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Ratan and anr. Vs. Bisan Ramchandra Pardeshi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. Nos. 235 and 401 of 1977
Judge
Reported inAIR1978Bom190
ActsGuardians and Wards Act, 1890 - Sections 4, 4(1), 4(2), 41 and 41(3); Hindu Minority and Guardianship Act, 1956 - Sections 2, 4, 5 and 25; Indian Majority Act, 1875
AppellantRatan and anr.
RespondentBisan Ramchandra Pardeshi
Advocates:L.V. Kapse, Adv. for S.J. Deshpande, Adv. and ;A.M. Dabir, Adv.
Excerpt:
.....includes any person who is having the care of the person of a minor or his property or both his person and property - therefore, it was ruled that the court could pass an order against a de facto guardian under the provisions of section 41(3) of the act and an application of section 41(3) of the act against a de facto guardian was maintainable. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent had chosen mumbai as port of delivery vessel carrying rock phosphate was delivered at port of bombay - application filed by respondent earlier before delhi high court for..........a finding that the opponent had acted as a de facto guardian of the property belonging to the minor applicant. he, however, held that the applicant had established his case only with regard to the land, survey no. 102. he rejected the applicant's claim for possession of the house and the moveables. in this view of the matter, the learned judge directed delivery of possession of the land survey no. 102 to the applicant and also passed an order requiring the opponent to render accounts of the land for 3 years next preceding to sept. 17, 1975, that is, the date on which the application was filed in court. aggrieved by this decision, both the applicant and the opponent have filed separate revision applications. during the pendency of the civil revision application no. 235 of 1977 the.....
Judgment:
ORDER

1. These two revision applications arise out of an application filed by Bisan the son of Ramchandra Pardeshi against his uncle Deochand Bisan Pardeshi under Section 41(3) of the Guardians and Wards Act, 1890, for recovery of possession of the moveable and immoveable property on the ground that the latter was put in possession of the property as his guardian and on attaining majority he was entitled to get possession of his property from his uncle Deochand.

2. Revision Application No. 235 of 1977 has been preferred by Deochand and Revision Application No. 401 of 1977 has been preferred by Bisan, who claims possession of the property.

3. The facts in so far as they are material may be stated thus. On the death of the father of the applicant Bisan, his mother Kashibai got remarried in about the year 1952. At the time of the death of his father, his son was only 2 years old, and Kashibai's remarriage took place within a year after the death of his father. In the circumstances, he was brought up and maintained by his paternal aunt Ramiyabai. It is the case of the applicant that his father Ramchandra left behind him agricultural land bearing Survey No. 102 and a house bearing Gram Panchayat No, 608 situated at Ambai and also moveables more particularly described in the application. According to the applicant, he became the absolute owner of his father's property after his death in view of the re-marriage of his mother, and the said properties were in possession of the opponent as the guardian of the property of the applicant who was then a minor. On his attaining majority, the applicant had filed Civil Suit No. 17 of 1971 in the Court of the Civil Judge, Junior Division, Sillod, against Deochand for recovery of the property in dispute. In the plaint, the applicant had contended that in view of the provisions of Section 41 of the Guardians and Wards Act, 1890, he was entitled to get possession of the property and the opponent wag also liable to render account of income and expenditure of the property. The opponent Deochand raised a contention in his written statement that the applicant's suit under Section 41 of the Act in the Court of the Civil Judge, Junior Division, Sillod, was not maintainable. The learned Civil Judge upheld this contention and passed an order returning the plaint to be presented in the District Court. This order was passed on Sept. 5, 1975. Thereafter the applicant filed the present application on Sept. 17, 1975 under Section 41 (3) of the Guardians and Wards Act.

4. The opponent raised various contentions and he denied that he was in possession of the property in his capacity as the guardian. He contended that the moveables and immoveables were of his ownership. He also contended that both the land and the house were allotted to his share in a family partition. A contention was also raised that the application under Section 41 (3) was not maintainable.

5. The learned Jt. Judge, Aurangabad, took the view that the applicant's application u/s 41(3) of the Act was maintainable. On merits, he recorded a finding that the opponent had acted as a de facto guardian of the property belonging to the minor applicant. He, however, held that the applicant had established his case only with regard to the land, Survey No. 102. He rejected the applicant's claim for possession of the house and the moveables. In this view of the matter, the learned Judge directed delivery of possession of the land Survey No. 102 to the applicant and also passed an order requiring the opponent to render accounts of the land for 3 years next preceding to Sept. 17, 1975, that is, the date on which the application was filed in Court. Aggrieved by this decision, both the applicant and the opponent have filed separate revision applications. During the pendency of the Civil Revision Application No. 235 of 1977 the original opponent Deochand died and his heirs have been brought on record. The other revision application which has been filed after his death is against the heirs themselves.

