Beaumont, C.J:—This is a petition intituled in the matter of immoveable property situate at Navrangpura and in the matter of Ratanji Ramaji, all minors. It sets out that the petitioner is the karta of a Hindu joint family, and that the coparcenary property is vested in him, his minor sons and grandsons and his brother and minor sons of his brother, all the minor coparceners being mentioned in the title of the petition. Then the petition sets out the property of the family, and alleges that Certain debts have been incurred by the petitioner as karta on behalf of the joint family, the debts amounting approximately to Rs. 10,000. Then it is alleged that an offer has been obtained for the purchase of one item of the coparcenary property, being that mentioned in the title, for a sum of Rs. 66,000 odd, which is alleged to be a very good price, and that the purchaser in the contract has stipulated that the petitioner as guardian of the minors should obtain the necessary sanction of the Court for sale of the above land. Accordingly this petition was presented to the Court asking for the sanction of the Court to the sale of the property under the contract, and that the petitioner as manager and karta of the joint Hindu family be appointed guardian of the right, title and interest of the minors in the property, the subject-matter of the contract.
The petition was presented ex parte and it has been referred to a special bench, because it raises a question as to the jurisdiction of the Court, and we are much indebted to Sir Jamshedji Kanga, who has appeared for the petitioner, and to the Advocate General, who has been good enough to appear as amicus curice and argue against the petition, for the assistance they have rendered to the Court.
Substantially three questions arise. First, has the Court under its original jurisdiction power to make an order, such as is asked for, in the case of a minor residing within the limits of the original jurisdiction of this Court, that is to say, the Town and Island of Bombay? Secondly, if it has, does the jurisdiction extend to a minor resident in the Bombay Presidency, outside the Town and Island of Bombay? And, thirdly, if the Court has jurisdiction, ought it to exercise the jurisdiction in the present case? The second question is confined to minors resident in the Bombay Presidency, because that is the position of the minors in the present case, but I must not be taken as indicating any opinion as to what would be the position if the minors were resident outside the Presidency of Bombay.
With regard to the first point, there can be no question that jurisdiction has been exercised in the past by this Court to appoint a guardian of a minor resident within the Town and Island of Bombay entitled to an undivided interest in coparcenary property, and to sanction the sale of such property. The leading case is In re Manilal Hargovan, in which the Court, following earlier decisions of this Court, appointed the karta of a Hindu joint family as guardian of the interest of a minor in the joint family property, and sanctioned the sale by the karta of the joint family property. That case was followed by this Court in Mahadeo Krishna, In re, though in that case no order on merits was made, because the lower Court had declined to exercise jurisdiction, and this Court sent back the case to the lower Court with a direction that the jurisdiction should be exercised and for determination of the matter on merits. The learned Advocate General has argued that those cases are really inconsistent with the decision of the Privy Council in Gharib-ul-lah v. Khalak Singh. In that case their Lordships were dealing with the appointment of a guardian of the interest of a minor in coparcenary property belonging to a Hindu joint family governed by the Mitakshara law under the Guardians and Wards Act, 1890; and, in the course of the judgment, their Lordships said (p. 170):—
“It has been well settled by a long series of decisions in India that a guardian of 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 the in 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.”
Their Lordships in that case were dealing with the statutory jurisdiction arising under the Guardians and Wards Act; but the learned Advocate General argues that the reason given would extend equally to an order made by the Court under its inherent jurisdiction, the reason being that the appointment of a guardian of an undivided share in the immoveable property would be infructuous. For the reasons, which I will give later, I have no doubt that the power which this Court exercises over minors is the power derived from the prerogative of the Crown as parens patrice to protect subjects of the Crown who cannot protect themselves; and, if that be the nature of the Court's jurisdiction, it is clear that it can only be limited as to subjects within the jurisdiction of the Court by the interest of the person to be protected. No doubt, an order, which is likely to be infructuous, would normally not be for the benefit of a minor; but, if the Court thinks that it is for the benefit of the minor, I have no doubt that it has jurisdiction to make such an order. On the authorities, and on principle, I see no reason to doubt that this Court can make an order, such as is asked for in this case, in respect of minors situate within the limits of the ordinary original jurisdiction of this Court.
