C.B. CHANDRASEKHAR Vs. STATE

JUDGEMENT

(1.) THIS Original Petition is for appointing the petitioner as guardian of his minor daughter in order to enable him to file, on her behalf, petition for Letters of Administration with the Will dated 22 -7 -1981, annexed, which was executed by the said minor's grandfather. It is said that under the said Will, the said minor is the legatee, entitled to half share in the immovable properties set out in the schedule to the petition.

(2.) THE petitioner being the father of the said minor, is the natural guardian under Hindu Law. So, I put a question to the learned counsel for the petitioner, asking him whether the petitioner could not, as the natural guardian, file an Original Petition straightway, praying for the above referred to Letters of Administration, without this additional Original Petition for appointing him as a guardian of the said minor. I also pointed out to him that under the Guardian and Wards Act, a person who was natural and lawful guardian, was automatically entitled to exercise the right of a guardian, without any order of Court appointing him and that he need not be formally appointed Vide Mt. Ulfat Bibi v. Bafati, 1927 All. 581 Rasulan v. : AIR1971All248 and Mistafa v. : (1970)2MLJ354 . But, he replied that since the Office of this Court insisted that before a petition for Letters of Administration with the Will annexed is filed, he should get himself first appointed by the Court as guardian and then only file a petition for Letters of Administration on behalf of the said minor. I do not think that this view is correct. In Sarajubala v. : AIR1973Cal45 it has been held that where no executor is appointed under the Will, a petition filed by minor legatee through his natural guardian for grant of Letters of Administration was maintainable in law and that Section 236 of the Indian Succession Act was not a bar to the filing of such a petition. This decision was rendered by a single Judge of the Calcutta High Court on a reference made to him for decision when two Honourable Judges of the said Court had differed on this point of law. Section 236 of the Indian Succession Act says that Letters of Administration cannot be granted to any person, who is a minor. The learned Judge of the Calcutta High Court, who rendered the above said decision took into consideration the following principles set out by him in paragraph 18 of the judgment : - -

(3.) NO doubt, it has been held by this Court in Viramma v. Se -shamma, AIR 1931 Mad. 343 (D.B.) that, in the case of Section 244 of the Indian Succession Act (which provides that when a minor is sole executor or sole residuary legatee, Letter of Administration with the Will annexed may be granted to the 'legal guardian' of the said minor), before such Letters of Administration can be granted to a 'legal guardian' of a minor, the legal guardian must apply to be appointed the minor's guardian to enable him to obtain Letters of Administration for the benefit of the minor. It has also been held in Bhagawathi v. Bahuria, AIR 1920 Pat. 182 that the expression 'legal guardian' means a guardian appointed under the Guardian and Wards Act. But, the present case is not a case of a minor, who is sole executor or sole residuary legatee. Therefore, I think that the above decision reported in Viramma v. Seshamma (supra) will not apply to the facts of the present case. I, therefore, hold that the present petition in unnecessary and the petitioner can straightaway file an Original Petition for grant of Letters of Administration with Will annexed on behalf of his minor daughter. Hence this petition is dismissed.