1. This is an appeal from the order of the District Judge of Shahabad rejecting an application to appoint a guardian in respect of the property of a minor, who is a member of a joint and undivided Hindu family governed by the Mitakshara law. The minor in question is the youngest of four brothers; the eldest of whom has, since the death of their father in 1886, been managing the entire joint family property. Admittedly the minor has no separate property. The Judge in the Court below has held that Act VIII of 1890 (the Guardians and Wards Act) does not contemplate or authorize the appointment of a guardian in respect of the property of such a minor. And the sole question is whether that view is correct. It is not denied that under Act XL of 1858 it has been uniformly held in this Court that no guardian could be appointed in respect of the property of a minor member of a joint Mitakshara family, owning no separate estate. The learned Judge has referred to and relied on those rulings; but it is contended on the appellant's behalf that in those cases the Courts had proceeded upon the meaning to be attached to the word "charge" in Act XL of 1858; and as that word does not occur in the present Act, the decisions under the old statute are not applicable to the matter in issue in the present appeal. In order to determine whether there is any such substantial difference between the two Acts as is contended for, it is necessary to refer only to Sections 3 and 4 of Act XL of 1858. Section 3 runs thus:

2. Every person who shall claim a right to have charge of property in trust for it minor under a will or deed, or by reason of nearness of kin, or otherwise, may apply to the Civil Court for a certificate of administration; and no person shall be entitled to institute or defend any suit connected with the estate of which he claims the charge until he shall have obtained such certificate. Provided that, when the property is of small value, or for any other sufficient reason, any Court having jurisdiction may allow any relative of a minor to institute or defend a suit on his behalf, although a certificate of administration has not been granted to such relative."

3. And Section 4 says:

Any relative or friend of a minor in respect of whose property such certificate has not been granted, or, if the property consist in whole or in part of land or any interest in land, the Collector of the district, may apply to the Civil Court to appoint a fit person to take charge of the property and person of such minor.

4. In the present Act the word "care" has been substituted for the word "charge" in Act XL of 1858. Section 4, Sub-section 2 of Act VIII of 1890 runs thus:

'Guardian' means a person having the care of the person of a minor or of his property, or of both his person and property.

5. It is contended that the word "charge" means an actual and physical possession of the property, which is not implied by the word "care;" and that consequently the decisions referred to by the Judge, in which it was held that a guardian could not be appointed in respect of the property of a minor member of a joint Mitakshara family, and which proceeded entirely on the meaning of the word "charge," are inapplicable to the present Act, the substitution of the word "care" showing the intention of the Legislature that physical possession is not necessary. It seems to me, however, that there is no force in this argument. The preamble of Act XL of 1858 expressly declares that that Act was enacted "to make better provision for the care of the persons and property of minors not brought under the superintendence of the Court of Wards." The use of the word "charge" in the body of the Act would imply that the words "care" and "charge" are interchangeable. The charge of a property involves its "care," and its "care" implies its being under the control of the person charged with its care. The duties of the guardian under the present Act are substantially the same as under Act XL of 1858.

6. Section 27 declares:

A guardian of the property of a ward is bound to deal therewith as carefully as a man of ordinary prudence would deal with it if it were his own, and, subject to the provisions of this chapter, he may do all acts which are reasonable and proper for the realization or protection or benefit of the property.

7. How can the guardian "deal" with the property unless it is in his actual control? But Section 41, Sub-section 3 shows clearly that the Act contemplates actual possession or control on the part of the guardian over the minor's property. It runs thus:

When for any cause the powers of a guardian cease, the Court may require him or, if he is dead, his representative to deliver as it directs any property in his possession or control belonging to the ward, of any accounts in his possession or control relating to any past or present property of the ward.

8. No inference, therefore, can be derived from the mere use of the word "care" in the present Act that the Legislature intended to alter the law so as to affect materially the status of a joint Mitakshara family.

9. The only difference between the two Acts is that XL of 1858 was imperative, whilst the present enactment is permissive. Under the old Act no person was entitled to institute or defend any suit connected with the estate of a minor unless he had obtained a certificate, or unless the estate was of small value. Under the present Act the Court has the power of appointing a next friend or guardian for any suit for or against a minor, but it is not necessary that the person so appointed should be a guardian under the Act.

10. It was next contended that the decisions relied on by the Judge had been virtually over-ruled by the Privy Council in the case of Durgapersad v. Keshopersad Singh I.L.R. 8 Cal. 656; L.R. 9 I.A. 27. An examination of that case, however, would show that that is not so. The only question in that case was whether the minors were properly represented in a suit in which they were sued along with their uncle, who was described as their guardian, and whether the decree obtained by the appellant Durgapersad was binding upon them. Their Lordships decided that they were not properly represented. No question as to whether a guardian of the property of a minor member of a joint Mitakshara family can or cannot be appointed was gone into.

