Reply To: Srimati Kamini Mayi Debi vs Bhusan Chandra Ghose (23/02/1926)

Checkout Forums Civil Law Discourse Srimati Kamini Mayi Debi vs Bhusan Chandra Ghose (23/02/1926) Reply To: Srimati Kamini Mayi Debi vs Bhusan Chandra Ghose (23/02/1926)

#117548
advtanmoy
Keymaster

Annie Besant v. Narayaniah I.L.R.

A decision of the Privy Council in Annie Besant v. Narayaniah I.L.R. (1915) 38 Mad. 807 : 27 M.L.J. 30 : 41 I.A. 314 : A.I.R. 1914 P.C. 41, was cited before the Bench in support of the proposition that the father cannot maintain a petition for being declared as a guardian. The observation relied on runs as follows:

And further no order declaring a guardian should by reason of the 19th section of the Guardians and Wards Act, 1890 be made during the respondent’s life unless in the opinion of the Court he was unfit to be their guardian, which was clearly not the case.

The Privy Council was not dealing with the propriety of the order appointing the plaintiff as the guardian. The observation in the circumstances was held by Venkatasubba Rao, J. as obiter and in the absence of any indication in the judgment that their Lordships of the Privy Council gave a considered opinion on the question, the learned Judge was not prepared to hold that they intended to decide finally the meaning of Section 19. Scrutinising the observation of the Privy Council, we are unable to construe it as laying down that the father cannot maintain a petition for being appointed as a guardian. What it says is that under Section 19 no order declaring a guardian should be made during the respondent’s lifetime (father’s lifetime) unless in the opinion of the Court he was unfit to be the guardian which was clearly not the case. This in our view would only mean that all that the Privy Council did was to paraphrase Section 19 but did not purport to lay down that the father cannot maintain an application. Jackson, J., who was the other learned Judge in Raghavaiva v. Lakshmiah 48 M.L.J. 179 : 86 I.C. 640 : A.I.R. 1925 Mad. 398, expressed a contrary view in the following terms:

Whether the dictum in Besant v. Narayaniah 27 M.L.J. 30 : I.L.R. (1915) 38 Mad. 807 : 41 I.A. 314 : A.I.R. 1914 P.C. 41, is obiter or otherwise I think it expresses the plain meaning of the statute and under Section 19 the Court is not authorised to declare anybody not even the father as guardian of the person of a minor whose father is living and in the opinion of the Court is not unfit. Whether this was the intention of the legislature or whether a contrary intention has been defeated by defective drafting, I am not prepared to say.

Neither the section (section 19) nor the passage referred to in the decision of the Privy Council states that the Court is not authorised to declare anybody as guardian not even the father. The construction that not even the father can be appointed is not warranted either under the section or on the wording of the judgment of the Privy Council. We are in respectful agreement with the view taken by Venkatasubba Rao, J. and are of the opinion that the father could maintain a petition under Section 7 for his being declared as the guardian.