint guardians and keepers for infants and their estates according to the order observed in that part of Great Britain called England. There is no restriction, therefore, in that powers granted to either the Supreme Court or the High Court which limits the exercise of guardianship jurisdiction to the town of Calcutta or to European British subjects, and I am of opinion that, even if any such limitation exists, it does not apply, where the person who is outside the limits of the ordinary original jurisdiction or who is not a European British subject desires to avail himself of the jurisdiction of the Court and there is no opposition thereto.

2. The Court of Chancery has power to appoint a guardian on petition without suit and to appoint a guardian for an infant residing abroad. The Indian High Courts now exercise both these powers : In the matter of Bittan [1877] 2 Cal. 357 and In re the Estate of H.G, Meakon [1896] 21 Bom. 137,

3. The only cases directly upon the point are In re Shannon [1870] 2 N.W.P.H.C.R. 79 in which it was decided that the High Court had power to appoint a guardian, even when the minor resided outside and had no property within the limits of its ordinary original civil jurisdiction and the case of In the matter of Srish Chunder Singh [1893] 21 Cal. 206 in which Sale, J. decided that he had no such power. In the latter case, however, the learned Judge arrived at this conclusion, for the sole reason, as he says in his judgment, that he was not aware of any instance in which the Court had exercised jurisdiction in the case of an infant residing outside the ordinary original civil jurisdiction and who was other than a European British subject. Moreover the facts of that case are distinguishable, because there were already in existence testamentary guardians whom the learned Judge was asked to displace, and the case was strongly contested by them. There is no opposition in this case, and I am satisfied that the Court has jurisdiction to make the order asked for.


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