The second question, whether this jurisdiction extends to minors, who are British subjects, residing outside the limits of such original jurisdiction, depends on the Charters which have conferred jurisdiction upon this Court. Under the Amended Letters Patent of 1865, cl. 17, it is ordained that “the High Court of Judicature at Bombay shall have the like power and authority with respect to the persons and estate of infants, idiots, and lunatics within the Bombay Presidency, as that which was vested in the said High Court immediately before the publication of these presents.” When one turns to the Letters Patent of 1862, which were in force at the time when the Amended Letters Patent were granted, one finds that cl. 16 of those Letters Patent ordained that “the High Court of Judicature at Bombay shall have the like power and authority with respect to the persons and estates of infants, idiots, and lunatics, whether within or without the Presidency of Bombay, as that which is now vested in the said Supreme Court at Bombay.” That, no doubt, throws one back to the powers of the Supreme Court, and it is argued that the powers of the Supreme Court were limited to minors resident within the ordinary original jurisdiction. If that were so, I should be of opinion that cl. 17 of the Amended Letters Patent of 1865 and cl. 16 of the Letters Patent of 1862 conferred upon the High Court a more extensive jurisdiction than that which the Supreme Court had possessed, because both those clauses refer to minors within the Presidency of Bombay, and the only way in which on that hypothesis effect could be given to those words would be by holding that the Letters Patent conferred upon the High Court powers over infants, idiots, and lunatics within the Presidency of Bombay similar to those exercised by the Supreme Court within the Town and Island of Bombay. But, in my opinion, it is not correct to say that ‘the Supreme Court's powers over minors were limited to minors within the Town and Island of Bombay. The power in relation to minors is granted by cl. 37 of the Supreme Court Charter of 1823, which, follows immediately after cl. 36 conferring equitable jurisdiction upon the Supreme Court. By cl. 37 the Supreme Court of Judicature at Bombay was authorized to appoint guardians and keepers for infants and their estates, according to the order and course observed in that portion of Great Britain called England. I need not refer to the rest of the clause which deals with lunatics. Now, it will be observed that clause imposes no territorial limitation. But it is argued that we ought to refer back to cl. 23, which confers jurisdiction on the Supreme Court in relation to civil suits, and it is said that jurisdiction does not extend beyond the Town and Island of Bombay. In my opinion, there is no justification for limiting the words of cl. 37 conferring jurisdiction in respect of minors by reference to any other clause. The reference to the jurisdiction exercised in England seems to me to show that the jurisdiction, which it was intended to confer on the Supreme Court, was jurisdiction to exercise the powers of the Crown as parens patrice, 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. In my view, cl. 37 conferred similar powers upon the Supreme Court; and, if that is so there was no reason for restricting the powers to part only of the Bombay Presidency, since no other Court in the Presidency possessed such powers and no question of conflicting jurisdiction could arise. The powers now existing under the Amended Letters Patent, in my opinion, extend to persons under disability wherever in the Presidency they may be found, provided they are subjects of the British Crown. On that view of the matter, it is not necessary to consider the interesting and difficult question as to what exactly was meant in cl. 23 of the Charter of 1823 by the expression “British subjects,” a question which was discussed at great length and with much learning by a bench of the Madras High. Court in Raja of Vizianagram v. Secretary of State for India. In my judgment, therefore, the jurisdiction of the Court to sanction a contract for the benefit of a minor extends, at any rate, to a minor resident within the Presidency of Bombay.
