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Report No. 83

IV. Position Before 1890, The Acts And The Regulations

Position before 1890.- It is now time to discuss the position in India before the Act of 1890. Before 1890, there was no all India Act dealing with the guardianship of minors. The matter was governed, in part, by several scattered Acts or Regulations and, in part, by certain uncodified rules of personal law. The principal legislative measures may be enumerated:

(1) Act 40 of 1858 (The Bengal Minors Act), originally applicable to the Bengal Presidency, but later also extended to the Punjab, Oudh etc. This Act did not apply to minors who were European British subjects, nor to persons under the superintendence of the Court of Wards.

(2) Act 9 of 1861 (An Act to amend the law relating to minors). This Act made certain provisions supplementing the legislation relating to minors. It was not applicable to European British subjects.

(3) The Bombay Minors Act (20 of 1864) applicable to the Bombay Presidency. It did not apply to European British subjects.

(4) (a) Madras Regulation 5 of 1804 and certain other Regulations of the Madras Code, which were applicable to the Madras Presidency. These did not apply to European British subjects, or to persons under the superintendence of the Court of Wards.

(b) Madras Minors Act (14 of 1858).

(5) The European British Minors Act (Act 13 of 1874), relating to the guardianship of European British minors. It did not apply to territories within the jurisdiction of the Chartered High Courts.

(6) Provisions in the charters of the Chartered High Courts.

The legislation of 1858, 1864 etc. merely conferred expressly a certain jurisdiction on the courts and defined exactly the position of those who availed themselves of, or were brought under those Acts.1-2

History of legislation on guardianship.-The genesis of these Actsis of interest. Soon after the establishment of the Court of Wards in Bengal,3 it was found necessary to give to the Civil Courts powers to nominate guardians of minors over whom that Court possessed no power.4

The first major step in this direction was the enactment of Bengal Regulation 1 of 1800, which authorised Zillah Judges, where there were no testamentary guardians to nominate guardians to disqualified landholders not subject to the authority of the Court of Wards. This Regulation, with others relating to the same subject, was repealed by the Bengal Minors Act (40 of 1858), which provided a machinery for the appointment of managers of the estates5 and guardians of the person of minors (not being European British subjects)6 residing in Bengal outside the limits of the original civil jurisdiction of the High. Court.

Similar provision was made for the Madras Presidency by Madras Regulation 5 of 1804, section 20, and 10 of 1831, section 3, and for Bombay Presidency by Act 20 of 1864, which was in terms similar to Act 40 of. 1858.

Act of 1858-Genesis.- The Bengal Minors Act (40 of 1858) was the result of certain practical difficulties which had been revealed by the case law or otherwise in the working of the law. For example, a Hindu guardian, even if he acted honestly, was in difficulty as to how he ought to deal with a minor's property under circumstances of pressure. The family might be very seriously in debt, but it was often doubtful whether the minor was liable for a portion of the debts, or whether the necessity was sufficiently urgent to justify the sale or mortgage of the immovable property of the minor.

Sometimes, the guardian was a purdanashin lady or other member of the family, ignorant of the law, and might be influenced by the members of the family whose interests were adverse to those of the minor. In this state of the law, the estates of the minor were constantly sold or mortgaged without legal necessity-sometimes sold on ruinous terms. Purchasers as well as minors were found the victims of fraud and ignorance, and dealing with the property of minors had proved a source of litigation.

It was to remedy these evils that one of the provisions section 18 was enacted the intention being not only to protect the interest of the minor, but also to throw upon the civil courts a large share of the duties and responsibilities which had previously been thrown upon the guardians and to which the guardians had, as a rule, been found to be unequal.

Section 3 of the Bengal Minors Act provided that no guardian could institute a suit or defend a suit connected with a minor without a certificate of administration.

Act of 1858, section 4.-Section 4 of Act of 1858 run thus7-

"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."

Act of 1861.- In 1861, there was passed an Act to amend the law relating to minors. The principal provisions are to be found in sections 1 and 2, which are quoted below:8

"1. Any relative or friend of a minor who may desire to prefer any claim in respect of the custody or guardianship of such minor may make an application by petition, either in person or by a duly constituted agent, to the principal Civil Court of original jurisdiction in the district by which such application, if preferred in the form of a regular suit, would be cognizable, and shall set forth the grounds of his application in the petition.

The Court, if satisfied by an examination of the Petitioner or his agent, if he appear by agent, that there is ground for proceeding, shall give notice of the application to the person named in the petition as having the custody or being in the possession of the person of such minor, as well as to any other person to whom the Court may think it proper that such notice should be given, and shall fix as early a day as may be convenient for the hearing of the petition and the determination of the right to the custody of guardianship of such minor.

2. The Court may direct that the person having the custody or being in possession of the person of such minor shall produce him or her in Court or in any other place appointed by the Court on the day fixed for the hearing of the petition or at any other time, and may make such order for the temporary custody and protection of such minor as may appear proper."

The rest of the Act of 1861 (from section 3 onwards) was mainly concerned with matters of a procedural nature. Section 3 required the Court, after hearing the statements of the parties, to make an order regarding custody or guardianship. Section 4 required the Court to be guided by Act 8 of 1859 (Act for simplifying the procedure of Courts of Civil jurisdiction not established by Royal Charter) as far as applicable.

Section 5 provided for an appeal to the sudder court from an order of the lower court under the Act, and section 6 provided that "any order passed under this Act in respect to the custody of guardianship of a minor shall not be liable to be contested in a regular suit". Section 7 saved certain laws, as also the jurisdiction of the Supreme Court and Court of Wards. Section 8 defined the term "Sudder Court"

Act of 1864.- The Bombay Minors Act of 1864 was passed in these circumstances:9

"It was deemed expedient by the Bombay Government, on certain representations from the Judges of the late Sudder Adawlut, to make provision for the better protection of the property of minors. The judges suggested that an enactment was required analogous to Act XL of 1858. Such an enactment was accordingly framed with such alterations as the different circumstances of the Bombay Presidency demanded, and was passed by the Court of the Governor of Bombay.

