Judgement

Appeal from a judgment and decree of the High Court (October 29, 1913) affirming a judgment and decree of that Court in its original civil jurisdiction (April 22, 1913).

The respondent G. Narayaniah, having by agreement given the custody and bringing up of his two minor sons to the appellant, revoked the agreement, and in October, 1912, instituted a suit against her in the District Court of Chingleput by a plaint claiming (1.) a declaration that he was entitled to their guardianship and custody; (2.) a declaration that the appellant was not entitled, and in any case was unfit, to have the charge and guardianship of them ; (3.) a direction to the appellant to hand them over to him, or to such other person as to the Court should seem fit. The circumstances under which the suit was instituted, so far as they are material to the decision, appear fully from the judgment of their Lordships.

At the date of the commencement of the suit the minors were resident in England, and with the exception of a period between September, 1911, and February, 1912, they had not resided within the jurisdiction of the District Court of Chingleput since September, 1910.

The suit was transferred from the District Court into the High Court by an order made under clause 13 of the Letters Patent, 1865, and was heard by Bakewell J.

The learned judge delivered judgment on April 22, 1913, in favour of the first respondent (plaintiff). He was of opinion that any delegation of guardianship by a father was revocable, and an agreement to the contrary void ; he therefore held that the first respondent was entitled to revoke the authority given to the appellant, and he further held that the first respondent was not unfit to be guardian of his children.

A decree was accordingly made which, after declaring that the minors were made wards of the Court, appointed the first respondent the guardian of their persons and ordered that the appellant should on or before May 26, 1913, hand over the custody of the boys to him as their guardian.

The elder of the two boys attained eighteen years of age a few days after this decree was made.

The present appellant appealed and obtained a stay of execution with regard to handing over the boys until after the hearing.

The High Court in its appellate jurisdiction first heard arguments upon the question whether Bakewell J, had jurisdiction to make the decree, and on this question delivered a preliminary judgment.

The learned Chief Justice, after stating that, under the Indian Majority Act, 1875, s. 3, and the Guardians and Wards Act, 1890, s. 52, the effect of the decree was to extend the minorities of the boys until they attained twenty-one, held that the Guardians and Wards Act, 1890, did not take away any common law or equitable jurisdiction in relation to minors and guardians which was vested in a District Court at the time when the Act came into force, and that, notwithstanding clause 20 of the Letters Patent of 1865, the jurisdiction of the High Court in the suit was the same as if the suit had been instituted in that Court. He was consequently of opinion that the jurisdiction of the High Court was not restricted to that which might have been exercised by the District Court if the suit had not been transferred under clause 13 of the Letters Patent of 1865. The learned Chief Justice further held that the words " within the Presidency of Madras" in clause 17 of the Letters Patent of 1865 merely limited the territorial jurisdiction and did not qualify or restrict the powers of the High Court with regard to the guardianship of minors. In his view the jurisdiction which the High Court at Madras possessed in connection with the estates and persons of minors was the jurisdiction which in England could be exercised by the Lord Chancellor, acting for the Sovereign as parens patriae, when the Supreme Court in Madras was instituted; and that if the domicil and residence of the father within the jurisdiction of the Court of Chancer