Skip to content


Virabala and ors. Vs. Shah Harichand Ratanchand - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtGujarat High Court
Decided On
Case NumberFirst Appeal No. 697 of 1971 and Civil Appln. No. 2408 of 1971
Judge
Reported inAIR1973Guj1; (1973)0GLR88
ActsGuardians and Wards Act, 1890 - Sections 9(1) 4(5) and 25; Code of Civil Procedure (CPC), 1908 - Sections 21 and 141
AppellantVirabala and ors.
RespondentShah Harichand Ratanchand
Appellant Advocate N.M. Bhatt, Adv.
Respondent Advocate S.B. Majmudar, Adv.
Cases ReferredRev. Robert Ward v. Vlachand Umedchand
Excerpt:
family - judicial separation - sections 9 (1), 4 (5) and 25 of guardians and wards act, 1890 and sections 21 and 141 of code of civil procedure, 1908 - husband seeking judicial separation - dispute arose place of ordinary residence of minor children - husband resided at palanpur - minor children resided at vaghel on date of application - question of ordinary residence is question of fact and not question of presumption - court to consider relevant facts for finding out ordinary place of residence - court in whose jurisdiction minor ordinarily resides would try suit - as per section 141 procedure provided in code in regard to suit to be followed - provisions of section 21 cannot be made applicable. - - bhatt are well founded. a perusal of the relevant provisions of the act clearly.....2. mr. n. h. bhatt, leaned advocate appearing for the appellant has contended that the question of ordinary residence is a question of fact and not a question of presumption. he conceded that the mere face that the minor children resided at village vaghel on the date of the application by itself would not be sufficient for the court to come to the conclusion that vaghel village was the ordinary pace of residence of the minor children. the court has to look to all relevant facts and circumstances and decide on the basis of them as to what is the place of ordinary residence of minor children. mr. bhatt urged that it was an admitted position that virbala, the mother of the minor children, left her husband's home at palanpur on 31st october, 1967,. even according to the husband's own case,......
Judgment:

2. Mr. N. H. Bhatt, leaned Advocate appearing for the appellant has contended that the question of ordinary residence is a question of fact and not a question of presumption. He conceded that the mere face that the minor children resided at village Vaghel on the date of the application by itself would not be sufficient for the Court to come to the conclusion that Vaghel village was the ordinary pace of residence of the minor children. The Court has to look to all relevant facts and circumstances and decide on the basis of them as to what is the place of ordinary residence of minor children. Mr. Bhatt urged that it was an admitted position that Virbala, the mother of the minor children, left her husband's home at Palanpur on 31st October, 1967,. Even according to the husband's own case,. even prior to that leaving her husband's home Virbala used to stay more often at her parents' place rather than at her husband's home with an animus desertendi, On the ground of desertion, the husband that taken out a judicial proceeding against the wife for judicial separation. According to the petitioner's case and evidence, several persons intervened and went to call back the wife and the children. Even after coming to the outskirts of the village Vaghel, they dropped the idea of coming to Palanpur and went back to village Vaghel. Even, Ashok, the eldest son, left and did not accompany the father and his companions. It has been brought on the record that Ashok, who is the eldest son, it schooling at village Vaghel, for the last few years, from the time he started schooling. Admittedly the last child, which is a male child, is born at village Vaghel and has been all along living at village Vaghel. It is not suggested that at any time, after Virbala left with the children and went to reside with her parent's place at Vaghel, she and her minor children even came and resided with their father. In view of these circumstances and the facts brought on the record and proved, the learned trial Judge, Mr. Bhatt submitted was not justified in coming to the conclusion that Palanpur District Court has jurisdiction to hear the petition. In support of his arguments, he of has invited my attention to two decision of the Bombay High Court and also decisions of the High courts.

