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Report No. 83

V. State of The Law And Difficulties Felt

Immediate occasion for the Bil.- The legislation mentioned above constituted the background of the Act of 1890. The immediate occasion for undertaking the legislation that culminated in the Act of 1890 was furnished by certain practical difficulties that had been experienced in the working of the Bombay Minors Act, 1864. These difficulties had been brought to the notice of the Government of India by the Bombay High Court through the Local Government. The difficulty was thus described.-

"Any person may assume the charge of a minor's property without any sanction from the civil court. No one need take out a certificate unless for the purpose of enabling him to institute or defend a suit connected with the estate of which he claims the charge. If he does not profess to claim the charge of the property, he may dispense with a certificate even for the purpose of litigation. He may institute a suit as next friend, or defend it as guardian for the suit.

If he takes out a certificate he cannot deal with any immovable property without the sanction of the civil court previously obtained; and every alienation made by him without such sanction is absolutely invalid; while an alienation made with such sanction cannot, except under special circumstances, be impeached. On the other hand, a person who does not take out a certificate is absolutely beyond control, and can deal with the minor's property as he pleases.

It can hardly be said that this state of the law is favourable to the interests of the minor. There is nothing to compel a self-constituted administrator to apply to the Court for a certificate; but on the contrary, there is every inducement to him not to do so. Now I think that, in the case of every considerable estate, and especially when it consists of immovable property, it is desirable that every administrator should be obliged to satisfy the Court of his fitness before he meddles with the property."

[Act XX of 1864, section 2; Oct XX of 1864, section 2; Act X of 1877, Chapter XXXI; Act XX of 1864, section 18; ILR 2 Cal 282; ILR 2 Cal 929]

Need felt in Bengal.- Though the suggestion pertained only to the Bombay Act, it was, on an examination of the subject in the Legislative Department, thought that since the Bengal Minors Act, 1858 was drawn on the same lines as the Bombay Act, the improvements suggested in the Bombay Act would be needed in that Act also. It was further pointed out that the European British Minors Act, 1874 had also created several anomalies. For example, its provisions were confined to "European" British subjects, and were inapplicable to Eurasians.

Position in Madras.- Some problems had arisen in Madras also. The minute of the Chief Justice of Madras2 is of interest in this context-

"Although the Acts XL of 1858 and XX of 1864, which gave rise to the present reference, do not apply to this presidency, and the difficulties arising on construction of these Acts in connection with Chapter XXXI of the Code of Civil Procedure have consequently not been experienced here a review of the law relating to minors obtaining in this presidency will show that it is, as interpreted by the courts, defective in that it leaves certain minors without adequate protection and fails to provide sufficiently for the representation and protection of minors whose property becomes the subject of litigation.

Regulation V of 1804 created for this presidency a Court of Wards. By section 3, it was enacted that, where property charged with direct payment of rents or revenue to Government should devolve by inheritance on persons incapacitated by age, & c., from taking charge of the said property on their own behalf, the Collector should transmit to the Court of Wards a report stating the circumstances, and that the Court of Wards should thereupon state the case with their opinion and judgment to the Governor in Council to the end that the decision end orders of the Governor in Council might be passed thereon."

The following is another interesting comment3 dealing with the position in Madras:-

"I think there can be little doubt that the present is a most favourable opportunity for dealing with the question of the care of the persons and property of minors in India1. The flaws and defects pointed out by the Bombay High Court in Act XX of 1864 exist in a great measure in Act XL of 1858, and probably they are also to be found in Madras Regulation V of 1804. The advantages of effecting a general improvement in all these laws by passing one general consolidated Act applicable to the whole of India are so self-evident as not to need much discussion.

The principle of codification has been adopted by the Government of India, and is being carried out. The present proposal is one step more in the same direction. Thus the passing of one general Act will not only be in accordance with this principle, but it will enable the Legislature to remedy the defects that are now found to exist. The Bengal Act was passed a quarter of a century ago. It was inevitable that defects and omissions should come to the light in this interval. These require to be remedied, and the rulings passed in this time by the High Courts require to be engrafted in the positive enactment.

I am therefore of opinion that a sufficient case has been made out to warrant the matter being taken in hand for the purposes of further legislation. It may be pointed out that there are at present the Majority Act, Act IX of 1861, the Court of Wards Act and others, all relating to the different branches of the same subject. If the law is to be codified, all these Acts might be taken up, and one general Act passed on the subject applicable to the whole Empire, thus forming an additional chapter to the Indian Statutes Book on the Law of Guardian and Ward."

Comprehensive law considered desirable.- In view of this position, it was suggested4 that it may be considered generally whether the best plan would not be to consolidate and amend the law relating to minors for all India. There were defects in Act 40 of 1858, and it might be useful to invite all Local Governments to report what amendments if any, were required in the law prevailing in each province.

Request for all India Bill.- Because of the difficulties felt, the Legislative Department was requested to be good enough to prepare and introduce into the Council of the Governor General for making Laws and Regulations a Bill prepared on the line suggested), applicable to all classes, extending to the whole of British India, embodying such of the provisions of Act 40 to 1858, and Act 13 of 1874, as were suitable and repealing the Acts and Regulations which related to the appointment of guardians by the civil courts.

It would be for the Legislative Department to consider what further detailed provisions may usefully be inserted in the Bill, in order that the proposed measure may be made as complete and comprehensive as possible. A second Bill might be necessary in order to make the amendments required in Chapter 31 of the Code of Civil Procedure then in force.5

On the whole, therefore, it was considered proper to propose a comprehensive and self-contained law that would apply to the whole of British India.

Bill and comments thereon.- A draft Bill prepared by the Legislative Department was, under the authority of a Government Resolution, circulated for comments to local governments, judges, the bar and the public.

It was in this background that the Bill was introduced6 in 1886 in the Council of the Governor General.

1. National Archives, File relating to Act 8 of 1890, p. 6 (Notes).

2. Minute of Chief Justice of Madras, National Archives, File relating to Act 8 of 1890, pp. 37, 38 etc. (correspondence).

3. National Archives. File relating to Act 8 of 1890, p. 124 (correspondence).

4. National Archives, File relating to Act 8 of 1890, pp. 7-8 (notes).

5. National Archives, File relating to Act 8 of 1890, p. 3 (correspondence).

6. Statement of Objects and Reasons, Gazette of India, (Jan-June 1886), p. 76.

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

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