The Act provided that proceedings of the Zillah Judges with reference to minors should be open to appeal to the High Court of Judicature in Bombay. But it is stated in the Letters Patent of the High Court that the appellate jurisdiction of that Court is confined to cases already subject to appeal to the Sudder Adawlut, and to cases which shall become subject to appeal to the High Court by virtue of such laws and regulations relating to civil procedure as shall hereafter be made by the Governor General in Council.

It was thus clear that, consistently with this provision in the Letters Patent, the Government of Bombay in its legislative capacity was not competent to give an appeal to the High Court in a new class of cases. Assent to the Bill was accordingly withheld by the Governor General, and the Government of Bombay has requested that an Act to secure the attainment of the objects in view may be passed by this Council. The proposed Act is founded on Act XL of 1858 with certain necessary alterations as to the agency by which the law is to be administered."

Acts of 1858 and 1864-Scope of.- Neither Act 40 of 1959 ("Bengal Minors Act) nor Act 20 of 1864 (Bombay Minors Act) was intended to alter or affect any provisions of Hindu or Mohammedan law, as to guardians who did not avail themselves of those Acts. The scope of these enactments was merely to confer expressly a certain jurisdiction and to define exactly the position of those who availed themselves of, or were brought under, those Acts, leaving persons to whom any existing rules applied, unaffected.

The Legislature did not mean to sweep away all ancient law on the subject or to subject to one inflexible rule the property of all minors. For example, a Hindu widow (as mother and natural guardian of her minor son), could dispose of property belonging to the minor, even though she had not obtained a "certificate" of administration under those Acts.10

Legal Proceedings by minors.- As regards legal proceedings taken on behalf of minors, in Bengal, no guardian could institute or defend a suit connected with the estate of a minor, unless he had obtained a certificate of administration.11 In this respect the law has undergone a change in the Guardians and Wards Act, 1890. Under the Act of 1858 (Bengal Minors Act), a "certificate" was essential, but under the Act of 1890, it is not required.

As was observed in the Statement of Objects and Reasons appended to the Bill12 which led to the Act of 1890-

"One effect of the assimilation of the law will be to do away with the rule, which obtains in the Presidencies of Bengal and Bombay, that no person shall be entitled to institute or defend any suit connected with a minor's estate of which he claims the charge until he has obtained a certificate of administration."

Legislation in force in Madras.- So much as regards the Presidencies of Bengal and Bombay. In Madras, besides Regulation 5 of 1904, the following Regulations and Acts contained a part of the law on this subject, viz.13-

Regulation 3 of 1802.

Regulation 10 of 1831.

Act 19 of 1841.

Act 21 of 1855.

Act 14 of 1858 (Madras Minors Act).

Act 9 of 1861 (An Act to amend the law relating to minors).

Act of 1874.- It remains now to notice the European British Minors Act, 1874 passed to provide in the Punjab and elsewhere for the guardianship of European British subjects.

Section 2 dealt with definitions. Appointment of a guardian by the parent was provided for in section 3. Incidentally, section 3 of the Act of 1874 is the genesis of section 5 of the Act of 1890 (The section is now repealed).

Under section 4, if the Court within whose jurisdiction the minor resided found that a guardian of his person or property had not been provided for under section 3, the Court could appoint a guardian of his person or property or both.

Sections 5 to 9 of the Act of 1874 dealt with procedural matters. Section 10 contained elaborate rules for awarding custody. The guardian's duties, rights and liabilities were dealt with in sections 10 to 25. An interesting provision was that contained in section 12, to the effect that a ward is presumed to be of his father's religion and the guardian, in the absence of a direction of the Court to the contrary, must train the ward in such religion.

However, if the ward is old enough to form an intelligent preference for any religion, the Court in giving such direction "shall attend to such preference". Another interesting provision was that contained in section 21, which provided that on the death of one or two or more joint guardians, whether appointed by a parent (section 3) or by the Court (section 4), the power continued to the survivor or survivors until a further appointment is made by the Court.

It would also be interesting to note that amongst the causes for removal of guardian was one mentioned in section 22(g) of the Act of 1874, under which the Court could remove a guardian on the arrival within the local limits of the Court "of some person whose guardianship the Court may think likely to be more beneficial to the minor than the guardianship of the person so removed".

1. Ram Chander v. Brojonath, 1877 ILR 4 Cal 929 (939).

2. Sham Kuar v. Mhanunnda, 1892 ILR 19 Cal 301 (308).

3. Bengal Regulation 10 of 1793.

4. Trevelyan The Law relatint to Minors, (1912), p. 75.

5. Bengal Minors Act (40 of 1858), section 1.

6. See Callychurn Mullick v Bhuggobuttychurn Mullick, (1872) 10 BLR 231.

7. Bengal Minors Act, 1858, section 4.

8. Act 9 of 1861 (an Act to amend the law relating to minors).

9. National Archives, File relating to Act 8 of 1890, notes portion, pp. 2,3.

10. (a) Ram Chander v. Brojonath, 1877 ILR 4 Cal 929 (939);

(b) Honapa v. Mhalpi, 1891 ILR 15 Born 259 (261);

(c) Murari v. Tayana, 1896 ILR 20 Born 286 (289).

11. See section 3 of Bengal Minors Act (40 of 1858).

12. Statement of Objects and Reasons to the Bill of 1886.

13. National Archives, File relating to Act 8 of 1890, p. 37 (correspondence).

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

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