The Power of Minor’s Guardian

Sec.12 of the Hindu Minority and Guardianship Act 1956

Sec.12 Guardian Not to be appointed for minor’s undivided interest in Joint Family Property:-

“Where a minor has a undivided interest in joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such interest.

(Provided that nothing in this section shall be deemed to effect the jurisdiction of a High Court (the Chartered HCs* only) to appoint a guardian in respect of such interest.)

(Chartered HCs* – Govindappa v. Dodda Thayappa AIR 1968 Mys 178)

Govindappa and others v. Doddathayappa and others, AIR 1968 Mys. 178

These cases which are referred by Narayana Pai J. to a Bench of two Judges, pose the question whether this Court has the power to appoint a guardian for a minor in respect of his undivided interest in Hindu joint family property in the area of the former State of Mysore, which, is under the management of an adult member of the family.  Section 12 of the Hindu Minority and Guardianship Act, 1956 (Central Act 32 of 1956) forbids such appointment save in the exercise of jurisdiction to which the proviso to is refers.

Kalagate, J.

(19) The reference to the jurisdiction exercised in England, as pointed out by Sir John Beaumont C. J. in re: Ratanji Ramaji AIR 1941 Bom 397 was “to show that the jurisdiction which was intended to confer on the Supreme Court, was jurisdiction to exercise powers of the Crown as parensapatriao, those powers being exercised in England at first by the Lord Chancellor, afterwards by the Court of Chancery, and at the present time, by the Judges of the Chancery Division, “Clause 37 thus conferred similar powers on the Supreme Court, and if that is so, the chartered High Courts at Calcutta, Madras and Bombay inherited these powers which were being exercised by the Supreme Court, by virtue of the Letters patent or Charter of the years 1862 and 1865, and the power possessed by those chartered high Courts was being exercised apart from the Guardians and Wards Act of 1890, in appointing guardians of the minors’ undivided interest in a joint Hindu family property. (Vide AIR 1941 Bom 397, AIR 1949 Mad 260, ILR 50 Cal 141 = (AIR 192 Cal 409), ILR 59 Cal 570=(AIR 1932 Cal 502) and AIR 1928 All 709).Although the High Court of Allahabad states that it had jurisdiction by virtue of clause 12 of the Letters patent in respect of the person and property of minors, it refused to exercise that jurisdiction in that particular case on the ground of inexpediency and want of precedent. It is this power which was possessed by the chartered High Courts that has been saved by section 3 of the Act of 1890.

(21) Thus it is clear from a survey of the relevant clauses in the Letters Patent and the decisions that the chartered High Courts possessed the power and authority with respect to the persons and estates of infants, and in exercise of that power and authority, the High Courts in Calcutta, Madras and Bombay were appointing a guardian of the undivided interest of a minor in a joint Hindu family property, and it is that power which is saved by Section 3 of the Act of 1890.

**

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