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Narotam Vs. Mt. Tapesra and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Reported inAIR1934All849
AppellantNarotam
RespondentMt. Tapesra and anr.
Excerpt:
.....proceeding on the application, it shall fix a day for the hearing thereof, and cause notice of the application of the date fixed for hearing to be served on the persons enumerated in that section. the .objection of the learned counsel is, at best a technical objection and, in the absence of a definite provision in the act to the effect that a judge has no jurisdiction to appoint a person as guardian of the minor who has not filed an application in accordance with the provisions of section 10 of the act, we are not prepared to give effect to that contention. in a matter like the present this court is reluctant to interfere with the exercise of 'discretion by the district judge and in the present case no cogent reasons have been assigned to induce us to set aside the order passed by the..........of putting their case before the court; and then the judge has jurisdiction to appoint such person as guardian of the minor who in his opinion, in accordance with the provisions of section 17 of the act, should be appointed. it is not disputed in the present case that all the persons interested in the matter of the appointment of a suitable guardian of mt. piyari were before the court below and did adduce ail the evidence that they wanted to produce. the .objection of the learned counsel is, at best a technical objection and, in the absence of a definite provision in the act to the effect that a judge has no jurisdiction to appoint a person as guardian of the minor who has not filed an application in accordance with the provisions of section 10 of the act, we are not prepared to.....
Judgment:

Iqbal Ahmad, J.

1. This appeal is directed against an order of the Court below appointing Mt. Tapesra as guardian of the person of Mt. Piyari minor. Mt. Tapesra is the own sister of Mt. Piyari. Sita Ram the father of Tapesra and Piyari died in the year 1931. Narotam the appellant before us professes to be the real brother of the maternal grandmother of Mt. Piyari. He filed an application in accordance with the provisions of Section 10, Guardians and Wards Act, to be appointed guardian of the person of Mt. Piyari. The application was opposed by Mt. Tapesra and by another woman named, Mt. Sahodra. The learned Judge, after consideration of the evidence in the case came to the conclusion that Narotam and Sahodra were not fit persons to be appointed guardian of the minor. He held that Tapesra was the most suitable person to be appointed guardian and accordingly passed the order appealed against.

2. The first contention raised by ^the Learned Counsel for the appellant is that as Tapesra had not filed an application to be appointed a guardian, the learned Judge of the Court below had in jurisdiction to appoint her guardian of the minor. In support of this contention our attention has been drawn to Sections 7, 8, 10 and 11, Guardians and Wards Act. Section 7 provides that where the Court is satisfied that it is for the welfare of a minor that an order should be made appointing a guardian of his person or property or both, the Court may make an order accordingly. It is provided by Section 8 that an order appointing a guardian under Section 7 of the Act, shall not be made except on the application of the person desirous of being, or claiming to be, the guardian of the minor, or of the Collector of the district or other local area within which the minor ordinarily resides or in which he has property or of the Collector having authority with respect to the class to which the minor belongs. Section 10 prescribes the contents of an application under Section 8 by a person other than the Collector. Section 11 then provides that if the Court is satisfied that there is ground for proceeding on the application, it shall fix a day for the hearing thereof, and cause notice of the application of the date fixed for hearing to be served on the persons enumerated in that section.