6. Mr. Kapse, the learned counsel appearing for the heirs of the deceased Deochand contended that an application under Section 41 (3) against a de facto guardian is not maintainable. In other words, he contended that such an application could only be filed against a guardian appointed by the Court under the Act or a guardian declared as such under the Act. Admittedly Deochand was neither appointed nor declared a guardian, and, therefore, it was urged by him that recourse to remedy in provisions of Section 41 (3) of the Act by the applicant is wholly misconceived and the District Court had no jurisdiction to entertain such an application. He further advanced an argument that even assuming that under Section 41 (3), an application could in law have been filed against such a person, the position has been changed on the commencement of the Hindu Minority and Guardianship Act, 1956. He submitted that having regard to the provisions of Sections 4(b) and 5(b) of the Hindu Minority and Guardianship Act, the definition of 'guardian' as contained in the Guardians and Wards Act stands modified so far as Hindus are concerned, and the so called de facto guardian cannot be treated as a guardian within the meaning of the definition in Section 4 (2) in the Guardians and Wards Act. Moreover, according to him, such a definition of 'guardian' contained in the Guardians and Wards Act being inconsistent with the provisions of the Hindu Minority and Guardianship Act, stands abrogated in view of Section 5(b) of the Hindu Minority and Guardianship Act. On merits, it was his contention that the opponent had never acted as a guardian of the applicant during his minority, and, in any event, the applicant had failed to establish his case that the land Survey No. 102 belonged to his father.

7. Mr. Dabir, the learned counsel appearing for the applicant Bisan, on the other hand, submitted that the application under Section 41 (3) of the Act was legally maintainable, and there is sufficient evidence on record to warrant a conclusion that the opponent had acted as a de facto guardian of the property. He further submitted that the evidence on record fully justified the conclusion of the learned Judge that the land Survey No. 102 belonged to the applicant's father. While supporting the revision application filed by the applicant, it was urged by Mr. Dabir that there was sufficient evidence on record to show that the house property in question also belonged to the father of the applicant and was in possession of the deceased opponent along with the land as his guardian. According to him the trial Court had ignored material evidence on record which has resulted in a wrong order regarding the house.

8. As per the definition contained in Section 4 (2) of the Guardians and Wards Act, 'guardian' means a person having the care of the person of a minor or of his property, or of both his person and property. Under Section 41 (3) of the said Act, it is provided -

'When for any cause the powers of a guardian cease, the Court may require him or, if he is dead, his representative to deliver as it directs any property in his possession or control belonging to the ward or any accounts in his possession or control relating to any past or present property of the ward.' Section 41 (2) (c) provides that the powers of a guardian of the person cease by the ward ceasing to be a minor. Admittedly, in this case, the applicant had attained majority on the date of his making an application in the District Court, and he had ceased to be a minor within the meaning of the Act. Section 4 (1) defines 'minor' as a person who under the provisions of the Indian Majority Act, 1875, is to be deemed not to have attained his majority. It would, therefore, be clear that on his completing the age of 18 years, the applicant had become major and ceased to be a minor within the meaning of the Act. It was the contention of Mr. Kapse that the provisions of Section 41 (3) would come into operation only where a person has been either appointed as a guardian or declared as such by the Court. He submitted that the entire scheme of the Guardians and Wards Act would indicate that it deals with the guardians who are appointed or declared as such by the court under the Act. It is, undoubtedly, true that the Act makes provisions in the matter of appointment and declaration of guardians. However, it is important to notice that the definition of guardian as contained in section 4 (2) does not restrict the meaning of the word to the person either appointed as guardian or declared as such by the court. Any person having the care of the person of a minor or his property or both his person and property would fall within the definition of 'guardian' under the Act. Section 41 (c) refers to the cessation of the authority of the guardian. Even this provision does not restrict its operation to the appointed or declared guardian. Section 41 (1) lays down the circumstances and the cases in which the powers of a guardian of the person come to an end, while section 41 (2) provides for the case in which powers of a guardian cease. Similarly, section 41 (3) empowers the court to require the guardian, or, if he is dead, his representative to deliver the property to the minor on his cessation of authority as a guardian. None of the sub-sections of section 41 even remotely indicates that the Legislature intended to restrict the operation of the provision to only 'appointed or declared guardians'. In fact, what we have to find out is the meaning of the word 'guardian' which is defined in Section 4 (2). The definition is wide, and what is to be seen is whether the person concerned has the care of the person or the property of the minor. The Counsel was unable to show that the word 'guardian' has been used in a different sense in section 41.

