[Act 40 of 1858] [11th December, 1858] Repealed by Act 8 of 1890 Passed by the Legislative Council of India. (Received the assent of the Governor General
on the 11th of December 1858.) An Act for making better provision for the care of
the persons and property of Minors in the Presidency of Fort William in Bengal. Whereas is
expedient to make better provision for the care of the persons and property of
Minors not brought under the superintendence of the Court of Wards; It is
enacted as follows:- Regulation
I. 1800, Clause 8 and the six following Clauses of Section XXIX Regulation
VIII. 1505, Section V Regulation XVII. 1805, and so much of Section II and III
Regulation V. 1799, and of Clauses 2 and 3 Section XVI Regulation III. 1803, as
restrict the interference of the Civil Courts in cases of inheritance by
Minors, are repealed. Section - 2.
Persons and property of Minors not under the protection of the Court of Wards
shall be subject to jurisdiction of Civil Court.- Except
in the case of proprietors of estates paying Revenue to Government who have
been or shall be taken under the protection of the Court of Wards, the care of
the persons of all Minors (not being European British subjects) and the charge
of their property shall be subject to the jurisdiction of the Civil Court. Every
person who shall claim a right to have charge of property in trust for a Minor
under a Will or Deed, or by reason of nearness of kin, or otherwise, may apply
to the Civil Court for a Certificate of administration; No
person to institute or defend a suit without such Certificate.- and no person shall be entitled to
institute or defend any suit connected with the estate of which he claims the
charge until he shall have obtained such Certificate. Proviso.- Provided that, when the property is of
small value, or for any other sufficient reason, any Court having jurisdiction
may allow any relative of a Minor to institute or defend a suit on his behalf,
although a Certificate of administration has not been granted to such relative. Any
relative or friend of a Minor in respect of whose property such Certificate has
not been granted, or, if the property consist in whole or in part of land or
any interest in land, the Collector of the District may apply to the Civil
Court to appoint a fit person to take charge of the property and person of such
Minor. If the
property be situate in more than one District, any such application as
aforesaid shall be made to the Civil Court of the District in which the Minor
has his residence. When
application shall have been made to the Civil Court either by a person claiming
a right to have charge of the property of a Minor, or by any relative or friend
of a Minor, or by the Collector, the Court shall enquire summarily into the
circumstances and pass orders in the case. Proviso.- Provided always that it shall be competent
to the Civil Court to direct any Court subordinate to it to make such enquiry
and report the result. If it
shall appear that any person claiming a right to have charge of the property of
a Minor is entitled to such right by ??? of a Will or Deed, and is willing to
undertake the trust, the Court shall grant a Certificate of administration to
such person. If there is no person so entitled, or if such person is unwilling
to undertake the trust, and there is any near relative of the Minor who is
willing and fit to be ??? with the charge of his property, the Court may grant
a Certificate to such relative. Court
may appoint person having such Certificate, Guardian of the Minor's person.- The Court may also if it think fit (unless
a Guardian have been appointed by the father), appoint such person as aforesaid
or such relative or any other relative or friend of the Minor, to be Guardian
of the person of the Minor. The
Court may call upon the Collector or Magistrate for a report on the character
and qualification of any relative or friend of the Minor who may be desirous or
willing to be entrusted with the charge of his property or person. If no
title to a Certificate be established to the satisfaction of the Court by a
person claiming under a Will or Deed, and if there be no near relative willing
and fit to be entrusted with the charge of the property of the property of the
Minor, and the Court shall think it to be necessary for the interest of the
Minor that provision should be made by the Court for the charge of his property
and person, the Court may proceed to make such provision in the manner
hereinafter provided. If the
estate of he Minor consist of moveable property or of houses, gardens, or the
like, the Court may grant a Certificate to the Public Curator appointed under
Section XIX Act XIX of 1841 (for the protection of moveable and immoveable
property against wrongful possession in certain cases), or, it there be no
Public Curator, to any fit person whom the Court may appoint for the purpose. Whenever
the Court shall grant a Certificate of administration to the estate of a Minor
to the Public Curator or other person as aforesaid, it shall at the same time
appoint a Guardian to take charge of the person and maintenance of the Minor.
The person to whom a Certificate of administration has been granted, unless he
be the public Curator, may be appointed Guardian. Guardian's
allowance.- If the person appointed
to be Guardian be unwilling to discharge the trust gratuitously, the Court may
assign him such allowance, to be paid out of the estate of the Minor, as under
the circumstances of the case it may think suitable. Minor's
allowance.- The Court may also fix
such allowance as it may think proper for the maintenance of the Guardian (if
any) shall be paid to the Guardian by the Public Curator other person as
aforesaid. If the
estate of the Minor consist, in whole or in part, of land or any interest in
land, the Court may direct the Collector to make charge of the estate, and
thereupon the Collector shall appoint a Manager of the property of the Minor
and a Guardian of his person, in the same manner and subject to the same rules
in respect of such appointment and of the duties to be performed by the Manager
and the Guardian respectively, so far as the same may be applicable, as if the
property and person of the Minor were subject to the jurisdiction of the Court
of Wards. In all
enquiries held by the Civil Court under this Act, the Court may make such order
as to the payment of costs by the person on whose application the enquiry was
made, or out of the estate of the Minor or otherwise as it may think proper. Whenever
one or more of the proprietors of an estate, which has come under the
jurisdiction of the Court of Wards on account of the disqualification of all
the proprietors, cease to be subject to the jurisdiction of the Court of Wards,
notwithstanding the continued ??? of one or more of the co-proprietors, the
Collector of the District in which the estate is situate may represent the fact
to the Civil Court; and the Court, unless it see sufficient reason to the
contrary, shall direct to the Collector to retain charge of the person, and of
the shares of the property of the still disqualified proprietors, during the
continuance of their disqualification, or until such time as it shall be
otherwise ordered by the Court. The Collector shall in such case appoint a
Guardian for the care of the persons, and a Manager for the charge of the
property of the disqualified proprietors, in the manager prescribed in Section
XII. Provision
for case of estates situated in more than one District.- If the property be situate in more than
one District, the representation shall by the Collector who had the general
management of the property under the Court of Wards, to the Civil Court of his
own District, and the orders of the Court of that District shall have effect
also in other Districts in which portions of the property may be situate. The
proceedings of the Collector in the charge of estates under this Act shall be
subject to the control of the superior Revenue Authorities. The
Public Curator and every other Administrator to whom a Certificate shall have
been granted under Section X shall, within six months from the date of the
Certificate, deliver on Court an inventory of any immoveable property belonging
to the Minor, and of all such sums of money, goods, effects, and things as he
shall have received on account of the estate, together with a statement of all
debts due by or to the same. And the Public Curator and every such other
Administrator shall furnish annually, within three months from the close of the
year of the era current in the District, an account of the property in his
charge, exhibiting the amounts received and disbursed on account of the estate,
and the balance in hand. Proceeding
if accuracy of inventory or account be impugned.- If any relative or friend of a Minor or
any Public Officer, by petition to the Court, shall impugn the accuracy of the
said inventory and statement or of any annual account, the Court may summon the
Curator or Administrator and enquire summarily into the matter, and make such
order thereon as it shall think proper, or the Court at its discretion may
refer such petition to any subordinate Court. All
sums received by the Public Curator or such other Administrator on account of
any estate, in excess of what may be required for the current expenses of the
Minor or of the estate, shall be paid into the public Treasury on account of
the estate, and may be invested from time to time in the public Securities. Every
person to whom a certificate shall have been granted under the provision of
this Act, may exercise the same powers in the management of the estate as might
have been exercised by the proprietor if not a Minor, and may collect and pay
all just claims, debts, and liabilities due to or by the estate of the Minor.