Mr. S. B. Majumdar, learned Advocate appearing for the respondent, father of the minor children urged that this was a petition under section 25 of the Guardians and wards Act (hereinafter referred to as the Act) and not under Section 9 of the Act. He has urged that the decisions relied upon the By Mr. Bhatt interpreting the relevant words of Section 9 cannot be pressed into service. He father contended that admittedly two minor children , who were born before Virbala left her husband home, were living with their parents, that it Virbala and Harichand at Planapur at Harichand's home. Under Section 6 of the Hindu Minority and Guardianship Act, 1956, the father was the natural guardian of the Minor children. He therefore contended that the admitted position in law was that the father was the natural guardian of the minor children and continued to be the guardian. As a natural corollary, thereafter for residence of minor children would be the ordinary place of the residence of the their guardian and admittedly the ordinary place of residence of the guardian is Palanpur. In support of his argument he laid considerable emphasis on the decision of the Nagpur High Court to which I will make reference at an appropriate place. Mr. Majmunder submitted that ordinary residence would mean the usual residence and usual residence will be the residence of the minors where they lived prior to their mother leaving her husband's home.

In my option, the arguments advanced by Mr. Bhatt are well founded. Section 9(1) of the Act states that if the application is with respect of the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. The words which require interpretation at my hands are the words 'where the minor ordinarily resides'. We have to fin d out the exact connotation of the words 'where the minor ordinary resides'. Section 25 of the Act, the which we are concerned, uses the word 'Court'. The word 'Court' is defined in Section 4(5) of the Act. clause (a) of it reads as under:--

'the Court' means the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian unless there is something repugnant in the subject or context'.

There is nothing is Section 25 to indicate that the word 'court' was intended to the given any other meaning. It is, therefore, evident that the Court referred to in Section 25 will mean the District Court having jurisdiction to entrain an application for an order appointing or declaring a person to be a guardian. In the instant case, of the Court comes to the conclusion that the ordinary residence of the minor was villages Vaghel in Taluka Sami, District Mehsana, it is the District Court at Mehsana which will have jurisdiction to hear this application. Even if we read clause (b) (ii) of sub-section (5) of Section 4 of the Act, the position is the same. it reads:--

'Where a guardian has been appointed or declared in pursuance of any such application in any matter relating to the person of the word of the District Court having jurisdiction in the place where the ward for the time being ordinarily resides'.

The instant case, Harichand, the present respondent , has not been appointed as a guardian or declared in pursuance of any such application. We will, therefore, be guided by Section 4(5)(a) of the Act. A perusal of the relevant provisions of the Act clearly indicates that there would be no difference in the position regarding jurisdiction in the case the application is not under Section 9 of the Act but is under Section 25 of the Act. If the Legislature had intended to give jurisdiction to the Court in the appointment of a guardian of a minor person or for the custody of the minor child on the basis of his legal residence, the Legislature would not have used the words 'where the minor ordinarily resides'. The Legislature could have advisedly residence of the minor or where there is the deemed residence of a minor'. In my opinion, the question of ordinary residence is a question of fact and not a question of presumption. The Court has to back into consideration the relevant facts and circumstances and find out what is the place of ordinary residence of the minor. Merely because the ordinary place of residence of the father of the minor is Planpur, it cannot be presumed that the ordinary residence of the minor children of his is plalanpur. At the same time, merely because the minor happened to be at village Vaghel on the date of the application, it cannot be presumed that that is the ordinary place of their residence. This conclusion of the mine is supported by the decision of a Division Bench of the Bombay High Court in Lakshman v. Gangaram, AIR 1932 Bom 592. It is observed:--

'A minor resident of R. district was married to a person resident of P. District Application for the appointment of guardian of the person were filed by the mother and the husband. The minor had been married for a year and had stayed a fro only five moths with her husband'.

It was held 'that considerations of convenience are relevant only when the minor ordinarily resides in two districts. In this case the minor ordinalrity resided only in R. district and so the Court at R had jurisdiction'.

Broomfield, J., has observed:--

'It is provided in Section 9 of the Act that if the application is with respect to he guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. The first question therefore is whether this minor girl Sonabai ordinarily resides in the Poona District or in the Ratnagiri District.