9. A similar question came up for consideration before this High Court in the case of Noshirwan v. Sharoshbanu, AIR 1934 Bom 311. The court observed that, 'under the Act, the word 'guardian' has been defined as meaning a person having the care of the person of a minor or of his property or both. The word is used in a wide sense. It does not necessarily mean a guardian duly appointed or declared by the Court, but includes a natural guardian, or even a de facto guardian. (See also : AIR1915Bom62 .)' In Ram Shankar v. Shyama : AIR1954All690 , also the court took the view that the word 'guardian' in Section 4 (2) has a very wide meaning and includes all persons who have the care of the person or property of the minor. The Court has, therefore, a right to pass an order against a de facto guardian also under the, provisions of Section 41 (3) and the application of Section 41 (3) is not limited to guardians appointed by the Court. A similar view has been taken by the Madras High Court in Sithabai v. Radha Bai AIR 1919 Mad 189. It would, therefore, be clear that, the application under Section 41 (3) against a de facto guardian is maintainable.

10. The contention of Mr. Kapse, however, is that even if Section 41 (3) could be availed of against a de facto guardian, after the commencement of the Hindu Minority and Guardianship Act, 1956, the provisions of Section 41 (3) would be inapplicable to the case of de facto guardian. Section 4(b) of the Hindu Minority and Guardianship Act defines 'guardian' in the following terms;

' 'guardian' means a person having the care of the person of a minor or of his property or of both his person and property, and includes:--

(i) a natural guardian,

(ii) a guardian appointed by the will of the minor's father or mother,

(iii) a guardian appointed or declared by a court, and

(iv) a person empowered to act as such by or under any enactment relating to any court of wards.' Section 5(b) of the Act provides--'Save as otherwise expressly provided to this Act,--

(a) ......

(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.'

The argument, therefore, is that unless a person could fall within the definition of the word 'guardian' as provided in Section 4(b), the provisions of law in any other enactment in so far as they govern the persons acting as guardians but could not fall within the defining Section 4(b) would cease to operate as such from the date of the commencement of the Hindu Minority and Guardianship Act, as such provisions in any other laws would be inconsistent with the provisions of the Act. This argument ignores the provisions of Section 2 of the Hindu Minority and Guardianship Act which clearly provides that the provisions of the Act shall be in addition to, and not, save as hereinafter expressly provided, in derogation of, the Guardians and Wards Act, 1890. Section 5 also opens up with the expression 'Save as otherwise expressly provided in this Act'. There is no express provision in the Act of 1956 which excludes the definition of 'guardian' contained in the Guardians and Wards Act, In view of the provisions of Section 2 of the Act of 1956, it must be held that the persons falling under the definition of the word 'guardian' under Section 4 (2) of the Act of 1890, could be proceeded against under section 41 (3) of that Act. Merely because a de facto guardian is not expressly included in the definition of 'guardian' in Section 4 (b) of the 1956 Act, that does not prevent the operation 'of section 41 against a de facto guardian/ Moreover, the definition of 'guardian' is an inclusive definition and I see no reason why a person who acts as a de facto guardian should not fall within the said definition.

11. Mr. Kapse has drawn my attention to a decision of the Kerala High Court in P. N Ramchandra v. Section V. Annapurni Ammal wife of P. N. Ramchandra Iyer : AIR1964Ker269 . That court took the view that in the context of Section 4 of the Act, the word 'includes' is used only to enumerate the different classes of persons coming within the definition. After the Act, a person cannot claim to be the legal guardian of a Hindu minor unless he or she comes within one of the four classes of persons enumerated in its Section 4 Clause (b). The court also held that after the enactment of the Hindu Minority and Guardianship Act, 1956, no one can be found to be a guardian of a Hindu minor unless one satisfies the definition of 'guardian' in the Act; and the Act has overriding effect and has superseded all existing law on the matters dealt with in the Act. In this view of the matter, the court held that an application under Section 25 of the Guardians and Wards Act for the custody of the minor against a person who is not a de jure guardian was not maintainable. With respect, it is not possible to agree with this view of the Kerala High Court having regard to the provisions of section 2 and the wording of section 5 of the Hindu Minority and Guardianship Act. The effect of the provisions of section 2 does not seem to have been considered by the Kerala High Court.