3. It is argued by the Learned Counsel that as Mt. Tapesra had not filed an application in accordance with Section 10 of the Act, nor had intimated her willingness to act as guardian by a declaration signed by her and attested by two witnesses as provided by Clause (3) of Section 10, the learned Judge had no jurisdiction to appoint Mt. Tapesra as guardian. In our judgment, there is no force in this contention. It is true that a Judge is not authorised by law, in the absence of an application for the appointment of a guardian, to pass an order appointing the guardian of a minor. But once an application has been filed in accordance with the provisions of Section 10, the jurisdiction of the Judge under the Guardians and Wards Act, comes into play and it is open to the Judge, as a result of the inquiry initiated on the application for point a person other than the applicant point a person other than the applicant as guardian of the minor, provided the person so appointed has intimated his willingness to act as a guardian. It may be that it would be more in conformity with law that such willingness be communicated to the Court by means of an application in accordance with the provisions of Section 10 of the Act. But the absence of such an application by the person appointed guardian by the Court is no bar to the jurisdiction of the Court to appoint him guardian. The object of Section 11 of the Act, is to give an opportunity to all the person having an interest in the minor, of being heard before an order appointing a guardian is passed. Once an application is made under Section 10 and notices of the, application are issued to the persons mentioned in Section 11, all the interested parties have the opportunity of putting their case before the Court; and then the Judge has jurisdiction to appoint such person as guardian of the minor who in his opinion, in accordance with the provisions of Section 17 of the Act, should be appointed. It is not disputed in the present case that all the persons interested in the matter of the appointment of a suitable guardian of Mt. Piyari were before the Court below and did adduce ail the evidence that they wanted to produce. The .objection of the Learned Counsel is, at best a technical objection and, in the absence of a definite provision in the Act to the effect that a Judge has no jurisdiction to appoint a person as guardian of the minor who has not filed an application in accordance with the provisions of Section 10 of the Act, we are not prepared to give effect to that contention. The view that we take is in consonance with the view taken in Sundarmoni Dai v. Bangsidhar Patnaik 1914 Cal. 875. On the merits in our judgment, the learned Judge arrived at a correct conclusion.

4. It appears that Sita Ram lived in a portion of the house of Narotam appellant for a period of 2 or 3 years before his death and the minor, Mt. Piyari, also lived with Sita Ram. After the death of Sita Ram a complaint under Section 406, Penal Code, was filed by Mt. Tapesra against Narotam and Mt. Sahodra. During the pendency of that criminal case some compromise was arrived at between the parties. The terms of that compromise are in dispute in the present proceedings. Narotam placed reliance on a deed of agreement dated 3rd February 1932. In accordance with that deed Narotam was given the right to have the custody of the minor and it was further provided by the deed that Mt. Sahodra was to pay a sum of Rs. 55 to Narotam for the marriage expenses of the minor and a sum of Rs. 50 for the funeral ceremonies of Sita Ram. Mt. Tapesra denied the execution of the deed of agreement and alleged that 'her thumb' impression was taken on a blank paper and the same was utilised for drawing up the agreement in question. She stated that when the agreement was read over to her by a mukhtar she threw the agreement at Narotam and refused to have the same registered. In support of her allegation that she did not voluntarily execute the deed of agreement she relied on a receipt dated 3rd February 1932. The contents of the receipt do undoubtedly support to a certain extent the assertion of Tapesra that she did not execute the deed of agreement in question. It is recited in the receipt that a sum of Rs. 105 was received by Narotam on and account of the expenses of the minor and of the expenses of the funeral ceremonies of Sita Ram. The receipt is in the handwriting of Narotam himself. The contents of the receipt suggest that the sum of Rs. 105 was paid to Narotam in liquidation of the amount spent by him either for the maintenance' of the minor or, for the expenses of the funeral ceremonies of Sita Ram. If Mt. Tapesra had agreed to allow Narotam to retain custody of the minor, there could be no point in Mt. Tapesra paying to Narotam the amount spent by him towards the maintenance of the minor.

5. It may be assumed for the purposes of the present case that Narotam is the brother of the maternal grandmother of Mt. Piyari, though the evidence of Narotam on the point is far from satisfactory. The fact however remains that Mt. Tapesra is the own sister of the minor and there is nothing on the record to suggest that she has an interest adverse to the minor. It was suggested by the Learned Counsel for the appellant that as Mt. Tapesra claims under a will alleged to have been executed by Sita Ram, her interest must necessarily be adverse' to the minor. The fact that Sita Ram executed a registered will was not denied in the Court below. Indeed it is recited in the deed of agreement that Sita Ram executed a registered will. The learned Judge has pointed out that Narotam is a man with doubtful antecedents, having been fined twice for gambling. In a matter like the present this Court is reluctant to interfere with the exercise of 'discretion by the District Judge and in the present case no cogent reasons have been assigned to induce us to set aside the order passed by the Court below and to appoint Narotam as guardian of the minor.

6. We accordingly affirm the decision of the Court below and dismiss this appeal with costs.


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