Skip to content


Rajendra Prasad Agrawal Vs. Smt. Abnash Kaur and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 2737 of 1966
Judge
Reported inAIR1968All347
ActsGuardians and Wards Act, 1890 - Sections 7 and 12; Hindu Minority and Guardianship Act, 1956 - Sections 8; Constitution of India - Article 226
AppellantRajendra Prasad Agrawal
RespondentSmt. Abnash Kaur and anr.
Appellant AdvocateB.R. Avasthi, ;R.P. Rai and ;G.N. Kunzru, Advs.
Respondent AdvocateS.C. Khare, Adv.
DispositionPetition dismissed
Excerpt:
.....- interim order issued - certain dividends to be deposited in court - application filed for guardianship - returned for presentation to proper court - appeal in high court - court discharging interim order - held, natural guardian was entitled to receive and take custody of properties of a minor. - - it will be the duty of the district judge to see that the money is given to the person best entitled under the circumstances. the natural guardian would normally be the right person to be given the property of the minor unless some other person with a better right can be found. 7. all this apart, the petition is liable to fail on two grounds raised by the learned counsel for the first respondent......had been deprived of the custody of this money for several years because of the orders of the districtjudge keeping the money in deposit. it will be advancing the interest of justice if the money goes to the right hands. 6. for the petitioner reliance was placed on surendra nath goswami v. bansi badan goswami, 36 ind cas 457 = (air 1918 cal 911). this case has no material bearing. there it was held that if the initial order is without jurisdiction, all subsequent orders will fall with it. the petitioner has not contended that the initial orders of the district judge summoning the money were without jurisdiction. reliance was also placed on rahim bux v. haji sanaullah : air1963all320 . this case deals with the method of attachment of properties outside the district. it also deals.....
Judgment:
ORDER

Satish Chandra, J.

1. This petition under Article 226 of the Constitution prays that the District Judge, Saharanpur, be directed not to pay the amount of Rs. 57,865 to the first respondent.

2. The matter arises out of proceedings for guardianship of the property of Kamal Kishore, minor son of the deceased Seth Shiv Prasad. Seth Shiv Prasad died in May 1957 leaving 7 sons from his first wife and from his second wife Smt. Abnash Kaur one minor son Kamal Kishore. At first one Indra Sen filed an application in 1960 before the District Judge, Saharanpur, for appointment as the guardian of the properties of the minor. That was dismissed on 10th March, 1962 whereafter the present petitioner made another application for the same purpose. During the pendency of these proceedings the petitioner made an application to the District Judge for directing that the dividends payable to the minor by Lord Krishna Sugar Mills be deposited in his Court. The District Judge passed orders accordingly. For the years 1961-62 to 1964-65 a sum of Rs. 57,865 was thus deposited with the Punjab National Bank, Ltd., under the orders of the District Judge, Saharanpur. The District Judge by his order dated 14-4-1.966 held that he had no territorial jurisdiction to entertain the application and he directed that it be returned to the petitioner for presentation to the proper Court.

Aggrieved the petitioner filed an appeal (F.A.F.O No. 174 of 1966) against this order. The appeal was filed on 18-5-1966 along with an application for an injunction that the District judge be directed not to pay out the amount of dividends to the respondent Abnash Kaur or to any other person other than the guardian of the minor appointed by the Court. The First Appeal from Order was admitted on 23-8-1966 and the same day the Bench issued an ad interim injunction directing the District Judge not to pay out the amount to any one. Meanwhile, the present petition was filed on 8-8-1966 and a similar ad interim order was obtained in this writ petition.

3. The application for injunction filed in the First Appeal from Order No. 174 of 1966 came up for final hearing on 9-9-1966. A Division Bench of this Court, after hearing learned counsel for both parties at length held that they did not think it proper that an interim order should be passed. The interim order passed on 23rd August, 1966, was discharged. It was also observed that the District Judge can hand over the money to the natural guardian, the mother, if there is no other stay order.

4. On the merits of this writ petition learned counsel urged that since the District Judge held that he had no territorial jurisdiction to entertain the petition for guardianship, he in law does not possess any jurisdiction to pass any orders with respect to the payment of the amount of dividend to any person except the Lord Krishna Sugar Mills from whom the money was summoned or to any person who may be appointed as the guardian of the minor's property by the Court. In other words the District Judge, so the submission runs, has no jurisdiction to pay the money to the first respondent who is the mother of the minor and as such his natural guardian.

