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Report No. 83

Appendix 2

History of The Law in India

I. Introductory

Impact of the British rule and nature of early legislation.- Evolution of the law of guardianship in India is one of the most interesting chapters in Indian legal history. The earlier developments in this field are vitally and integrally connected with the British rule and its impact on Indian legal institutions.

The British Government's original-and most important-non-trading activity in India was the collection of land revenue. To facilitate the collection of revenue from minors' estates, legislation became necessary. The second most important function of the British Government was the administration of justice. For the representation of minors in litigation, again, legislation was necessary.

Litigation in those times was concerned mostly either with revenue or with proprietary matters. Early legislation relating to minors and guardians was therefore predominantly concerned with proprietary aspects. There was also an immediate need for regulating the affairs of European British subjects. This need resulted in the passing of a specific Act1 applicable to European British minors.

Judge-made law.- However, side by side with this legislative development, another silent change was taking place through judge-made law. The West was gradually having its impact on some parts of personal law of the Hindus who-first in the Bengal Presidency and later in big towns of the Bombay and Madras Presidencies-were coming into close contact with the ruling class, thereby imperceptibly imbibing some of their customs and practices. It was through this process that the practice of making wills (a practice which itself had travelled from the Roman law to the common law) came in vogue and gained recognition as part of the Hindu law as administered in British India.

Roman law had a system2 of appointing testamentary guardians, and the appointment of a guardian by will also came to be recognised amongst Hindus. In a case of 1807 referred to by Strange,3 the Pandit recognised, apparently as a matter of course, that the father's testamentary nomination of his brother as guardian should prevail against the claim of the natural guardian, the widow. The power of a father to appoint a guardian for his minor son by will was again recognised in a case reported4 in 1867.

All these developments supplied the material that formed the content of the law of guardianship as it existed in the latter half of the 19th century.

Fragmented structure.- However, social and political conditions-and the accidents of history-were responsible for a fragmented structure of the legislation on the subject. Uniformity and coherence were to a large extent lacking. For example-speaking of want of uniformity-the following peculiar features of the position before 1890 may be mentioned:

(a) different laws5 were in force in different local areas, such as the Bengal Presidency, the Bombay Presidency and the Madras Presidency;

(b) there were differences as regards the rules applicable to European British subjects and the rules applicable to others;

(c) there were also differences as between the jurisdiction exercisable by Chartered High Courts and the jurisdiction vested in other Courts-a difference which, to some extent, is continued6 even by the Act of 1890.

1. The European British Minors Act (13 of 1874).

2. For Roman Law, see Appendix 3.

3. Strange Hindu Law, Vol. 2, p. 72.

4. Soobah Doorgah La! Jha v. Rajah Neelanand Singh, (1867) 7 WR 74 (Cal).

5. Details will be found, infra.

6. Section 4, Act of 1890; section 12, Proviso, Hindu Minority and Guardianship Act, 1956.

The Guardians and Wards Act, 1890 and Certain Provisions of the Hindu Minority and Guardianship Act, 1956 Back

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