Extending High Court Jurisdiction for Guardianship of Minors in Joint Hindu Family Property: Analyzing Ratanji Ramaji, In Re

Sir J.B Kanga, with R.S Parikh, for the petitioner., Sir Jamshedji Kanga, with R.S Parikh, for the petitioner. The question that arises for decision is whether the Bombay High Court has under its inherent jurisdiction power to appoint a guardian of the property of a minor who is a member of a joint Hindu family, whose property is an undivided share in the family property, and who resides outside the town and island of Bombay but within the Province of Bombay., M.C Setalvad, Advocate General, Amicus Curiae., A minor who is a coparcener in a joint Hindu family governed by the Mitakshara law has no separate interest in the undivided family property and no guardian of that property can be appointed under the Guardians and Wards Act, 1890. Under that Act a guardian could only be appointed of a minor's separate property: Mulla's Hindu Law, 8th edn., p. 567, s. 519, and Gharib-ul-lah v. Khalah Singh.(1), The Ahmedabad Court within whose jurisdiction the property is situate and the minor resides has no jurisdiction in the matter, the District Courts being confined to such jurisdiction as is conferred on them by the Guardians and Wards Act: Besant v. Narayaniah(2) No suit can be filed under s. 9 of the Civil Procedure Code, 1908, in the District Court., The power of the Chartered High Courts in the matter of guardianship has been saved by s. 3 of the Guardians and Wards Act, and the High Court may in the exercise of its inherent jurisdiction appoint a guardian even of an undivided interest of a minor member in a joint Hindu family property: Mulla's Hindu Law, p. 575, s. 537., The jurisdiction of the High Court in the matter of minors is that conferred by cl. 17 of the Amended Letters Patent of 1865. By that clause the Bombay High Court has jurisdiction in the matter of minors over all subjects in the Presidency, the power and authority being that which was vested in the High Court under the Letters Patent of 1862. Clause 16 of the Letters Patent of 1862 which dealt with the matter of minors in turn conferred the same power as that possessed by the Supreme Court established by the Supreme Court Charter of 1823 and gave the jurisdiction over infants whether “within or without the Presidency”., The Charter of 1823 establishing the Supreme Court of Bombay by cl. 37 conferred on that Court jurisdiction over the persons and estates of infants similar to that of the Court of Chancery in England. This clause contains no territorial limits within which the jurisdiction could be exercised. By cl. 5 of the Charter of 1823 the Supreme Court had jurisdiction over all the territories “which-are now or hereafter may be subject to the Government of Bombay”., Clauses 23 to 36 of the Charter of 1823 relate to jurisdiction of the Supreme Court in suits and actions and the procedure to be followed in such suits and actions. Clause 37 and the subsequent clauses relate to jurisdiction over infants, and lunatics, and matters criminal, probate, admirality, etc., The wording of cl. 23 is not clear, but even if it be held that in suits and actions the jurisdiction of the Court was limited to the town and island of Bombay and outside the town and island it extended to British subjects only, that is no warrant to extend that limitation to the jurisdiction under cl. 37 over infants and lunatics. Clause 37 should be read with cl. 5. The Charter of 1823 was issued under powers conferred by 4 Geo. IV, c. 71. By s. 7 of that statute the Supreme Court at Bombay was to have the same powers and authority as that “now subsisting at Fort William in Bengal with full power to exercise jurisdiction both over natives and British subjects within the territories now or hereafter may be subject to the Government of Bombay”., Section 14 of 13 Geo. III, c. 63, under which the Calcutta Charter was granted, does not restrict the jurisdiction of the Supreme Court of Fort William in Bengal beyond the local limits of Calcutta to British subjects only., In Bombay it is now well established that the High Court in its general jurisdiction under cl. 17 of the Letters Patent of 1865, and apart from the Guardians and Wards Act, has power to appoint a guardian of the property of a minor who is a member of a joint Hindu family even where the minor's property is an undivided share in the family property and to sanction the alienation of the property if it is satisfied that the sale is for the benefit of the minor: Re Jagannath Ramji In re Manilal Hargovan; Narsi Tokersey & Co. v. Sachindranagh Gajanan(3) and Mahadev Krishna Rupji, In re.(4), All these cases relate to minors and property within the town and island of Bombay. The question is whether cl. 17 extends to places and minors within the Province of Bombay but outside the limits of the ordinary original civil jurisdiction, of the Bombay High Court. There is nothing in cl. 17 of the Letters Patent of 1865 to limit the jurisdiction to all persons within the town and island of Bombay and to European British subjects outside the town and island but in the Province of Bombay., In Taruchandra Ghose, In re(5) the Calcutta High Court acting under its Letters Patent, which is in the same terms as cl. 17 of our Letters Patent, exercised jurisdiction over minors and property outside the limits of its ordinary original civil jurisdiction, but in In the matter of Phanindrachandra Set the same Court denied the existence of such jurisdiction over lunatics following an earlier decision in In the matter of Srish Chunder Singh., The cases of Maharani of Baroda v. Kasturbhai and In re Govindan Nair showed that the powers of the High Court under cl. 5 of the 1823 Charter and its power to issue a writ of habeas corpus were not limited to the limits of the ordinary original civil jurisdiction of the High Court and on the analogy of the above jurisdictions the Court had jurisdiction over all infants throughout the Province of Bombay and such jurisdiction outside the town and island of Bombay was not limited to European British subjects only., The jurisdiction of the High Court over infants was similar to that exercised by the Chancery Court