I then come to the third question, whether we ought in this case to make such an order as is asked for. I must confess, speaking for myself, that I cannot see the benefit of appointing the karta of the family as guardian of the share of the minors in the property to be sold. It seems to me that an application of this sort is analogous to applications, which are very common in England, where a trustee, having power to sell property in which an infant is interested, comes to the Court to know whether he ought to exercise his power in a particular manner. The object of the application may be to save the trustee from possible actions for breach of trust in the future, or it may be to confirm the title of the purchaser. In cases of that nature it is the practice of the Judges of the Chancery Division by whom such applications are heard to consider very carefully whether the proposed sale, or whatever the transaction may be, is for the benefit of the minor, and, if so, to sanction the same. The result of sanctioning the transaction on behalf of a minor is to remove the disability of minority, and to place the parties in the same position as they would have been in if the minor was of age and approved the transaction. It seems to me that an analogous position arises when the manager of a joint Hindu family comes to the Court and asks it to sanction a sale as being for the benefit of a minor. The manager is not, of course, a trustee; but he has power to sell property, in which the minor is interested, for legal necessity or the benefit of the estate, without the consent of coparceners. Very frequently a purchaser insists on having the sanction of adult coparceners, so as to preclude them from challenging the sale in the future. A minor coparcener cannot consent because of his minority, and the object (as in the English cases) of coming to the Court and asking for its sanction on behalf of a minor is to remote the disability of minority and to protect the purchaser from attack by the minor after attaining majority, and how the position is improved by appointing the karta guardian of the minor's property, I do not follow. However, the appointment of a guardian of the share of a minor in the particular property to be sold cannot generally do any harm. As I have no doubt the Court has jurisdiction, and the contract in this case requires the appointment of the karta as guardian, I think we may make the appointment.
I am told that applications of this sort are not uncommon, and that they are normally made ex parte, as is this application. I have no doubt that learned Judges in Chambers have always taken great care in seeing that the contract is one beneficial to the minor, because this Court both in In re Manilal Hargovan (supra) and In re Mahadeo Krishna (supra) sounded a note of warning against making orders of this sort without due care. But, in my judgment, orders of this nature ought not to be made ex parte. We are, as I have said, exercising jurisdiction which is exercised in. England by the Judges of the Chancery Division, and I am very certain that no Judge of the Chancery Division would make an order, dealing with property in which a minor was interested, behind the back of the minor. In my opinion, we ought to follow the practice prevailing in England, and in a case of this sort the minors should be made respondents, to the petition, and should be represented by a guardian ad litem. Normally I think the guardian ad litem should be an officer of the Court, because it would be difficult in most cases to find an independent member of the family to consider the interest of the minor. The guardian ad litem must satisfy himself as to the interest of the minor. He may, of course, require further evidence as to the alleged necessity for the sale, and he may require further evidence as to the price being a good one, and lie will also have to consider how the proceeds of sale are to be dealt with. If he requires any funds to enable him to look into the matter proparly, the parties seeking the order must provide those funds. The object of asking for orders of this sort is to enable the joint family to get a better price for its property, and they cannot complain, if they have to pay for the privilege.
In the present case the petition should be amended by making the minors respondents, and they should appear by a guardian ad litem. We appoint Mr. Kirtikar to act as guardian ad litem. Having regard to the discussion in this Court and to the very clear evidence, that this is a beneficial sale, and having regard to the undertaking given by the karta, through Sir Jamshedji Kanga, that the minors' share in the proceeds of sale not applied in payment of debts will be sent to the Accountant General, for the account of the minors, probably the guardian ad litem will not require to go into the matter any further. But in that case he ought either to appear by counsel and express approval of the sale, or to make an affidavit to that effect. If he does not approve, his opinion will, naturally, be considered by the Court. I notice in the contract that part of the purchase money is to remain on mortgage. I see no objection to that. It is only Rs. 26,000, and, of course, the share of the minors in that amount cannot be sent to the Accountant General until it is received.
Subject to those matters we can make an order.
Kania, J.:—The matters involved in this petition may be considered under four heads:
(1) Whether the High Court has original jurisdiction to appoint a guardian of the property of a minor, who is resident outside its original civil jurisdiction and whose property is also outside the same but within the Bombay Presidency.
(2) Whether a guardian of a minor member of a joint and undivided Hindu family may be appointed under the original civil jurisdiction of the High Court.
(3) Whether, assuming that the High Court has jurisdiction, an alternative relief could be granted by the Court having jurisdiction over the place where the minor resides or has property.
(4) Assuming that the Court has jurisdiction, should it exercise it and grant sanction for the sale?