We have been referred to several cases but more of them is of much assistance upon the particular point. The only thins which can be said to be at all clear is that residence is a matter of fact and not matter of presumption. It cannot be presumed that the minor girl ordinarily resides in Poona merely because her husband is residing there. Now the facts are that Sonabai's Parents live in Khed in the Ratangiri District, and upto the date of her marriage Sonabai lived with the parents in Khed. Her marriage with Laxman Morshed also took place in the Khed in June 1929. After the marriage it appears that she went to live with her husband in Poona for one month. She then returned to her parents in Khed and subsequently she stayed with the husband in Poona From October 1929 to February, 1930. that is to say, out of the whole of her life she has lived for about four months in Poona; all the rest of the time she has been residing in Khed in the Ratnagiri District'. In a later decision of the Bombay High court in Chimanlal v. Rajaram, AIR 1937 Bom 158, another Division Bench of the Bombay in High Court has taken the same view. In that case an application for the custody of a minor girl was made under Section 25 by her paternal uncle residing outside the jurisdiction of court. It was found that the girl with her mother lived with him since her father's death the both were maintained by him. The court appointed the applicant as her guardian, on taking security from a person who resided with in its jurisdiction. It was held that.

'In order to give the Court jurisdiction under Section 25 the minor must be ordinarily resident' within the local limits of the jurisdiction of the Court in view of the definition of Court in Section 4(5) of the Act'.

At P. 160, it is observed--

'In view of the fact already mentioned, that the minor has spent the great par of the short life with the respondent in Kolhapur, there might have been some difficulty in this connection,. but since April 1934 she has admittedly been residing with the opponents in the Poona District. At the time the application was made in January 1935 she had already been residing with them for eight months. The husband with whom her engagement has been made is a resident of Poona,. If the application under Section 25 had not been made a tall she would doubtless have continued to reside at Poona. Under these circumstances we think that it can be said that she was ordinarily residing within the jurisdiction of the District Court of Poona at the material time both for the purpose of appointment of a guardian and for the purpose of an order under Section 25'.

It cannot be gainsaid that an arguments advanced by Mr. Majmundar get support from the decision of the Nagpur High Court in Vimlabai v. Baburao, AIR 1951 Nag 179. Mudholkar, J,. (as he then was ) has observed--

'Under the Hindu, law the father is the natural guardian of his children and his children must be deemed to reside where he resides. where a man has no permanent abode, he must be deemed to reside where he actually resides. It follows therefore that his children must also b deemed to reside at the place where he happens to reside.

Thus, where Hindu minor has been living in Amraoti continuously for over a year with her father, she must be deemed to reside ordinarily in Amraotim, though before going to Amraoti to live with her father after he found employment there, she lived for the greater part of her short life in Nagpur first with her parents and thereafter with her mother. during the period, the minor her spent with her mother, In Nagpur, after the departure of her father, she (the minor) the be deemed to be in charge of the mother on behalf of the father who is her natural guardian. So. Nagpur cannot be said to be the place of her legal residence'.

With respect, I may say that we are not concerned din deciding the question of jurisdiction as regards the legal residence. We are concerned with the question regarding the ordinary residence of the minor. Apart from that, this view runs counter to the view taken by the Bombay High Court prior to the date of the bifurcation and consequently those decisions are binding on me. In my opinion, these Bombay decision also lay down the correct position of law. A Division Bench of the Saurashtra High Court in Bai Arunkumari v. Natwarisingh, AIR 1954 Sau 152 has taken a similar view. It is observed therein that--

'there is no presumption that the minor is deemed to reside at the place where his natural guardian an resides, and the place of residence of the natural guardian is not the determining factor in deciding the question of Court jurisdiction, except as one of the circumstances to be considered in determining the ordinarily place or residence of the minor. Even if such presumption can be raised, it is a weak presumption liable to be easily rebutted by proof of other circumstances. the question of residence of the minor is thus a question of fact with must be determined in the light of circumstances of each case'.

Where however the averment sin the application made it clearly that the applicant himself accepted the position that the minor's ordinary pace of residence on the date of the application was at B and that the application was made at S on the ground of his own residence and on the ground that 10 months before the application the minor had resided with him, it was held that 'the application filed at S must fail on the ground of want of jurisdiction and it was not necessary to remand the case for recording evidence about the actual place of the minor's residence'.

