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Shiv Saran Dass Bhagwan Dass Vs. Smt. Satbhirawan Trust, Delhi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.F.O. No. 23-D of 1959
Judge
Reported inAIR1961P& H17
ActsGuardians and Wards Act, 1890 - Sections 7 and 13; Code of Civil Procedure (CPC) - Sections 141
AppellantShiv Saran Dass Bhagwan Dass
RespondentSmt. Satbhirawan Trust, Delhi and ors.
Appellant Advocate G.S. Vohra, Adv.
Respondent Advocate Mastan Chand Malhotra, Adv.
Excerpt:
.....on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept..........petitioner were taken down. the case was then adjourned for orders on 2-1-1959. on 2-1-1959, the learned judge wanted to rehear the arguments in the case and adjourned the case to 9-1-1959. the order impugned in this appeal was passed by the learned district judge on 13-1-1959.2. shiv saran dass, father of the minor, has come in appeal to this court and it has been contended by his learned counsel that there has been no proper determination of the issues arising in this case. it appears that the learned judge has decided the whole dispute or what he considered to be the point in dispute on first impressions after a perusal of the pleadings. noissues were framed nor had any evidence been adduced. there is no statement of the appellant to show that he had foregone his right to produce.....
Judgment:

Shamsher Bahadur, J.

1. This appeal is directed against the order of the District Judge, Delhi, who refused to appoint the appellant Shiv Saran Dass guardian of his minor son, Om Prakash. In pursuance of the will executed by Shrimati Sat Bharanwan on 22-4-1957, the minor had to be maintained by a trust appointed by her, Shiv Saran Dass presented an application under Section 7 of the Guardians and Wards Act alleging that the minor was not being properly maintained and asked for his own appointment as guardian. Written statement was filed on behalf of the two trustees, Sant Ram Ghai and Gobind Ram on 4-12-1958.

The proceedings were adjourned for recording the statements of the parties to 12-12-1958 on which date one joint statement of the two trustees and a statement of the petitioner were taken down. The case was then adjourned for orders on 2-1-1959. On 2-1-1959, the learned Judge wanted to rehear the arguments in the case and adjourned the case to 9-1-1959. The order impugned in this appeal was passed by the learned District Judge on 13-1-1959.

2. Shiv Saran Dass, father of the minor, has come in appeal to this Court and it has been contended by his learned counsel that there has been no proper determination of the issues arising in this case. It appears that the learned Judge has decided the whole dispute or what he considered to be the point in dispute on first impressions after a perusal of the pleadings. Noissues were framed nor had any evidence been adduced. There is no statement of the appellant to show that he had foregone his right to produce evidence. Under Section 141 of the C. P. C., 'the procedure provided in this Code in regard to suits shall be followed, so far as it can he made applicable, in all proceedings in any Court of Civil jurisdiction.'

There can be no manner of doubt that the procedure of the Code is to be followed in proceedings under the Guardians and Wards Act. Moreover, Section 13 of the Guardians and Wards Act requires that 'on the day fixed for the heaving of the application, or as soon afterwards us may be the Court shall hear such evidence as may be adduced in support of or in opposition to the application'. In my view the recording of the statements of the parties is not a compliance with the requirements of law. From a perusal of the pleadings, it seems to me that it was not a case in which the panoply of judicial procedure could have been lightly dispensed with, The learned Judge has laid emphasis on the mala fides with which the petitioner in his opinion was actuated. It is not possible to draw this conclusion from the pleadings of the parties and I do not think that this ground has been made out from the material which has been placed on record.

3. The learned counsel for the respondentsubmits that Om Prakash is no longer a minorand that the entire property which was bequeathedto him by the will of Shrimati Sat Bharanwanhas been handed over to him. This is a matterwhich is not admitted and requires investigation.I feel constrained to allow this appeal and setaside the order of the learned District Judge andremand the case for decision in accordance withlaw. The parties have been directed to appearbefore the District Judge, Delhi, on 5-8-1960. Thecosts would abide the event.


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