In dealing with the first point, the question of jurisdiction has to be considered under the Guardians and Wards Act, 1890, or the general jurisdiction of the High Court founded on the Charter establishing the same. It is clear that the application being for the appointment of a guardian of a minor's interest in immoveable property, when there is a joint Hindu family, no application could be made under the Guardians and Wards Act. All argument is set at rest on that point by the Judicial Committee of the Privy Council: see Gharib-ul-lah v. Khalak Singhs The jurisdiction of the High Court under the Charter is expressly saved by the last portion of s. 3 of the Guardians and Wards-Act. In order, therefore, to determine whether the High Court has jurisdiction under the first heading, it is necessary to refer to its Charter.
The Supreme Court was first established in India at Fort William in or about 1772 in pursuance of 13 Geo. III, c. 63. It was established in Bombay in pursuance of 4 Geo. IV, c. 71, and the Charter establishing the Supreme Court was granted in 1823. It is relevant to refer to this Charter, because the later Charters refer to the jurisdiction of the Supreme Court originally established. In the order, of dates, the High Courts Act was passed in 1861, and ss. 8 and 9 give authority to the Sovereign to establish a High Court under the Royal Charter. In pursuance of that, the Charter of 1862 was granted. Clause 16 of that Charter relates to the jurisdiction over minors. Then came the Charter of 1865, under which the High Court is functioning at present, and cl. 17 relates to minors. It provides that the High Court shall have the like power and authority with, respect to the persons and estate of infants, as that which was vested in the High Court before the publication of those presents. It is to be noticed that in this clause there is a clear reference both to “persons” and “estate”. Clause 16 of the Charter of 1862 similarly refers both to “persons” and “estates” of infants, idiots and lunatics, and mentions that the High Court established shall have the like power and authority as that which was vested in the Supreme Court at Bombay. Clause 37 of the Charter of 1823, which has been quoted in the judgment of the learned Chief Justice, does not specify any limitation on jurisdiction on the ground of residence or property of the infants or lunatics. By cl. 36 the High Court was invested with the powers exercised by the Court of Chancery in England. If these clauses were read by themselves, there appears no doubt that the High Court had jurisdiction which was vested in the Crown as parens patrice that is over every person who was a minor and who owed allegiance to the Crown. In that view, wherever the minor be or wherever his estate be, the High Court has jurisdiction over him. We are indebted to the learned Advocate General for putting before us the different aspects of the Charter. It was pointed out by him that cl. 23 contained a marginal note “The Jurisdiction of the Court defined”. He pointed out that the jurisdiction of the Court was defined by cl. 23, while the subsequent clauses only stated the different matures, as contrasted with the extent of the jurisdiction of the Court. This argument overlooks the point that marginal notes do not control the interpretation of statutes and do not form part of the statutes. This was pointed out in Thakurain Balraj Kunwar v. Rae Jagatpal Singh. Moreover, it should, be noticed that the jurisdiction of the Court defined in cl. 23 does not in any way control the general words in cl. 37. Indeed, cl. 23 relates to suits and matters nature, while cl. 37 is founded on the principle that the Sovereign stands in loco parentis to all minors.
If, therefore, the question has to be considered on the construction of the High Courts Act and the different Charters, it appears that the High Court has jurisdiction over minors wherever they be, provided they owe allegiance to the Sovereign. On this point numerous authorities were cited. I shall briefly consider them.