In the instant case,. similar is the position. Admittedly, according to the father, the minor children are residing at mother's parents' pace since 31st October 1967. The application has been filed on 6th January, 1970. It means that on the date of the application the minor children were living for a period of over two years at village Baghel. It is significant to note so this stage that Ashok, the eldest child, was born on 22nd July 1963. The marriage between Virbala and Harichand had taken place on 18th February, 1961. Sharmishta was born on the 28th February, 1966 and Mahendra was born on 15th May, 1968. Mahendra has never resided at his father's place. He has all along lived at village Vaghel. Even before Virbala left her husband's home, even according to her husband's versions. Virbala more often resided at her parents' place. The eldest child, who has reached the age of schooling, is studying at the school at Vaghel. Taking into consideration all the relevant circumstances and fact brought on record, there is not escape from the conclusion that the minors were residing ordinarily and are residing ordinarily at village Vaghel. The leaned trail Judge was, therefore, in error in holding that the Palanpur District Court had jurisdiction to entertain this application. A single Judge of the Allahabad High Court in Jamna Prasad v. Mst. Panna, 0065/1960 : AIR1960All285 has taken a similar view.

It is observed by Bhargava, J:--

'The words' ordinarily resident have a different meaning than 'residence at the time of the application'. Both may be identical or may be different. That would depend on the fact of each particular case. to interpret the words 'where the minor ordinarily resides' to mean 'where a the minor actually resides at the time of the application ' may in some case amount to rendering nugatory all the provisions of the Guardians and Wards Act. It may be that persons who have absolutely on right may remove the minor forcibly and keep him at a distant place, when the application is made, where the minor was ordinarily residing, and objection may be taken that the application was not entertainable. The entire circumstances, the intention with which the minor had been removed, the person with whom the minor has been living and other relevant factors a have to be taken into consideration'.

In the instant case, the minors are residing with none else but with their mother. when the mother left her husband's home, two of the elder minors were of very tender age. The third minor has been born even after the mother left her husband's home. In Harbans Singh v. Vidya Wanti, AIR 1960 Pun 372, dua, J., (as he then was ) haws taken a similar view observing--

'A question whether or not a minor ordinarily reside within the jurisdiction of a Court, has to be decided on the facts and circumstances of each case'.

A Division Bench of the Assam High Court in Mst. Firoza Begum v. Akhtraddin Laskar, AIR 1963 Assam 1993, has also taken a similar view. It is observed therein--

'the requirement of Section 9 of ordinary residence was satisfied in the case of Silchar. The minor had been residing at Silchar for a substantial period of time prior to the application made by the father in the District Court at Gauhati,. In the circumstances, the only court which could be said to have jurisdiction according to the language of Section 9 of the Act was the District Court at Silchar'.

In Paragraph 4 at page 194, it is observed:--

'It is contended by Mr. Ghose that the expression ordinarily resides' does not mean casual or factual residence of the minors at a the time of the application being made, and that normally the residence of the minor should taken as the place where the legal guardian is residing. He placed reliance in the cases of Jahala Harpalsingh v. Bai Arunkunvar, AIR 1954 Sau 13; Chandra Kishore v. Smt Hemlata Gupta, : AIR1955All611 ; and Sarada Nayar v. Vayankara Amma. : AIR1957Ker158 .'

After referring to these decisions in paragraph 5, in is observed--

'In the instant case, it is not disputed that the minors left with there mother to Silchar in the Year 1957, and that the minors had been living with their mother ever since in Silchar. The application filed by the father in the District Court at Gauhati was only made on 21-3-1960, as already pointed out. It is, therefore, clear that the minors had been residing at Silchar for a period of about three years prior to the making of the application. In the circumstances, we feel that the requirement of Section 9 of the ordinary residence is satisfied in the case of Silchar, and it can be held without any difficulty that the minors had been residing Silchar for a substantial period of time prior to the application made by the father in the District Court at Gauhati. It is not the case the father of the minor that the were taken away to Silchar for the purpose of the avoiding the jurisdiction of the District Court at Gauhati because the application in the District Court at Gauhati was made, as already pointed out, about three years after the minors had left for Silchar'.

