Manilal Maganlal and Another vs Kalidas Manilal and Others

P.N. Bhagwati, J.—This is a petition filed by the petitioners for an order that the petitioners be appointed guardians of the undivided share of

the minor respondents in the property particularly described in Exhibit A to the petition and that the agreement of sale of the said property

mentioned in the petition be sanctioned as being for the benefit of the minor respondents and that the petitioners as guardians be authorised to

complete the sale on behalf of the minor respondents. The order is sought from this Court in the exercise of its inherent jurisdiction. When this

petition was presented, I entertained some doubt as to whether this Court has inherent or general jurisdiction to appoint a guardian of the undivided

share of a minor in a joint Hindu family and to sanction the sale on behalf of the minor. I, therefore, asked the learned advocate appearing for the

petitioners to address full arguments to me on this point. Since the petition is at this stage ex parte, I requested Mr. Kaji to argue amicus curiae and

to present the opposing point of view if any.

Mr. Joshi, the learned advocate for the petitioners has contended that prior to the coming into force of the Bombay Reorganisation Act, 1960,

the High Court of Bombay had inherent or general jurisdiction to make an order appointing a guardian of the undivided property of a minor not

only in case of minors residing within the town and island of Bombay but also in case of minors residing outside the town and island of Bombay but

within the State of Bombay provided they were citizens of India and that since the High Court of Bombay had that jurisdiction in respect of minors

residing within the territories which now form part of the State of Gujarat, this Court has inherited that jurisdiction by virtue of the provisions of

Section 30 of the Bombay Reorganisation Act, 1960.

In support of his arguments Mr. Joshi has relied upon a judgment of the Bombay High Court, In re Ratanji Ramaji 43 Bom LR 926 : (AIR 1941

Bom 397) (SB). In that case a Special Bench of the Bombay High Court held that the High Court of Bombay had, under its general jurisdiction,

power to make an order appointing a guardian of the undivided property of a minor who was a member of a joint Hindu family and who resided

within the limits of its original jurisdiction, that is to say, the town and island of Bombay, and that such jurisdiction extended also to a minor in a

joint Hindu family, who was a British subject and who resided within the presidency of Bombay. The source of that jurisdiction was traced to the

prerogative of the Crown as parens patriae to protect subjects of the Crown who cannot protect themselves. Reliance was placed on Clause 37 of

the Charier of the Old Supreme Court of Bombay, Clause 16 of the Letters Patent of 1862 and Clause 17 of the amended Letters Patent of 1865

and the conclusion was reached that the High Court of Bombay could, under its inherent or general jurisdiction, appoint a guardian of the undivided

property of a minor who was a member of a joint Hindu family even if the minor resided outside the town and island of Bombay but within the

State of Bombay.

Mr. Kaji who has argued the matter amicus curiae has also pointed out to me that the same view has been taken by the High Courts of Calcutta

and Madras and both the said High Courts have held that the jurisdiction to appoint a guardian of the undivided property of a minor who is a

member of a joint Hindu family extends to all minors resident within the limits of their respective territorial jurisdictions.

A Full Bench of this Court has recently held that the judgments delivered by the High Court of Bombay prior to 1-5-1960 are binding on this

Court. It must therefore follow, having regard to the decision of the High Court of Bombay repotted in 43 Bom LR 926 : (AIR 1941 Bom 397)

that prior to 1-5-1960 the High Court of Bombay had inherent or general jurisdiction to appoint a guardian of the undivided property of a minor

who was a member of a joint Hindu family and who was residing in the territories now forming part of the State of Gujarat. Now Section 30 of the

Bombay Reorganisation Act, 1960 which has been relied on by Mr. Joshi runs as under;

Jurisdiction of Gujarat High Court: The High Court of Gujarat shall have, in respect of any part of the territories included in the State of

Gujarat, all such jurisdiction, powers and authority as, under the law in force immediately before the appointed day, are exercisable in respect of

that part of the said territories by the High Court of Bombay"".

It is clear from a plain reading of this section that since the High Court of Bombay had inherent or general jurisdiction to appoint a guardian of the

undivided property of a minor who was a member of a joint Hindu family and who was residing in the territories now forming part of the State of

Gujarat, this Court has the same jurisdiction by virtue of the provisions of this Section.

I, therefore, hold that this Court has, under its inherent or general jurisdiction, power to make an order appointing guardian of the undivided

property of a minor who is a member of a joint Hindu family and who resides within the territories forming part of the State of Gujarat. The petition

is accepted and Mr. V. J. Merchant, the Deputy Registrar of this Court is appointed guardian-ad-litem of the minor respondents and the hearing of

the petition is fixed on 7-10-1960.