Skip to content


Chaganlal Vijayawargiya Vs. Astor Quisth and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 1901 to 1904 of 1970
Judge
Reported inAIR1972AP49
ActsCode of Civil Procedure (CPC), 1908 - Order 1, Rule 10; Guardians and Wards Act, 1908 - Sections 10
AppellantChaganlal Vijayawargiya
RespondentAstor Quisth and anr.
Appellant AdvocateA. Lakshminarayana, Adv.
Respondent AdvocateM. Rama Mohan Rao, Adv.
Excerpt:
.....and requested to appoint him as guardian - petitioner a social activist can be treated as person interested in welfare of minor - desire of petitioner to bring up minor in indian traditional manner to be considered - held, petitioner entitled to implead in application filed by respondents for appointment as guardian. - - it enjoins that if the court is satisfied that there is ground for proceeding on the application, it shall fix a day for the haring thereof and cause notice of the application and of the date fixed for the hearing. where the subject-matter of a litigation is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the court is of the opinion that by adding that party, it would be in..........of the guardian may cease under section 41 and s. 43 empowers the court on the application of any person interested or of its own motion to make an order regulating the conduct of proceedings of any guardian appointed or declared by the court.17. what emerges from the above said provisions is that the proceeding of appointment of guardian is a very delicate proceeding and any order made in such proceeding is likely to affect one way or the other the future of the child. and it is only from that point of view that the court is clothed with good deal of powers on one hand and is enjoined on the other to be careful in conducting the proceedings and in passing the final order. it is also manifest that the court under s. 11(a)(iv) in order to discharge the said obligation effectual can issue.....
Judgment:

Gopal Rao Ekbote, J.

1. These are the revision petitions filed against the order of the Chief Judge, City Civil Court, Hyderabad made in I. A. Nos. 18888 to 1891 of 1970 in O. P. Nos. 291, 292, 297 and 298 of 1970 on 10th November, 1970.

2. The arterial facts are that the respondents herein made applications to the Chief Judge. City Civil Court, Hyderabad under Section 10 of the Guardians and Wards Act, 1890 (hereinafter called the Act) for appointing them as guardians alleging inter alia that after the custody of the children is given to them as guardians, they intended o adopt the children and act as foster parents.

3. After the petitions were filed, it was published in The Hindu, calling for objections, if any, from persons interested in the children.

4. The petitioner who is the Secretary Arya Prathinidhi Sabha. Hyderabad filed applications I. A. Nos. 888 to 1891 of 1970 requesting the Court to implead him as party to the petitions. He alleged that the Arya Prathinidhi Sabha runs regular homes for deserted children or for children who are either orphans or not claimed by parents. The Sabha bring them up in the regular Indian traditions. The petitioner also offered to take care of the children and bring them up and he showed his willingness to produce the children before the Court as and when required. He also opposed the appointment of the respondents as the guardians mainly on the ground that they are foreigners and are not amenable to the control of the court.

5. No counter was filed by the respondents in spite of notices served upon them. Their advocate, however opposed the petition during the course of the arguments.

6. The learned Chief Judge rejected the petition wholly on the ground that the petitioner is not a necessary and proper party to be impleaded as he has no locus standi. It is this view that is now assailed in these revision petitions.

7. Now, it is not in doubt that the proceedings before the District Court as defined in the Act are governed by the provisions of the Code of civil Procedure subject, of course, to the provisions specifically made by the Act or the rules made thereunder. Admittedly, there is no provision in the Act or the rules made thereunder on the lines of Order 1, Rule 10, Civil P. C. under which provision necessary or proper parties could be impleaded in the proceedings. In the absence of any such provision. it can hardly be doubted that the provisions of Order 1, Rule 10, would be attracted to the proceedings under the Act. That this is so is seen from the following decisions: G. Satyanarayana v. Satyanarayana Murthy, (1967-2 Andh WR 479); Radha Bai v. B. Chinnayya, : AIR1968AP353 and T. Venkatesan v. a. Krishnaiah. (1966-2 Andh WR 245).

8. Let us then examine whether the petitioner is a necessary or proper party to the proceedings under the Act. It was a common ground that the petitioner is not unnecessary party to the proceedings. The arguments centered round the question as to whether he can be said to be a proper party.

9. Now under Section 8 of the Act, an order shall not be made under section 7 except on the applications of the person desirous of being or claiming to be the guardian of the minor. Admittedly, the respondents have filed their main applications for the appointment as guardians on the basis of this provision. The applications were filed under Section 10 of the Act. Section 11 prescribes the procedure on admission of application. It enjoins that if the court is satisfied that there is ground for proceeding on the application, it shall fix a day for the haring thereof and cause notice of the application and of the date fixed for the hearing. Such a notice shall be served in the manner directed in the Code of Civil Procedure, firstly, on the parents of the minors, secondly on the person, the custody or possession of the person of the minor, thirdly on the person proposed in the application to be appointed or declared guardian unless that person is himself the applicant and finally on any other person to whom, in the opinion of the Court, special notice of the application should be given.

10. Such a notice shall be posted on some conspicuous part of the court house and of the residence of the minor and shall be otherwise published in such manner as the Court, subject to any rules made by the High Court under this act. thinks fit.

11. Under the rules made by the High Court, the notice can be published in a newspaper. It is in pursuance of that provision that such a notice was published in the Hindu daily calling for the objections from the interested persons.