The present case with which we are concerned practically stands on the same footing. Mr. Majmudar invited my attention to the decision of the Kerala High Court in : AIR1957Ker158 . The relevant observations are--

'The expression 'where the minor ordinarily resides' appears to have been deliberately used in Section 4(5)(b)(ii), to exclude places to which the minor may be removed at or about the time of the filing of the application for the enforcement of the guardianship and custody of the minor. The phrase 'ordinarily resides' indicates ordinary residence even at the time of the presentation of the application under Section 25. The emphasis is undoubtedly on the minor's ordinary pace of residence. Such a place has to be determined by finding out as to where the minor was ordinarily residing and where such residence would have continued but for the recent removal of the minor to a different place.

Where the application is filed soon after such removal, the place of such removal will be ignored for the purpose of determining the jurisdiction of the Court of the entrain the application and in spite of such removal the minor will be deemed to have its exercise at the pace where it was ordinarily residing'.

The present case is not a case of that type. After the mother left her husband's home, the minors are residing at village Vaghel. Mr. Majumdar also invited my attention to the decision of Mukerji, J., in : AIR1955All611 . It is observed therein--

'Under the Hindu law, the father is the natural guardian and the referential guardian of the minor children. therefore when there is a contest between the mother and the father in regard to what the residence of the minor children is going to be, then the mother word cannot be accepted in preference to the word of the father.

thus where the evidence shows that certain minors had an ancestral home in Meerut, that they had been there with their father and mother during the better part of the short life and that they had been taken by their mother to Dehar Dun for only a very brief span of a few hours. it was held that the ordinary residence of the minors was Meerut and that the Dehar Dun court had no jurisdiction to entertain the application of the mother for the guardianship of her minor sons'.

In the instance case, the position is quire different. It appears that most of the High Court have taken the view that there is not such presumption, as has been canvassed by Mr. Majmudar. It is a question of fact. The court has to decide the question of ordinary residence of minors on taking into consideration all the relevant circumstances. I, therefore hold that the District Court at Palanpur had not jurisdiction to entertain and her a the petitioner filed by the present opponent of the custody of the minor children. the order passed by the trial Court is, therefore, with jurisdiction. It is therefore, required to be set aside. The present proceeding being a miscellaneous proceeding, Section 141 of the civil Procedure Code can be pressed into service and an order can be passed for directing the trail Court to return the application, Ex. 1 of Civil Miscellaneous Application No. 1 of the 1971, for presenting it to the proper Court. The appeal is allowed and order passed by the Trail Court dated 3rd September, 1971, is set aside on the ground that the trial Court had not jurisdiction to entertain and hear this petition. The trial court is defected to return Ex. 1 of the Civil Miscellaneous Application No. 1 of 1971 (Original No. 1 of 1970) to the respondent (original petitioner) for presenting it to the proper Court. Mr. Bhat fairly states that, in the circumstances of the case, the Court may pass an order that each party should be ordered to bear its own costs throughout. Each party is ordered to bear its own costs throughout. Cross objections do not survive in view of my finding regarding jurisdiction. They, therefore, stand dismissed with no order as to costs. Civil Application No. 2408 of 1971 does not survive. It stand disposed of with no order as to costs.

10th July, 1972.

3-4. Mr. Mahmudar, appearing for the respondent, before the oral judgment, date 20th June, 1970. was signed by me, requested to the Court that he had failed to point out to the Court the provisions of the Section 21 of the Civil Procedure Code (which will be hereinafter referred to as 'the code') which in terms precludes the appellate or revisions Court to entertain objection as to the place of suing unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice. In the instant, case, admittedly, the appellants had taken up such objection regarding the jurisdiction of the District Court, Bahaskantha at Palanpur at the earliest possible opportunity. It was therefore contented by Mr. Majumdar that the question that would arise for consideration was whether there had been consequent failure of justice. In his submission, the second condition is not satisfied and eventually this court cannot interfere with the order passed by the learned District Judge in Civil Miscellaneous Application No. 1 of 1971. The matter was, therefore, kept for re-hearing on the point.

