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Ram Sahai Vs. Chhotey Lal - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1921All256; 63Ind.Cas.567
AppellantRam Sahai
RespondentChhotey Lal
Excerpt:
.....he bad been twice convicted for offences against property under the indian penal code, toe only evidence, by the way, of this fast now before us is a statement by ram sahai in a subsequent affidavit that, twenty years ago, he was convicted of something to do with a woman which, of course, is no evidence at all in support of the finding. we now have before us a strong affidavit by the lady herself, which has been in the hands of the other aide for some months and is uncontradicted, expressing a strong preference for the man who has been removed, which would have forced us, in any event, to enquire further into this order whish is under appeal, but also stating that she will be 21 in may 1922. every body seems to have overlooked the fast that she became an adult at 18 unions an order..........matters were consolidated in substance by order and ordered to come up for disposal on the 17th of april 1920; ram sahai having meanwhile been directed to prepare a draft of the proposed agreement, file accounts and do other things with a view to showing his credentials for resisting the application to remove him and supporting his application for raising the money by mortgage. it is the orders of the court on that date, the 17th of april, to which we wish to draw attention. first, an order was passed, which is the order complained of, by the court saying that ram sahai was not present either in person or by a pleader, giving no reason for his absent and not explanation of what was done to secure his presence or delay the hearing until he arrived. then, the court, behind his back and.....
Judgment:

1. Technically, this is an appeal from an order of the 17th of April 1920 by the District Judge of Agra removing one Ram Sahai from the position of guardian and appointing in his place one Chhotey guardian of the person and property of the minor. The case which has been very carefully laid before us, when examined, is shown to raise a variety of questions about which it is not necessary for us to express our opinion. For example, there is a subsequent order of the same Judge of the 26th of June 1920 which, it is objected before us, is not appealable at all. There is one matter to which our attention has been drawn which, we think, we ought to refer to by way of warning to the learned Judge and others so that the same procedure should not be followed in another case. Ram Sahai, the maternal uncle of the minor, having been appointed guardian by the District Judge for reasons which he gave, applied for leave to mortgage some property, while, on the other hand, his opponent Chhotey opposed this application and sought to remove Ram Sahai. Both these matters were consolidated in substance by order and ordered to come up for disposal on the 17th of April 1920; Ram Sahai having meanwhile been directed to prepare a draft of the proposed agreement, file accounts and do other things with a view to showing his credentials for resisting the application to remove him and supporting his application for raising the money by mortgage. It is the orders of the Court on that date, the 17th of April, to which we wish to draw attention. First, an order was passed, which is the order complained of, by the Court saying that Ram Sahai was not present either in person or by a Pleader, giving no reason for his absent and not explanation of what was done to secure his presence or delay the hearing until he arrived. Then, the Court, behind his back and without a scrap of evidence, held as a fact that he bad been twice convicted for offences against property under the Indian Penal Code, Toe only evidence, by the way, of this fast now before us is a statement by Ram Sahai in a subsequent affidavit that, twenty years ago, he was convicted of something to do with a woman which, of course, is no evidence at all in support of the finding. But, returning to the point which we were criticising, whereas this very stringent and prejudicial order had been passed against him in his absence, when he did turn up to support his own application the same day, and there is not a strap of evidence before us to show what interval of time had elapsed, he was merely informed that the matter had already been disposed of. Apart from the fact that this looks remarkably as though the Court's right hand did not know what its left hand was doing, it is a misconception of the Court's duty under this Act to treat an application for guardianship or proposed guardian as though the applicant was a party in a suit and to dispose of the matter in his absence merely by making in order in favour of his opponent as though the absent person were a defaulter in a civil suit. We agree that this is a mistaken view of the duties of the Court under the Guardians and Wards Act. Having said so much, we now came to the real point on which we propose to dispose of in this case. The learned Judge has adopted a finding in some civil suit that the widow is a minor, and every body connected with the case seems to have accepted the same view and proceeded upon that hypothesis. We do not agree with this either. We think the Court under this Act must take an independent view of its own. We now have before us a strong affidavit by the lady herself, which has been in the hands of the other aide for some months and is uncontradicted, expressing a strong preference for the man who has been removed, which would have forced us, in any event, to enquire further into this order whish is under appeal, but also stating that she will be 21 in May 1922. Every body seems to have overlooked the fast that she became an adult at 18 unions an order had been made appointing a guardian. We are of opinion, on the admitted fasts before us, that she is by law mi juris. We, therefore, counsel the order of the 17th of April removing Ram Sahai and all previous orders appointing him. We take up in revision the order of the 26th of June and hold that the Court below had no jurisdiction to make it. We quash that order and any orders made by the Court under the Guardians and Wards Act since Marsh 1919 and declare that she is no longer a minor. Bash party must pay, its own cats.


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