I shall first deal with the English cases. In Hope v. Hope it was held that the Court had jurisdiction to appoint a guardian of a British child who was born outside; and in In re Willoughby (an Infant) it was held that the Court had jurisdiction to appoint a guardian of a child who was English by nationality, although French by domicile. So far as Indian cases are concerned, in Bombay there is no authority. In In re Jagannath Ramji Mr. Justice Starling considered that the Court of Chancery, in England had jurisdiction to appoint guardians of infants, whether such infants had property or not. In In re the Estate of H.G Meakin the question of the appointment of a guardian arose where the minors were at Poona, and one of them was in England. The parties were British subjects, but letters of administration to the estate of the deceased parent were granted in Bombay and the property was with the Administrator General in Bombay. It may, therefore, be considered that in that case the property of the minor was within the jurisdiction, and the larger question did not arise. Our attention is drawn to three decisions of the Calcutta High Court. In In the matter of Srish Chunder Singh the Court refused to appoint a guardian of the person and property of an infant who was not an European British, subject and who was living outside the limits of the ordinary original civil jurisdiction of the Court, there being testamentary guardians in existence and there being no application to remove them. It was held that there was no precedent and there being no difficulty in administration the summary procedure cannot be availed of. The words of the Charter are not construed. The jurisdiction under the Guardians and Wards Act was considered, and it was pointed out that as there were testamentary guardians, the Court would not appoint a guardian under that jurisdiction. In Taruchandra Ghosh, In re an ex parte order was made appointing a guardian where the minor and his property were outside the limits of the ordinary original jurisdiction of the Court; but it must be pointed out that the case was governed by the Dayabhaga law, and the estate of the minor was a divided share received on partition. This aspect of the case has to be borne in mind in considering the second head to be dealt with here. In In the matter of Phanindrachandra Set the decision in Taruchandra Ghosh, In re (supra) was not followed and impliedly disapproved, although in terms it was distinguished. It was a case of a lunatic. It was considered that s. 14 of 13 Geo. III, c. 63, limited the jurisdiction to persons within the area of Fort William, and for that purpose the learned Judge quoted a portion of that particular section. It may be noticed that the whole of the section does not appear to have been fully looked at and the words of the clauses relating to minors and conferring the Chancery jurisdiction are not scrutinised. In In the matter of Govind Prasad it was held that the Court had jurisdiction in such a case, but for reasons considered in the judgment it did not consider it expedient to exercise it. In Madras there are two interesting decisions, which discuss the clauses of the Charter in detail. They are Raja of Vizianagram v. Secretary of State for Indian and In re Govindan Nair In the last case the question was in respect of the power of the Court to issue writs of habeas corpus outside Presidency Towns. In the course of his judgment Schwabe C.J relied on the jurisdiction of the King's Bench Division in England to determine the limits of the High Court's jurisdiction. He observed (p. 926):—
“This Court has, however, succeeded under the High Courts of Judicature in India Act, 24 and 25 Vic., C. 104, and the Letters Patent issued thereunder to all the powers of the Supreme Court of Madras.”
It was held that the Court had jurisdiction to issue writs of habeas corpus outside Presidency Towns. In a later Privy Council case it has been held that this jurisdiction has been limited by s. 491 of the Criminal Procedure Code, but that does not affect the interpretation of the clauses of the Charter. In Raja of Vizianagram's case, in a carefully considered judgment, there is an elaborate discussion about the construction of the different clauses of the Charter relating to infants. The Court held that the jurisdiction of the Supreme Court over infants, which the High Court inherited, was not limited to the City of Madras, and, outside the city limits, to European subjects only, but it extended to the native Indians outside the City of Madras. The Court then proceeded to further consider whether the expression “British subjects” found in the original Charter had an enlarged meaning by reason of the Crown taking over the possessions of the East India Company so as to include Indian subjects also. In the opinion of the Court the meaning of that phrase was widened to that extent. That case is therefore a direct authority in support of the applicant's contentions. In Maharani of Baroda v. Kasturbhai the Bombay High Court had occasion to consider the power of the Court to direct its Sheriff to execute its warrant outside the jurisdiction. That is not a case dealing with cl. 37, although certain observations in that case support the conclusion that the Court had in certain matters jurisdiction under the Charter beyond the limits of its original civil jurisdiction. The Advocate General further drew our attention to In re the Justices of the Supreme Court of Judicature at Bombay In that case the question was to execute a writ of habeas corpus issued by the High Court in respect of two persons, one being the gaoler at Thana and the other a resident of Poona. There is no judgment, but the arguments are set out in extenso. The order of the Privy Council tendering advice to the Crown is only printed. The conflict there was between the order of the High Court and the execution thereof by the Courts of the Company as they existed. It does not deal with the jurisdiction of the High Court over minors beyond the limits of its original civil jurisdiction.
In this state of case-law, it appears that there is nothing in the words of cl. 37 to exclude infants, who are outside the limits of the ordinary original civil jurisdiction of the Court, but who are stated in this case to be within the Bombay Presidency from its operation. The weight of judicial decisions is in favour of that view.
