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In Re: Hari NaraIn Das (an Infant) - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal409,74Ind.Cas.244
AppellantIn Re: Hari NaraIn Das (an Infant)
Cases ReferredSham Kuar v. Mohanunda Sahoy
Excerpt:
hindu law - mitakshara--minor, co-parcener--guardian of property, appointment of--principles applicable. - .....was a member of a joint hindu family and where the minor's property was an undivided share in the family property but the order was only made in the special circumstances of the case and sir lawrence jenkins in delivering the judgment of the court stated at page 357:we make appointment in this case because the person applying to be appointed the guardian is also the manager of the family to which the minor belong and thus we do not introduce into the family any element of possible disturbance. i can hardly imagine a case in which it would be right to grant such an application unless the applicant were the manager and it is expressly upon this ground that we make the appointment in this case.' sir lawrence jenkins points out also in his judgment that the bombay court in numerous cases.....
Judgment:

Greaves, J.

1. This is an application by one Laluram Das, the father of the infant Hari Narain Das, that he may be appointed guardian of the person and property of Hari Narain Das and that he may be given liberty to sell and convey the undivided half share of No. 16, Cowie Dane, for the purpose of paying off the moneys due under the mortgage now subsisting on the property.

2. The infant is governed by the Mitakshara School of Hindu Law. He is the only child of his father and he has no separate property of his own. There is a mortgage on 16, Cowie Dane, of Rs. 5,000 or thereabouts and certain costs have, I understand, also to be paid. An offer has been trade to purchase the property for a sum of Rs. 16,650 and I, am told and it so appears in the petition that this is considerably above the real value of the property, the real value it is said being something in the neighbourhood of Rs. 10,000. The purchaser insists that an order of the Court should be obtained sanctioning the sale before he completes the purchase and I understand that he is not prepared to complete the purchase unless such order is made.

3. It is not the practice of this Court, where persons are governed by the Mitakshara School of Hindu Law, to make orders of this nature and in Sham Kuar v. Mohanunda Sahoy 19 C. 301 : 9 Ind. Dec. (N.S.) 646 Mr. Justice Macpherson and Mr. Justice Ameer Ali, sitting on the Appellate Side of this Court, refused to make an order under the Guardians and Wards Act appointing a guardian of the property of a minor who was a member of a joint Mitakshara family owning no separate estate. The person who was in that case sought to be appointed guardian was not the karta of the family and clearly he could not have taken possession of any of the property of the minor, and it was not suggested by the applicant that he could do so but it was suggested that he might be appointed in order to watch the interest of the minor. In these circumstances, as I have already stated, the application was refused but I am asked to make the order on the authority of In re Manilal Hurgovan 25 B. 353 : 3 Bom. L.R.(sic). The Bombay Court in that case, held that, under its general jurisdiction and apart from the Guardians and Wards Act, the Court had power to appoint a guardian of the property of a minor who was a member of a joint Hindu family and where the minor's property was an undivided share in the family property but the order was only made in the special circumstances of the case and Sir Lawrence Jenkins in delivering the judgment of the Court stated at page 357:

We make appointment in this case because the person applying to be appointed the guardian is also the manager of the family to which the minor belong and thus we do not introduce into the family any element of possible disturbance. I can hardly imagine a case in which it would be right to grant such an application unless the applicant were the manager and it is expressly upon this ground that we make the appointment in this case.' Sir Lawrence Jenkins points out also in his judgment that the Bombay Court in numerous cases had made such appointments. The facts in the case before me are practically identical with those that arose in the Bombay case to which I have just referred; the father, there, as here, was the karta there, as here, was an only child: there, as here, the ground of the application was that a far better price could be obtained if the leave, of the Court had been obtained than if the karta sold merely as manager of the joint family. In the circumstances, and for the reasons stated in the case to which I have referred, I am prepared to make the order here, but I make it only on the condition that after the mortgage is discharged and the different costs and charges in respect of the property are, also paid, one-half of the sale proceeds is invested by the guardian for the benefit of the infant. Accordingly, I appoint the applicant 'the guardian of the person and, property, of Hari Narain Das and give him liberty to sell and convey the undivided share of Cowie lane, which constitutes the only immoveable property belonging to the estate of the infant. Out of the minor's half share of the sale-proceeds he will discharge a moiety of the mortgage and pay a moiety of the costs referred to in the petition and a moiety of the costs of the sale and, after deducting the costs of this application, he will invest the balance of the share accruing to the minor in trust securities for the minor's benefit and in his name. The guardian undertakes that after the mortgage is discharged and the costs and charges in respect of the property are paid, one half of the sale-proceeds will be invested by him for the benefit of the minor Hari Narain Das and in the minor's name and he must report to the Court that this has been done and give security for one year's income of the investment.

4. The costs of this application will be as between attorney and client and will come out of the share.

5. Certified for Counsel.


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