12. According to Mr. Kapse, the position of the so called de facto guardian in this case would be merely that of a manager and if that is so, an application against such a person under Section 41 (3) would be incompetent. In support of his contention that in law there is nothing like a de facto guardian, reliance was placed by him on the observations of the Federal Court in the case of Sriramulu v. Pundarikakshayya . Undoubtedly, while dealing with the powers of a de facto guardian to execute a promissory note in the name of minor so as to bind his estate, the court had, observed that in law there is nothing like a de facto guardian, and such a person can aptly be described as a de facto manager. The observations were made in the context of binding nature of the promissory note executed by a de facto manager on behalf of a Hindu minor. The case has, therefore, no bearing on the question before me. Deochand who was in the. management of the minor's estate could fall within the definition Of 'guardian' under the Guardians' and Wards Act. The facts of this case clearly show that Deochand was put in charge and management of the property of the minor, and he continued to manage his property in the said capacity till the minor attained majority. I fail to see why in the circumstances Deochand cannot be a guardian within the definition of Section 4 (2) of the Act. As pointed out above, the definition of 'guardian' under the Act is wide. Any person who has the care of the person of the minor or of his property or of both his person and property is his guardian within the meaning of the Act. Having regard to the above discussion on the legal position. I have no hesitation in holding that the present application under Section 41 (3) is maintainable in law.

13. The trial court has on a consideration of the evidence on record held that the opponent Deochand acted as a guardian of the applicant during his minority. This finding recorded by the trial court is purely based on appreciation of evidence. Mr. Kapse was unable to show that the appreciation of evidence is perverse or arbitrary in any manner. I see no reason to interfere with the finding of fact recorded by the trial court on this question.

14. The contention that the applicant has failed to establish his ownership of the land Survey No. 102 must also be rejected. In fact, there is sufficient documentary evidence on record to show that the land was purchased by the applicant's father Ramchandra from one Rukminibai. The documentary evidence on record further shows that the name of the applicant was entered as the Kabjedar of the land in the village records, end there is also an entry which shows that the applicant had inherited the land as an heir of Ramchandra. There are entries in the pahanipatrak as well as record of rights to the effect that the opponent is holding the said land as the guardian of the applicant and these entries are from the year 1955-56 right upto 1976-77. The opponent tried to make out a case that the land was allotted to his share in partition between him and his brother Ramchandra. As observed by the trial court, he has not produced any documentary evidence in support of this case. In fact the documentary evidence referred to above clearly negatives his case that the land was allotted to him in family partition. T see no reason to interfere with this finding of the trial Court which is based on evidence that the opponent was in possession of the land in question in his capacity as the guardian of the applicant. If the land was allotted to the share of the opponent in the alleged partition, one fails to see how the opponent allowed entries to be made in the village records to the effect that the applicant inherited the land from Ramchandra and also that he was in possession of the land as the guardian. The trial court has carefully considered the evidence on record and has reached a finding that the opponent was put in possession of the suit land as the applicant's guardian, and I see no reason to interfere with the view taken by the trial court on this point. There is therefore no substance in the contentions raised by Mr. Kapse.

15. The trial court has rejected the claim of the applicant regarding the house and the moveables. Mr. Dabir fairly conceded that there is no evidence regarding the moveables belonging to the applicant having been given in possession of or taken charge of by the opponent. He, therefore, did not press the claim regarding the moveables. However, he submitted that the trial court has failed to consider the important material on record which conclusively establishes that the suit house belonged to his father Ramchandra and was inherited by him on his death. In this connection, he firstly placed reliance on the statement made by the opponent in the cross-examination to the effect that the house No. 608 is entered in the name of the applicant in the Grampanchayat record. Secondly, he placed reliance on a letter dated December 20, 1970 issued by the Sarpanch of the Village Panchayat wherein he has certified that House No. 608 is shown in the Grampanchayat record in the name of the applicant as owner. As far as the admission of the opponent in the cross-examination is concerned, it must be noticed that the opponent has clearly stated in the cross-examination itself that the record maintained in the Village Panchayat is not correctly maintained. The applicant on whom the burden lay of proving that the house No. 608 belonged to him or to his father ought to have produced extracts from the entries in the Grampanchayat record. In the absence of such record, no importance can be given to the statement made by the opponent in the crass-examination that the applicant's name is entered in the Grampanchayat record. Similarly, the applicant has not proved the letter issued to him by the Sarpanch of the Grampanchayat. This letter has been signed by the Gramsevak for the Sarpanch of the Grampanchayat. Neither the Gramsevak nor the Sarpanch has been examined in the case. Moreover, the primary record which formed the basis of the information contained in the letter is not forthcoming. This letter, therefore, is of no assistance to the opponent. The trial court was, therefore, justified in rejecting the claim of the applicant to the house in the absence of any cogent evidence led by him to show that the house belonged to him or his father Ram-chandra.

16. Mr. Dabir contended that the case of the opponent that the house No. 608 was allotted to him in partition has not been established by him, and this circumstance by itself is sufficient to lead to an inference that the applicant is the owner of the house. It is not possible to accept this submission. It was for the applicant to prove by evidence that he is the owner of the house. The applicant cannot succeed unless he proves his title to the house.

17. In the result, both the revision applications must be dismissed. Rule discharged in both the revision applications. In the circumstances of the case, there shall be no order as to costs.

18. Applications dismissed.


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