5. Mr. Majmudar has submitted that Section 141 of the code indicates that the procedure provided in the Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil jurisdiction. Mr. Majmudar has submitted that the proceeding in the question could be said to be a proceeding in the Court of Civil jurisdiction. It was in the nature of original proceeding. Provisions of the Section 141 of the Code could , therefore, be pressed into service, In support of his argument he invited my attention to the decision of the Bombay High Court in Re Bai Jamnabai, (1912) ILR 36 Bom 20. At page 26 and 27, the relevant observations made are:

'As the matter is one of the very great importance in the administration of the Court's jurisdiction in relation to infants, I think it desirable to say that I have not doubt that the Court would be have had power in this case to appoint a receiver had it considered it necessary or proper to do so'.

After referring to the English practice, it is further observed:

' Turning to the Code, very wide power are given to the court as regards ad the appointment of a receiver. Section 141 of the code provides that the procedure laid down in the code in regard to suit should be followed as far as it can be made applicable in all proceeding of an Court of civil Jurisdiction; and having regard to the terms of Section 12 of the Guardians and Wards Act that the Code may make such order for the protection of the person and property of the minor as it think proper I am of the opinion that Section 141 of the code made applicable in a proceeding on a petition under that Act,. the section and orders dealing with the appointment of the receivers'.

In view of this decision it cannot be gainsaid that the provisions of Section 141 of the code will have application to a proceeding under the Guardians and Wards Act, 1890 (which will be hereinafter referred to as 'the Act').

6. The important question for consideration is that view of the scheme of the said Act, the Court could be justified in invoking the provisions of Section 21 of the Code. Mr. Majmudar has invited my attention to the decision of different High Court and a decision of the supreme Court in support of the is argument that the respondent could get the benefit of Section 21 of the Code. A Division Bench of the Mysore High Court in Om Prakash Dhawan v. Santosh Kumari, AIR 1965 Mys 110, while dealing with the provisions of the Hindu Marriage Act, 1955, has observed at page 112:

'Now section 13(1)(viii) of the Hindu Marriage Act creates a right to a decree of the divorce in case where there has been non resumption of the cohabitation for a space of two year and more after the passing of a decree for judicial separation. We cannot accede to the view suggested by Mr. Nazereth that we should regard the earlier decree for judicial separation as a nullity, since, according to the him, there was neither the solemnisation of the marriage nor the requirement residence of the spouses within the jurisdiction of the District Judge. The argument overlooks the essential distinction between absence of territorial jurisdiction and absence of inherent jurisdiction which was explained by the Supreme Court in Kiran Singh v. Chaman Paswan, : [1955]1SCR117 (to which my attention was also drawn by Mr. Majmudar) thus:

With reference to the objection relating to territorial jurisdiction, Section 21 of the Civil Procedure Code enact that on objection to the place of suing should be allowed by an appellate revisional Court, unless, there was a consequent failure of justice.

The policy underlying Section 21 of and 99, C.P.C. and Section 11 of the Suits Valuation Act is same, namely, that when a case had been tried by a Court on the merits and judgment rendered,. it should not be liable to be reversed purely on teaching ground, unless it had resulted in the failure of justice, and the policy of the legislature has been to treat objection to the jurisdiction and both territorially and pecuniary as technical and not open to consideration by a appellant Court, unless the has been a prejudice on the merits........'

It is observed in para 11:

'Although Mr. Nazarath maintained as argument on the country, it seems to us that the objection on the jurisdiction now advanced on behaved of the wife in the context of the either application for judicial separation is an objection of a technician; nature amounting as it plainly does to an objection to territorial jurisdiction. If an appellant Court could not have listened to that objection after an appeal had been preferred from a decree for judicial separation made by the district court on the earlier occasion, it should follow that we should not listen to that objection in those proceeding in which the application was for as decree of divorce on the foundation of the earlier decree for judicial separation'.

