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Report No. 83

6.20. Bombay view.-

In the Bombay case1 on the subject, on the other hand, the matter was thus dealt with-

"In all matters connected with the welfare of minors the predominant motive of the Court is to pursue a course of action which will be for the minor's benefit, and the consideration of the appointment of the guardian of a minor's property is no exception to this rule. There are three alternatives as to security in relation to such appointments: (1) To make the appointment without requiring the giving of any security; (2) To require the prospective guardian to enter upon security before coming to "the Court for his appointment; (3) To make a condition that upon security being given the appointment shall operate.

I cannot think that the first course is for the benefit of the minor, and it would be wholly contrary to the practice of this country and to rule 5 of the Civil Manual mentioned above. The second course is hedged around with difficulties, in that security would either have to be given conditionally upon the Court making the appointment, alternatively it would have to be actually given, with the consequential unnecessary expense of its vacation, should the Court for some reason decide against making a particular appointment.

The third course is the most practical and convenient one, namely, to make the appointment upon security being given. If security be given, a question may arise in some future case as to whether the appointment relates back to the date when the original order was made, but that does not arise here, nor do we decide it.

There being nothing wrong or invalid in my judgment in this form of order, the effect of it is, in my opinion not open to serious doubt; the Receiver has no right to take possession of the minor's movable property until security has been furnished; were it otherwise, the whole object of the Court giving directions for security might lie defeated.

It follows, in my judgment, that if security be never given, the order never becomes operative, so far as the appointment of the prospective guardian is concerned. In my opinion, such an order cannot be 'cancelled' by the Judge who made it. If it is desired to get rid of an order if security be not given, the order can take the form of requiring security to be given on or before a specified date, so that if the time runs out the order automatically lapses.

That prevents the difficulty envisaged by the learned Chief Justice Sir Murray Coutts Trotter in 49 Mad 809 and would be in accordance with rule 7 of the Civil Manual which appears to be honoured at present only in its breach."

1. Jay Singh v. Pratap Singh, AIR 1945 Bom 243 (246, 247).

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

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