Jhabhu Singh vs Ganga Bishan

Burkitt, J.—In this case it is admitted that the appellant and the father of the minor were the sons of one father, though by different mothers. I do not comprehend what the learned Judge of the Court below means when he describes them as "foster brothers." The status of the family at present is that of a joint Hindu family possessed of property as such. The presumption of law to that effect is particularly strong in the case of brothers. No allegation of severance or partition between the brothers was made by the respondent. The only thing he said was that they were not on good terms with one another, and occupied separate houses, a matter which is quite consistent with their constituting a joint and undivided family. The minor having taken his father''s position in the family, and there being no allegation of any partition or severance after the death of the minor''s father, it is clear that the minor and his uncle, the appellant, are members of a joint undivided family possessed of property as such.

It is not alleged that the minor possesses any property or any interest in any property other than his interest in the joint property of the family. That being the case, I am of opinion that under the Guardian and Wards Act (VIII of 1890) the Court below had un power to appoint a guardian of the minor''s property. It was so held by a Full Bench of the Bombay High Court in the case of Virupakshappa v. Nilgangava ILR 19 Bom. 309 and by the Calcutta High Court in the case of Sham Kuar v. Mohanunda Sahoy ILR 19 Cal. 301.

In the rule of law laid down by those Courts, and in the reasons given for it, I fully and without reserve concur. Adopting that rule, I, as far as the present appeal is concerned, allow the appeal and discharge the order appointing the respondent, Ganga Bishan, to be guardian of the property of the minor. But at the same time I see no reason for varying that part of the order which appoints Ganga Bishan to be the guardian of the person of the minor. That portion of the order of the lower Court will stand. As appellants have partly succeeded and partly failed, I make no order as to costs.