7-8. In Abdul Azeerm v. Fahimunnisa Begum, AIR 1969 Mus 226, at p. 230, a Division Bench of the Mysore High Court has taken the same view when dealing with the provisions of Dissolution of Muslim Marriages Act 1939. The relevant observation made in para 32 are:

'The only other submission made by Mr. Kagalkar was that the suit should be have been instituted in the Munisiff's Court and not in the Court of the District Judge. But as Mr. Suresh Joshi has been pointed out to us, this objection to jurisdiction was reside very last and it was raised only when the District Judge was called upon the to make a decree on the application of the wife after the finding had been recorded on impotence. Mr. Joshi, in our opinion, is right in contending that in that situation, Section 21 of the Code of Civil procedure stand attracted. We are satisfied in our minds that the assumption of jurisdiction by the district Judge, even if he did not possess it. did not result in a failure of justice. We are of the opinion that we should overrule the objection as to want of jurisdiction'.

In Kishori Lal v. Firm Lajja Ram, Ram Sarup. AIR 1951 Punj 275, Haranam Singh , J., has observed:

'Under Section 21 even though the objection as to place of suing has been raised at the earliest possible opportunity or wrongly disallowed the judgment will not be disturbed unless the trial in the wrong court had led to a failure of justice. In order to as certain whether the has been a failure for justice the appellant court must go into the merits o the case of the from an opinion upon the justice or otherwise of decision of the original Court'.

Mr. Majmudar haws frankly stated that he could not find out any decision where in a proceeding under the Act it was held that Section 21 of the Code was attracted. Mr. N. H. Bhatt, appearing for the appellants, has urged that in all the decisions, to which reference has been made earlier, order have been set aside on the ground that the lower Court had not jurisdiction to entertain the proceeding under the Act. He admits that tit was true that tin none of the those cases including the decision of the Bombay High Court to which I have made reference on argument was advanced on the basis of Section 21 of the Code. Mr. Bhatt submit that the obvious reason was that such an argument was untenable and that was the reason why on such argument was advanced. He has urged that the legislature,. in is wisdom, while enacting this special law, had given jurisdiction to a particular Court depending upon the place where the minor ordinarily resides. Jurisdiction to a particular Court was given not on the basis of the provisions of Section 16 to 20 of the code. Mr. Bhatt submits that there was good reason for making such special provisions in the Special Act. The reason was that the Court had to supervice the administration of the estate of the infants. Several statutory duties were cast upon the court. With the objection in mind, the Court which could effectively deal with such problems, was invested with the jurisdiction.

9. Mr. Bhatt has invited may attention to the decision of the Division Bench of the Bombay High court in Rev. Robert Ward v. Vlachand Umedchand, (1909) 11 Bom LR 1137. It was held by the Bombay High Court that the Ahmedabed Court had no jurisdiction to appoint guardian of the minor, for the minor was living in Baroda and had no other place of residence; and therefore, Baroda was the place where he ordinarily resided within the meaning the Section 9 of the Act. In my opinion, this decision cannot be of much use in determining he question of the posed before me. In that case, the place where the minor was found to be originality residing was Baroda, which was then a native state. In the instant case, the District Court at Mehasan and the District Court,. Banaskantha at Palanpur, both are the Courts working within the limits of the Gujarat State. It is true that at P. 1143, in the last but one, part, it is observed:

'It is argued on behalf of the respondent (with what correctness we do not know) that the Mission House in Baroda where the minor is living is in British Cantonment and is with the jurisdiction of the Judicial District of Broach. It may be so, but, even if it so, that does not give jurisdiction to the District Judge of Ahmedabed'.

The order of the district Judge was, therefore, set aside, It does not appears that any argument was advanced before the Division Bench of the Bombay High Court that tin view of the provisions of Section 21 of the Code, even if the District Court at Broach had jurisdiction and the Ahmedabed District Court had not jurisdiction, the order passed by the district court at Ahmedabad cannot be set aside unless it had occasioned a failure of justice.

10. Section 3(b) of ht Hindu Marriage Act, 1955, defines 'District Court' as under:

' 'District Court' means in any area for which there is a city civil Court that court, an din any other area the principal civil Court of original jurisdiction, and include and other Civil Court which may be specified by the State Government, by notification in the Official Gazette, as the having jurisdiction in respect of matter dealt with in this the Act'.