5. The dividends are the property of the minor. The first respondent is the natural guardian being his mother. No guardian has yet been appointed by any Court. The mother, therefore, continues to be the natural guardian of the minor's person as also his property. In that capacity she would be entitled to receive and take custody of the properties of the minor. In the normal course she would have received the dividends from the mills. At the petitioner's instance the dividends were summoned by the District Judge and are lying in deposit under his orders. At the termination of the proceedings for guardianship the District Judge has to make some directions with respect to the disposal of this money. Learned counsel does not deny that the District Judge has jurisdiction to do so. According to him he can only pass one of the two kinds of orders stated by him. I am not inclined to accept this submission. Once the jurisdiction of the District Judge to make an order about the disposal of the money 'is conceded, no such condition or inhibition, as has been suggested for the petitioner, can be imposed either on principle or authority. It will be the duty of the District Judge to see that the money is given to the person best entitled under the circumstances. He would be entitled to direct that it be paid back to the mills from which it came but it will not be beyond his jurisdiction to pay it to the rightful person. The natural guardian of a person is entitled to receive and take custody of properties of a minor. The natural guardian would normally be the right person to be given the property of the minor unless some other person with a better right can be found. It will be in the interest of justice that the District Judge pays the money to the natural guardian rather than follow the technical course of sending back the money to the mills and leaving the natural guardian to approach the mills. The natural guardian had been deprived of the custody of this money for several years because of the orders of the DistrictJudge keeping the money in deposit. It will be advancing the interest of justice if the money goes to the right hands.

6. For the petitioner reliance was placed on Surendra Nath Goswami v. Bansi Badan Goswami, 36 Ind Cas 457 = (AIR 1918 Cal 911). This case has no material bearing. There it was held that if the initial order is without jurisdiction, all subsequent orders will fall with it. The petitioner has not contended that the initial orders of the District Judge summoning the money were without jurisdiction. Reliance was also placed on Rahim Bux v. Haji Sanaullah : AIR1963All320 . This case deals with the method of attachment of properties outside the district. It also deals with the proviso (B) to Order 21, Rule 19 (1), C.P.C. I have not been able to appreciate the relevancy of this case.

7. All this apart, the petition is liable to fail on two grounds raised by the learned counsel for the first respondent. He urged that the present writ petition was for a relief which the petitioner sought in the application for an injunction filed in the First Appeal from Order instituted by him. Article 226 of the Constitution is not intended to serve as a substitute for merely an order in the nature of stay which a person can obtain in a pending appeal. The petitioner has abused the remedy of Article 226 of the Constitution. The petitioner had applied for an injunction in the appeal filed by him on 18-5-1966. It appears that after the District Judge returned the petitioner's application for presentation to the proper Court, the petitioner applied for two months' time for obtaining an order of stay from the High Court. That prayer was granted on 21-4-1966. On 27-5-1966 the petitioner was given another two months for that purpose. This period expired on or about 27-7-1966. By that time the petitioner's appeal had not been admitted and he had not been able to obtain interim order in the appeal.

The petitioner did not apply to the District Judge for further time but he filed the present writ petition and obtained an interim order on 8-8-1966. It seems that the primary purpose of the present writ petition was merely to obtain an interim order. This does not appear to be a legitimate use of Article 226 of the Constitution. Learned counsel further urged that the injunction prayed for having been refused by a Division Bench in the First Appeal from Order, this was not a fit case for grant of the same relief under Article 226 of the Constitution. For the petitioner it was urged that the Division Bench dismissed the application for injunction for the reason that there was already a stay order existing in the writ petition. I do not think it is so. The Division Bench heard learned counsel for both sides at length and went through the affidavits. They then held that it was not proper that an interim order should be passed. They observed that the District Judge can hand the money over to the natural guardian, the mother, if there is no other stay order. The last phrasewas designed to obviate any confusion or conflict that may arise in the mind of the District Judge because on 9-9-1966 when the Division Bench passed the final order, the stay order granted in the writ petition was still in operation. The order of the Division Bench does not indicate that they vacated the interim order because there was a stay order already existing in the writ petition. They heard the matter on the merits and then came to the conclusion that it was not proper that an interim order should be passed. They seem to be of the opinion that the merits of the case do not deserve the interim order. This, therefore, is not a fit case where a discretionary jurisdiction under Article 226 of the Constitution be exercised in favour of the petitioner.

8. For the respondents it was urged that the petitioner has been set up by the step-sons of the first respondent who are out to harass and humiliate the first respondent by involving her in many litigations. Since the petition fails for reasons mentioned above, I do not consider it necessary to examine this submission in detail though it does not appear to have substance.

9. In the result, the petition fails and isdismissed with costs.


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