But no such person shall have power to sell or mortgage any immoveable
property, or to grant a lease thereof for any period exceeding five years,
without an order of the Civil Court previously obtained. It
shall be lawful for any relative or friend of a Minor, at any time during the
continuance of the minority, to sue for an account from any Manager appointed
under this Act, or from any person to whom a Certificate shall have been granted
under the provisions of this Act, or from any such Manager or person after his
removal from office or trust, or from his personal representative in case of
his death, in respect of any estate then or formerly under his care or
management, or of any sums of money or other property received by him on
account of such estate. If the
disqualification of a person, for whose benefit a suit shall have been
instituted under this Act, cease before the final decision thereof, it shall be
lawful for such person to continue the prosecution of the suit on his own
behalf. The
Civil Court for any sufficient cause may recall any Certificate granted under
this Act, and may direct the Collector to take charge of the estate, or may
grant a Certificate to the Public Curator or any other person as the case may
be; and may compel the person whose Certificate has been recalled to make over
the property in his hands to his successor, and to account to such successor
for all monies received and disbursed by him. Removal
of Guardian.- The
Court may also for any sufficient cause remove any Guardian appointed by the
Court. The
Civil Court may impose a fine not exceeding five hundred Rupees on any person
who may wilfully neglect or refuse to deliver his accounts, or any property in
his hands within the prescribed time, or a time fixed by the Courts; and may
realize such fine by attachment and sale of his property under the rules in
force for the execution of decrees of Court; and may also commit the recusant
to close custody until he shall consent to deliver such accounts or property. The
Civil Court may permit any person to whom a Certificate shall have been granted
under this Act not being the Public Curator, and any Guardian appointed by the
Court, to resign his trust; and may give him a discharge therefrom on his
accounting to his ??? appointed for all monies received and disbursed by him,
and making over the property in his hands. The
Public Curator and every other Administrator to whom a Certificate shall have
been granted under Section X. shall be entitled to receive such commission not
exceeding five per centum on the sums received and disbursed by him, or such
other allowance to be paid out of the Minor's estate as the Civil Court shall
think fit. Every
Guardian appointed by the Civil Court, or by the Collector under this Act, who
shall have charge of any male Minor, shall be bound to provide for his
education in a suitable manner. The general superintendence and control of the
education of all such Minors shall be vested in the Civil Court or in the
Collector, as the case may be; Act
XXVI of 1854, declared applicable.- and
the provision of Act XXVI of 1854 (for making better provision for
the education of male Minors subject to the superintendence of the Court of
Wards) shall so far as is consistent with the provision herein contained,
be applicable to the Civil Court, or to the Collector, as the case may be, in
respect to such Minors, and to every such Guardian. For
the purpose of this Act, every person shall be held to be Minor, who has not
attained the age of eighteen years. Nothing
in this Act shall authorize the appointment of a Guardian of the person of a
whose husband is not a Minor, or the appointment of a Guardian of the person of
any Minor whose father is living and is not a Minor; and nothing in this Act
shall authorize the appointment of any person other than a female as the
Guardian of the person of a female. Guardianship
during the ??? of the father or husband of a Minor when to cease.- If a Guardian of the person of a Minor be
appointed during the minority of the father or husband of the Minor, the
Guardianship shall cease as soon as the father or husband (as the case may be)
shall attain the age of majority. All
orders passed by the Civil Court or by any Subordinate Court under this Act,
shall be open to appeal under the rules in force for appeals, in miscellaneous
cases, from the orders of such Court and this Subordinate Courts. The
expression ?Civil Court? as used in this Act shall be held to mean the
principal Court of original jurisdiction in the District, and shall not include
the Supreme Court; and nothing contained in this Act shall be held to affect
the powers of the Supreme-Court over the person or property of any Minor
subject to its jurisdiction. Number.- Unless the contrary appears from the
context, words importing the singular number shall include the plural number,
and words importing the plural number shall include the singular number; Gender.- and words importing the masculine gender
shall include females.Minors Act, 1858 [Repealed]
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