11. In Narsingrav Ramchandra v. Venkaji Krishna I.L.R. 8 Bom. 395 the Bombay High Court took the same view of the decision of the Privy Council in the case of Durgapersad. The learned Judges there said:

"The circumstances of the case before the Judicial Committee were of a peculiar nature. A member of a joint family, who was neither the guardian of certain minors nor the manager of the family estate, had affected to deal with the interests of the minors by executing a money bond in the names of himself and them, and a decree had been obtained by the obligee against the real manager personally and as guardian of the minors in virtue of his being the co-proprietor and manager of the estate; and the object of the suit, by the quondam minors, was to prevent the obligee from executing his decree against thorn. Their Lordships held that 'the manager, although he may have the power to manage the estate, is not the guardian of infant co-proprietors of that estate for the purpose of binding them by a bond or for the purpose of defending suits in respect of money advanced with reference to the estate;' and they proceeded to consider the provisions of the Bengal Minors' Act, XL of 1858, which corresponds in most particulars with the Bombay Minors' Act, XX of 1864. No doubt it would seem, from their Lordships' remarks on the Act, that an application for the appointment of an administrator of the interest; of minors in a joint family estate is contemplated, but it is obvious that their Lordships were not considering the general principle of the Act with reference to the estate of an undivided Hindu family, and we think their observations must be read strictly with reference to the particular case then under consideration."

12. It seems to me, therefore, that it is not correct to say that the older cases, on which the Court below has relied, were either expressly or impliedly overruled by the Privy Council, or that, owing to the difference in the phraseology of the two Acts, they cannot be used for the purpose of construing the later statute.

13. In the view, however, I take of the status of a member of a joint and undivided Hindu family, governed by the Mitakshara law, and of the provisions of Act VIII of 1890, I consider it unnecessary to discuss the rulings referred to by the Judge.

14. The position of a Mitakshara family, as is well known, is widely different from that of one governed by the Dayabhaga law. In the case of the latter each member owns a particular and defined share in the family property; and although, until partition; his specific share is not capable of identification, he is entitled at any time to claim even without partition the income of his own share from the managing member. A Mitakshara family stands on a different footing. As their Lordships in the Privy Council lay down in clear terms in the case Appovier v. Rama Subba Aiyan 11 Moo.I.A. 75(89) : "According to the true notion of an undivided family in Hindu law, no individual member of that family, whilst it remains undivided, can predicate of the joint and undivided property, that he, that particular member, has a certain definite share. No individual member of an undivided family could go to the place of the receipt of rent and claim to take from the collector or receiver of the rents a certain definite share. The proceeds of undivided property must be brought, according to the theory of an undivided family, to the common chest or purse, and then dealt with according to the modes of enjoyment by the members of an undivided family. But when the members of an undivided family agree among themselves with regard to particular property, that it shall thenceforth be the subject of ownership, in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject-matter so agreed to be dealt with; and in the estate each member has thenceforth a definite and certain share, which he may claim the right to receive and to enjoy in severalty, although the property itself has not been actually severed and divided." Until partition there is absolute unity of ownership. No member can ask for his share of the rents and profits. Every member has an interest in the joint-family property; he has a right to use the family property along with the others, and he has a right to demand the ascertainment and allotment of his share by partition. But until it is so ascertained, what is there in, the case of a minor to appoint a guardian of? The guardian under the Act has the power of dealing with property, of receiving the rents and profits, and he is accountable for the due administration of the estate of his ward. But how is that possible under the peculiar circumstances of a Mitakshara family? To introduce a guardian of a share which is unascertained and unspecified would be to disorganize the family and to bring about a separation without a partition and to alter in effect the devolution of property. This difficulty was perceived and appreciated by the learned pleader for the appellant, who argued the case with considerable ingenuity. He suggested that a guardian in such a case need not have the control of any property; he would only watch the interests of the minor and exercise a sort of supervision over the kurta. But the Act contains no warrant for the appointment of such a guardian. A guardian under the Act is one for the "care" of the minor's property for the purposes of due administration; to deal with it as the proprietor would have been able to do had he been, sui juris, subject to certain restrictions. There is no provision in the Act for the appointment of a person "to watch" the interests of a minor The kurta is, to all intents and purposes, the sole manager on behalf of the minor as well as adult members, if any. If he misuses his position, there is an easy remedy provided by law. But to introduce another person to watch the kurta's dealings would be productive of serious evil; it would paralyse the proper management of the joint estate and tend to strife and disunion.

15. For these reasons I am of opinion that the order of the learned Judge is correct, and that this appeal should be dismissed with costs.

Macpherson, J.

16. I agree that the appeal must be dismissed. Act XL of 1858 was held not to apply to the guardianship of the property of a minor who was a member of an undivided family governed by the Mitakshara law. The provisions of Act VIII of 1890, which repeals Act XL of 1858 and consolidates and amends the law relating to guardian and ward, do not seem to be in any way more applicable. I do not think it was intended to alter the law in this respect, or that the Act has the effect of altering it.