Coming to the second head, under which can be considered the appointment of a guardian of a minor member of a joint and undivided Hindu family, the question is somewhat intricate. It has been pointed out by the Privy Council in Gharib-ul-lah v. Khalak Singh that as there is no separate property of a minor in a coparcenary, there is no jurisdiction of the Court to appoint a guardian of such property under the Guardians and Wards Act. That decision does not touch the question of the general jurisdiction of the High Court founded on the Charter establishing the same. The jurisdiction of the mofussil Courts is confined to what is conferred on them by the different Acts of the Legislature. Apart from the Guardians and Wards Act the Courts in the districts have no jurisdiction in respect of the minor's property or person on the civil side. Therefore, the Court at Ahmedabad in this case has no jurisdiction to appoint a guardian of the undivided interest of the minors' property.
The question of the jurisdiction of the High Court on its original side in respect of infants in Bombay came to be considered fully in In re Manilal Hargovan The Court appointed a guardian of the property of the minor on the ground that by long practice it was permitted and to question the jurisdiction might upset many titles to properties. It accorded its sanction to the sale of the whole property on the terms and conditions therein mentioned. In that case the Court was asked to make the appointment of a guardian of the interest of a minor when he was a member of a joint and undivided Hindu family. In the course of argument Sir Lawrence Jenkins inquired why the karta wanted to be appointed a guardian, since as manager of the family he had a right to deal with the family property. The report shows that counsel urged that the person who desired to purchase thought that he would get a better title if a guardian of the minor's share was appointed and the Court's sanction given to the sale, and that the minor could not thereafter question the sale as he might do if it were made by the manager in that capacity alone. Sir Lawrence Jenkins pointed out that was the difficulty in the way of granting the application, as that would take away the minor's right thereafter to question the sale, if he thought proper to do so. Counsel, who appeared in support of the petition, stated (p. 355):
“That is a right that need not be considered in this case. We are willing to protect his rights in every way.”
The facts further show that on behalf of the petitioner it was pointed out that in the Bombay Presidency the adult members of a joint Hindu family had a right to sell their individual shares, and the petitioner offered that in respect of the minor's share without any reduction, the whole of it might be safeguarded by being deposited with the Accountant General. Sir Lawrence Jenkins in his judgment emphasized this aspect and pointed out that the result of granting the order was not in any way to prejudice the minor, because the minor could have no higher right than to have a half share in the property which was to be sold, and the result of refusing the order would be to give him less price than was realised. The whole of the debt, which was there stated to exist, was offered to be paid out of the adults' share, and it was pointed out that by refusing the order the Court would permit the manager to retain in his hands, although perhaps a smaller amount, not only his share of the sale proceeds but also the minor's share thereof. Under those circumstances, the Court made the order keeping intact the whole amount which came to the minor's share.
That decision has been the foundation of similar applications thereafter made. I have emphasized this, because the later decisions have gone far beyond this decision in fact and in substance. That decision did not decide in terms what was the effect of the order on the interest of the minor because it was pointed out that in no view of the law, on the facts of that case, the minor's interest could be considered adversely affected by the order to be made. Later applications were mostly made because when the “Karta” wanted to sell the property, the purchaser insisted that the Court's sanction should be obtained and made that a term of the agreement of sale. The later line of applications should, therefore, be considered from that aspect. In Narsi Tokersey & Go. v. Sachindranath Gajanan the question whether a guardian of an undivided interest of a minor in a joint Hindu family residing in Bombay should be appointed was considered and it was affirmed, following In re Manilal Hargovan, that such appointment could be made on the original side of the High. Court, under its general jurisdiction. This was after the Privy Council decision in Gharib-ul-lah's case. The later decisions of this Court, including Mahadeo Krishna Rupji, In re affirm that jurisdiction of the Court to appoint a guardian of a minor so placed. In In re Bijaykumar Singh Buder this view of the Bombay High Court was adopted, and a guardian of a minor member of a coparcenary was appointed. Therefore, on the ground that for a long time the High Court has appointed a guardian of the undivided share of a minor member of a joint Hindu family, the Court should not now depart from the practice and refuse to appoint a guardian. Under the circumstances, I agree that in respect of the undivided share of a minor the High Court has inherent or general jurisdiction to appoint a guardian.
