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Bombay High Court
Guracharya vs Svamiraya Charya on 9 July, 1879
Equivalent citations: ILR 1879 NULL 291
Author: M Melvill
Bench: M Melvill, Kemball


JUDGMENT

M. Melvill, J.

1. This case must be remanded for reconsideration by the District Court.

2. If, as there appears reason to believe to be the case, the whole of the property, of which administration is sought, was the undivided property of Guracharya and his deceased son, Anacharya, an administrator cannot legally be appointed to have charge of the undivided shares of Anacharya’s sons in the family property : Govind Ramchandra v. Moro Ragunath and Shivji Hasan v. Dattu Mavji. Nor, under the same circumstances, can a, guardian be appointed under Act XX of 1864. The administration and the guardianship will, under such circumstances, remain with Guracharya, as the undivided paternal grandfather of the minors, but no certificate can be granted in respect thereof.

3. But it may be that there is some separate property acquired by Anacharya. Guracharya in his deposition says : “I also hear that the late Anacharya had acquired some land at Kelgheri. I do not hold possession of the said land.” If this be the case, it would be both legal and desirable to appoint an administrator of this separate property, and the appointment of a guardian might properly be made at the same time.

4. The District Judge should inquire whether there is any separate property of the deceased Anacharya. If there is not, he should refuse to make any order in the case. If there is such property, he should grant a certificate of administration and guardianship, but should limit the certificate of administration to the separate property acquired by the deceased Anacharya. This Court would recommend that the certificate, if granted, be granted jointly to the Nazir and Guracharya, as recommended by the Subordinate Judge. It would be difficult for the Nazir to perform by himself the duties of guardian to the children, two of whom are living with Guracharya, and the eldest of whom appears content to remain under his charge.


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