in England. The Chancery Court has exercised jurisdiction over infant British subjects residing anywhere in the world: Hope v. Hope If the Court has jurisdiction the difficulty of enforcing the order is no bar to making one. In In re Willoughby (an Infant),(6) the Chancery Court exercised jurisdiction over and appointed guardian of a minor British subject, domiciled and resident in France, there being no property in England. In the present case the minor and the property are within the Province of Bombay, within the Court's jurisdiction. See In re the Estate of H.G Meakin(7), The sale of property is clearly for the benefit of the minor. Orders in five similar cases have been made by this High Court. They were all made ex parte., M.C Setalvad, Advocate General, amicus ourice. The Court has no power to appoint a guardian of an undivided share of a minor in joint family property. The power contained in cl. 17 of the Letters Patent of 1865 is to appoint a guardian of the “estate of a minor”. This will not entitle the Court to appoint a guardian of the undivided interest of a minor in a coparcenary: Gharib-ul-lah v. Khalak Singh and Bindaji v. Mathurabai. In the latter case, In re Manilal Hargovan, which held that such a guardian could be appointed, was not referred to., The cases referred to and the case of In re Bijaykumar Singh Buder were Cases where the minor and the property were within the original civil jurisdiction of the High Court. On the true construction of cl. 17 of the Letters Patent, the High Court has no jurisdiction if the minor is not within the town and island of Bombay. The power over infants is the same as that vested in the Supreme Court under the Charter of 1823. The jurisdiction of the Court under cl. 23 of that Charter, which closely followed the words of 13 Geo. III, c. 63, s. 14, was limited to British subjects which meant European British subjects and to those in the service of the Crown. The jurisdiction under cl. 24 in respect of “inhabitants of Bombay” i.e all persons, was confined to suits., Clause 37 dealing with minors provides for the nature of the jurisdiction and not the persons over whom it could be exercised. To determine who can be governed by cl. 37 one has to go back to cl. 23, which alone defines the general jurisdiction of the Court and the persons amenable to it. It is limited to British subjects as then understood and servants of the Crown., The use of the words “whether within or without Bombay” in cl. 16 of the Charter of 1862 indicates that the operation of cl. 37 of the 1823 Charter was limited to the island of Bombay., Clause 37 does not impose a territorial limit or a limit as to the persons subject to the jurisdiction but the earlier clauses do contain such a limitation. The jurisdiction of the supreme Court is general in the island of Bombay; outside the island it is a special jurisdiction only over British subjects., There is no reported decision in Bombay appointing a guardian of a minor living outside the ordinary original civil jurisdiction except the case of In re the Estate of H.G Meakin. That was a case of a European British subject; and letters of administration were obtained in Bombay and the property was with the Administrator General of Bombay. In Calcutta in the case of In the matter of Sirish Chunder Singh, Sale J. disapproved of the exercise of this jurisdiction; Lort-Williams J. in Taruchandra Gh, In re disapproved the above case. There was there no question of joint family property. In In the matter of Phanindrachandra Set, Taruchandra Ghose, In re, was not followed. The only case from Allahabad is that of In the matter of Govind Prasad. The Court held it had jurisdiction but refused to exercise it. The report does not show where the property was situate., There is no decision from Madras dealing with the point in issue. The decision in Raja of Vizianagram v. Secretary of State for India deals with the meaning of the words “British subject” in the early Acts and Charters and also with the question of jurisdiction of High Courts in the matter of guardianship of the person of minors outside the original jurisdiction of the High Court. The Court held it had jurisdiction. That case is against the view I am submitting and is inconsistent with In the matter of Phanindrachandra Set It is not permissible to enlarge the scope of the operation of the Charter of 1823 by reference to the extended meaning acquired later by the words “British subject”. The jurisdiction must be limited to that exercised in 1823., Reference was also made to In re the Justices of the Supreme Court of Judicature at Bombay to show that the Supreme Court had no power to issue a writ of habeas corpus except within its local limits and outside its local limits except in reference to European British subjects or servants of the Company. The same reasoning would apply to the present case., In In the matter of Ameer Khan it was unsuccessfully contended that the writ of habeas corpus could not be directed even to a British subject outside the jurisdiction., In In re Manilal Hargovan the jurisdiction was assumed with great hesitation. The main consideration for that decision was a desire not to “imperil title” to property. No such considerations apply here. The local Courts not having jurisdiction in the matter, the remedy is by way of legislation and not by way of the High Court assuming jurisdiction., Sir Jamshedji Kanga, in reply. The case of In re the Justices of the Supreme Court of Judicature at Bombay has been regarded as a decision as to the jurisdiction of the Supreme Court over the Company's Courts in the moffusil and over the officers of the Company's Courts. [The case of In re Nataraj Iyer referred to.], The ratio in In re Manilal Hargovan is that one coparcener has a right to sell his share, and that the Court should see that the minor's share is secured for him., The cases of Gharib-ul-lah v. Khalak Sing and Bindaji v. Mathurabai were from the districts under the Guardians and Wards Act and therefore they do not affect the power of the High Court under cl. 17 of the 1865 Charter., The case of Balaji v. Sadashi shows that once the Court sanctions the sale, the minor cannot afterwards challenge it.