Coming to the third head as to whether any alternative relief is available, it has been pointed out that in the mofussil no suit to appoint a guardian is permissible under the Guardians and Wards Act. Besant v. Narayaniah decided that. The jurisdiction of the mofussil Courts in respect of minors' property and person is limited by the Guardians and Wards Act, and, therefore, so far as the mofussil Courts are concerned, there is no alternative remedy. It was urged by the learned Advocate General that this may be a ground for bringing in fresh legislation, but is not a ground for this Court extending its jurisdiction. In my opinion we are not however extending the Court's jurisdiction. This point is considered only to meet the argument that an alternative relief exists in the mofussil Court and the applicant should be asked to apply to that Court rather than invoke the inherent jurisdiction of the High Court.
This brings me to the last head viz., whether it is expedient to exercise the jurisdiction which exists in this Court. Different arguments have been advanced at different times in support of such applications. It is contended that this is a term of the contract, which gives the joint family a better price or that the purchaser claims that he must have a good title, and, therefore, the Court should sanction the sale. It is sometimes alleged that the purchaser is entitled to see that evidence is preserved, and if he takes the property without obtaining the sanction of the Court, after twenty or thirty years when the question arises, he may find it difficult’ to prove his title. There is a considerable force in these contentions. But each of them may be capable of being satisfied by an order obtained under such applications and in other ways also. The purchaser's right to have a good title is undoubted. The application, which is made here, calls for a greater degree of proof to be led before the Court than what may be sufficient from the purchaser's point of view. The authorities on Hindu law show that a purchaser buying property from a manager of a joint family is not obliged to prove as a fact that there was legal necessity or benefit to the estate. It is sufficient for him to show that he had made at the time of purchase bona fide inquiries, and as a reasonable man was satisfied about the necessity or benefit. When the matter is brought before the Court on such application, it has to be recognised that the Court is called upon to make an effective order so as to bind the minor, and the Court will require a higher degree of proof than merely establishing a prima fide case which would satisfy on reasonable inquiries a bona fide purchaser. In making a contract with a term of this kind the parties have, therefore, to recognise that they are taking upon themselves a greater liability of proof before a Court. It is true that a purchaser several times is faced with the question after a number of years. But I may point out that the difficulty could be met by obtaining affidavits from the parties and preserving extracts from books of account or certified copies thereof. All these may be well preserved as documents of title. As I have pointed out, the degree of proof, which the Court will require when making an order which is binding on minors, is bound to be far-higher than mere satisfaction to a bona fide purchaser on his making reasonable inquiries. These observations are meant only to caution parties before they make this a term of the contract. They may, if they are so minded, achieve the result by preserving proofs in respect of the bona fides of the purchase transaction. I may point out also that in considering applications of this kind the Court has to inquire into the debts which are stated to exist. Normally a purchaser may consider that an antecedent debt has to be paid, and if there is reasonable proof of its bona fides and necessity, the requirements of law may be satisfied. When the question comes to be considered by the Court, the Court may have to go into greater details and to find out that the debts were binding. The fact that they were antecedent debts may not be sufficient for the Court passing the order, realising that the order is binding on the interest of the minor. These points have to be considered carefully in applications which are made to Court. Under the procedure which is now suggested in the judgment of the learned Chief Justice all minor's interests have to be scrutinized very carefully, and different aspects will have to be born in mind in disposing of these applications.
These points had not arisen in In re Manilal Ilargovan, because there the whole of the minor's interest, without any deduction, was sought to be safeguarded, by being deposited with the Accountant General. As I have pointed out, the applications, which are based on that, but which go much beyond the scope of that case, have to be considered from different aspects, because they involve larger questions which, are not dealt with in that decision.
In the present case the transaction is shown on the affidavits to be clearly beneficial to the family. It is in the nature of a windfall. The interest of the minors is shown to be safeguarded, and in the order which will ultimately be made in Chambers on this petition the necessary safeguards will have to be retained.
Having regard to these facts, I agree that in this case, with the safeguards suggested in the judgment of the learned Chief Justice, the order may be made.
Somjee, J.:—I agree, and I have nothing to add.
Per Curiam. We refer the matter back to the Chamber Judge for necessary orders.
Costs of this hearing to be dealt with by the Chamber Judge.
Attorneys for petitioner: Messrs Kamdar & Co.
Order accordingly.
N.K.A
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