12. It is only after the said notice was thus published that the petitioner filed the applications to impleaded him as a party. The contents of the applications reveal that he is not only interested in opposing the petition mainly on the ground that the respondents being foreigners are not amenable to the control of the court for appointing them as guardians and therefore they cannot be appointed as guardians, but he is also claiming himself to be appointed either as a guardian or I seeking the custody of the children with a view to being them up in the Indian traditional manners.

13. The question, in these circumstance, is whether the petitioner can be said to be a proper party in the proceedings instituted by the respondent. In Razia Begum v. Answer Begum, : [1959]1SCR1111 it was held that the question of addition of parties under Rule 10 of Order 1 of Civil P. C. is generally not one of initial jurisdiction of the Court, but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case. The Supreme Court further laid down that;

'Where the subject-matter of a litigation is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the court is of the opinion that by adding that party, it would be in a better position effectual and completely to adjudicate upon the controversy.'

14. Rule 10 of Order 1, Civil P. C. also enjoins that the court may order that the name of any party my be added if in the opinion of the court his presence before the court may be necessary in order to enable the court effectual and completely to adjudicate upon and settle all the questions involved in the suit or proceedings.

15. It is also relevant to note that under Section 17 of the Act in appointing or declaring the guardian of a minor, the Court, subject to the provisions of that section, shall be guided by what, consistently with the law to which the minor is subject , appears in the circumstances to be for the welfare of the minor. And while considering the welfare of the minor, the court must have due regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor and other things mentioned in that section. Section 7 under which an order as to guardianship is made directs that where the court is satisfied that it is for the welfare of a minor that an order shall be made , then, according to that section an order will be made. What is manifest in such cases is that the predominant consideration is the welfare of the minor. In order to effectual consider the welfare of a minor, it becomes necessary not only to have regard to the factors specifically consider the welfare of a minor, it becomes necessary not only to have regard to the factors specifically mentioned in Section 17 but attention will have to be paid to several other relevant factors. The obligation of the Court to carefully consider the welfare of the minor enhances in a case where it is found that the minor is a girl of a very tender age and is although not an orphan but is a deserted child and her percents are not known.

16. It is also to be remembered that Section 39 of the Act empowers the Court to remove the guardian appointed by it for grounds mentioned therein which includes a ground that the appointed guardian has ceased to reside within he local limits of the jurisdiction of the Court. The guardian also may resign. The authority of the guardian may cease under Section 41 and S. 43 empowers the court on the application of any person interested or of its own motion to make an order regulating the conduct of proceedings of any guardian appointed or declared by the Court.

17. What emerges from the above said provisions is that the proceeding of appointment of guardian is a very delicate proceeding and any order made in such proceeding is likely to affect one way or the other the future of the child. And it is only from that point of view that the Court is clothed with good deal of powers on one hand and is enjoined on the other to be careful in conducting the proceedings and in passing the final order. It is also manifest that the court under S. 11(a)(iv) in order to discharge the said obligation effectual can issue notice to any other person to whom, in its opinion, special notice of the application should be given. Persons interested in the minor are allowed to file applications for the purpose of regulating the conduct of the proceedings or obtain specific orders regarding the minor.

18. Now, the term 'persons interested' has no definite meaning and is not a word of art. Whether a particular person is interested or not has to be been in the context of the nature of the proceedings and the consequences which any order passed in such proceedings is likely to produce. It is not necessary that in order to be a person interested he or she must be related to the minor. If the petitioner makes out satisfactorily that he is a person who is interested in the welfare of the child, the Court should not ordinarily hesitate and allow him to go on record as a party, so that he will render useful assistance to the Court improperly discharging this very heavy obligation which the Act placed on the Court And, as seen from the above said Supreme Court decision, in such cases the rigid rules which are ordinarily followed in ordinary litigation have necessarily to be relaxed. And we fail to see why a person, who bona fide comes to the court with a view either to oppose the application made by the respondents or along with it wants himself to be appointed as guardian or seeks custody of the child for the purpose of bringing he girl up, cannot be called as a person interested in the minor.

19. It the facts of the present case are examined in the background of what is said above, it will be clear that the petitioner, who is the Secretary, of a responsible social and cultural organisation such as Arya Prathindhi Sabha and who bona fide desires to opposite the application on the ground mentioned above as well as offers himself to be appointed as guardian or bona fide seeks the custody of the child for the purpose of bringing her up in the Indian traditional manner, can be said to be a person interested in the welfare of the minor. If it is remembered that the minor in question is a girl and if it is kept in view that the petitioner is running several homers to bring up such deserted children or orphans, then we fail to see why he should not be taken as a person interested in the welfare of the children. The respondents are neither related to the children nor they have any other interest except the interest of adopting the children. They are not citizens of India. They have applied only under Sec. 8 (a) of the Act as they are persons desirous of being appointed as the guardian. If they can apply for the appointment of guardian, the Secretary, Arya Prathinidhi Sabha can also show his desire to be appointment as guardian or in any case he is interested in opposing the application filed by the respondents.

20. In these circumstances , we are satisfied that the petitioner is a person interested in the welfare of the minor and his presence, in our opinion, is necessary for the complete and effectual adjudication of the various issues which will be involved in the proceedings now pending before the Chief Judge, City Civil Court.

21. We would therefore allow all the revision petitions and set aside the orders of the learned Chief Judge. The petitioner will be made a party to the proceedings and the case will be decide in accordance with law. In the circumstances, however, there will be no order as to costs in all the petitions.

22. Petitions allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //