[This Second Appeal first came on for hearing on the 3rd day of February 1919, before their Lordships Bakewell and Phillips, JJ.]

The only question for determination is whether a suit by a father to recover possession of his minor child is maintainable in a Civil Court, or whether the sole remedy is by proceedings under the Guardians and Wards Act (VIII of 1890). In the latter case the procedure would be by application to the District Court under Sect. 25 of the Act, and it has been held in Dayabhai Raghunathdas v. Bai Parvati (I.L.R., 39 Bom., 438) [LQ/BomHC/1915/23] , that this section is applicable to all guardians, and not only to guardians appointed by Court but the Provincial Small Cause Courts Act distinctly recognizes a right of suit, for suits for the custody of a minor are not cognizable by a Court of Small Causes (Art. 37). It has been held that such a suit is maintainable, both in this Court ( Krishna v. Reade (I.L.R., 9 Mad., 31), and in Bombay ( Sharifa v. Munekhan (I.L.R., 25 Bom., 674)), but a contrary view has been taken in Allahabad ( Sham Lal v. Bindo (I.L.R., 26 All., 594)), It is now argued that the decision of the Privy Council in Besant v. Narayaniah (I.L.R., 38 Mad., 807; s.c., 1 L.W., 620 (P.C.)) has overruled the Madras and Bombay decisions, but this proposition has been distinctly negatived in Achratlal Jekisandas v. Chimanlal Parbhudas (I.L.R., 40 Bom., 600) [LQ/BomHC/1916/50] . The argument is based on the statement of the Privy Council in Besant v. Narayaniah (I.L.R., 38 Mad., 807; s.c., 1 L.W., 620 (P.C.)) that the District Court in which the suit was instituted had no jurisdiction over the infants except such jurisdiction as was conferred by the Guardians and Wards Act, 1890. This previous passage, which we quote below, also supports the contention.

The real question was whether he was still entitled to exercise the functions of guardian and resume the custody of his sons and alter the scheme which had been formulated for their education. Again, it was not and could not be disputed that the letter of 6th March 1910 was in the nature of a revocable authority. The real question was whether in the events which had happened the plaintiff was at liberty to revoke it. Both questions fell to be determined having regard to the interests and welfare of the infants bearing in mind, of course, their parentage and religion, and could only be decided by a Court exercising the jurisdiction of the Crown over infants, and in their presence. From this i t would appear that in the opinion of their Lordships, the District Court had only jurisdiction under Act VIII of 1890 so far as the case under reference was concerned but they do not appear to have specifically decided the question of whether any suit like the present one is maintainable in a Civil Court.

We may point out that the decision in Krishna v. Reade (I.L.R., 9 Mad., 31) was under Act IX of 1861, which was held to be an enabling Act only, and that Act VIII of 1890 is a consolidating and amending Act although in other respects the provisions appear to be the same; also that the actual decision in Achratlal Jekisandas v. Chimanlal Parbhudas (I.L.R., 40 Bom., 600) [LQ/BomHC/1916/50] was based on the fact that the father never had custody of the child, but it has been held by this Court in Ibrahim Nachi v. Ibrahim Sahib (I.L.R., 39 Mad., 608) [LQ/MadHC/1915/590] that this fact does not prevent the application of Sect. 25 of the Act of 1890. Sect. 25 does not expressly state whether the procedure thereunder should be by plaint or petition, when no application has been made for the appointment or declaration of a guardian by the Court.

In view of the apparent conflict between the decision in Krishna v. Reade (1 B.L.R., Ap., 36) and the recent dictum of the Privy Council, we think it advisable to refer to a Full Bench the question whether a Mutassal Court other than a District Court has jurisdiction to entertain a suit by a father for the custody of his child.

[1] British Courts in India appear from the outset to have considered the right of the father or other persons entitled to the custody of a minor to be a civil right and enforceable as such by suit in a Civil Court. That this was a well-known kind of suit appears from the Guardians and Wards Act IX of 1.861, which recited that it was expedient to amend the law for hearing suits relative to the custody and guardianship of minors, and provided that applications might be made by petition to the principal Civil Court of original jurisdiction in the District by which such application if preferred in the form of a regular suit would be cognizable.

[2] It was first held in Calcutta that the right of Civil Suit was taken away by this Act, Mussamat Harasundari Baistabi v. Mussamat Jayadurga Baista Bi (1870) 4 Ben. L.E Appendix 36 No reasons were given for the decision and the case was not followed in Brohmomoyee v. Kashi Chundersen (1881) I.L.R. 8 C. 266. In Krishna v. Reade (1886) I.L.R. 9 M. 31 this Court also held that : the right of suit was not taken away by the Act. of 1861, and this view is supported to some extent by the Provincial Small Cause Courts Act, 1887, which included in the schedule of suits excluded from the jurisdiction of the Small Cause Court-" Article

37. A suit for the restitution of conjugal rights, for the recovery of a wife, for the custody of a minor or for a divorce." Act IX of 1861 and a large number of enactments relating to the guardianship of minor s property were repealed and re-enacted with modifications by the Guardians and Wards Act, 1890. It did not purport to be a codifying but a consolidating Act, which is a very different thing, and did not, as far as I can see, make any very material alterations in the provisions of Act IX of 1861 as to the guardianship of the person. It Was held however in Sham Lal v. Bindo (1804) I.L.R. 26 A. 594 to have been a codifying Act and to have taken away the right of proceeding by regular suit in Civil Courts to recover the custody of minors. A different view was taken in Sharifa v. Munekhan (1901) I.L.R. 25 B. 574 where however the point was not considered to be free from doubt. Then came the decision of the Privy Council in Besant v. Narayaniah (1914) L.R. 41 I.A. 314 : 27 M.L.J. 80. The plaintiff in that case had filed a suit in the District Court of Chingleput against the defendant, Mrs. Besant, who resided within that jurisdiction, for declarations that he was entitled to the guardianship and custody of his two minor sons, and that the defendant was not entitled and was in any case unfit to have the charge and guardianship of the minors, and for a direction to the defendant to hand them over to him or to such person as the Court might think fit. The minors, one of whom was nearly eighteen, were residing and being educated in England at the date of the suit.

[3] The Privy Council held that the suit, which was a suit to recover the custody of the infants, did not lie in the District Court, and observed: "The District Court in which the suit was instituted had no jurisdiction over the infants except such jurisdiction as was conferred by the Guardians and Wards Act, 1890". The question for decision was whether a civil suit not under the Guardians and Wards Act would lie in the Civil Court. The Privy Council held that it would not, and assigned as the sole but sufficient reason for so holding the fact that the District Court had no jurisdiction in the case except under the Guardians and Wards Act. This I feel bound to construe as a ruling that the jurisdiction conferred by the Guardians and Wards Act was exclusive, and that the right of proceeding independently by civil suit no longer existed. The suit having been held incompetent, their Lordships proceeded to consider whether the proceedings could be supported if treated as proceedings under the Guardians and Wards Act, and held they could not because the minors were not resident in the District where the proceedings were instituted. If the jurisdiction of the District Court to entertain suits of this character not governed by the Guardians and Wards Act had been recognised as still existing to any extent, it would have been necessary to assign reasons for holding that it was inapplicable in the circumstances of the case. The judgment did not do so, but dismissed the suit simply on the ground that the Court had now no jurisdiction except under the Act. If this is the position of the District Court, the position of the District Munsif s Court must be the same. In Achratlal Jekisandas v. Chimanlal Parbhudas (1916) I.L.R. 40 B. 600 it was no doubt held that the judgment of the Privy Council has not this effect, but no reasons were given for that decision, and I have been unable to find any which are satisfactory to my mind. I would answer the question in the negative.

Ayling, J.

[4] I agree. The judgment of the Privy Council in Besant v. Narayaniah (1914) I.L.R. 38 M. 807 appears to me to be open to no other construction.

Sadasiva Aiyar, J.

[5] I agree and for same reasons.