Section 19 of the Hindu Marriage Act, 1955, reads:

'Even petitioner under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction the marriage was solemnized or the husband and wife reside or last resided together'.

A mere perusal of the is section indicates that the jurisdiction has been vested for entertaining application has under the said act in the Court referred to therein. Jurisdiction given to those Court was depending upon several factors referred to therein. It upon the further signification to note that there is specific Special 21 which reads:

'Subject to the other provision contained in this Act and to such rules as the High Court may make in this behalf, all proceeding under this Act shall be regulated, as far as may be, by the code of the Civil Procedure, 1908'.

In the Act with which we are concerned, there is no such section like Section 21 of the Hindu Marriage Act,. 1955. In Section 4(4) of the Act. District Court' has been defined as under:

' 'district Court' has the meaning assigned to that expression in the Code of Civil Procedure, and includes a High Court in the exercise of its ordinary original civil jurisdiction'.

In Section 4(5) the phrase 'the court' has been defined as under:

' the court means-- (a) the District Court having jurisdiction to entertain in the application under this Act for the order appointing or declaring a person to be a guardian'.

A plain reading of this sub-section (5) of section 4 of he Act, indicate that the Court has been given a special meaning I means the District Court which has jurisdiction to entertain an application under this Act for a order appointing a or decussating a person to a be guardian. It is therefore, evident that when a question is posed, where a particular Code is the Court within the meaning of phase 'the Court' referred to in the provisions of this Act, that question has to be answered by posing a question whether the Court would have jurisdiction to entertain an application under that Act for an order appointing or declaring a person to be a guardian.

11. Clause (b) of it reads:

'where a guardian has been appointed declare in pursuance of any such application--

(i) The Court which, or the Court of the Officer who, appointed or declared the guardian or is under this Act deemed to have appointed or declared the guardian; or

(ii) in any matter relating to the person of the ward the District Court that having jurisdiction in the place where the ward for the time being ordinarily readies; or

(c) in respect of any proceeding transferred under Section 4-A, the Court of the officer to whom such proceeding has been transferred:.

It is thus evident that to meet with all the eventualities, special provisions have been made in this section to indicate which Court would have jurisdiction, taking into consideration the aforesaid factors. in clauses (i) and (ii) even deeming provisions have been introduce. Furthermore, Section 4(5)(b)(ii) indicate that when the question relates to the person of the ward, that District Court, at in the place where the ward for the time being ordinarily resides will have the jurisdiction.

12. In view of certain provisions in the Section 4-A for transferring the matters, the legislature by incorporating the provision in clause (b), has indicated the court of officer to whom such proceeding has been transferred is include within the meaning of the word 'Court' . It is significant to not that the that the High court has been given power to confer jurisdiction by general or special order on any officer exercising original civil jurisdiction subordinate to a District Court, or authorise the Judge of the any District court or authorise the judge to empower any such officer subordinate to him to the dispose of the any proceeding under this Act transferred to such officer under the provisions of this section (section 4-A(1) of the Act) it is significant to not ether the legislature has advisedly made these provisions for transpire and the under and the transfer is not intended to be name under the provisions of Section 24 of the code.

13. Sub-section (2) of Section 4-A of the Act further empowers the judge of A District Court of by an order in writing to transfer at any stage any proceeding under this Act pending in this Court of disposal to any officer subordinate to him empowered under Sub-section (1) of Section 4-A of the Act Similarly, provision is made by sub-section (3) of it to transfer such proceeding from such officer to his own court. Sub-section (4)of it reads:

'When any proceeding are transferred under this section in any case in which a guardian has been appointed or declared, the Judge of the District Court may, by order in writing, declare that the Court at the judge or officer to whom they are transferred shall, for the or any of the purposes of this Act, be deemed to be the Court which appointed or declared the guardian'.

In may be opinion, such specific provisions have to be made, as in view of the definition of the phrase 'the Court' jurisdiction is restricted to the Court or the Officer as specified in Section 4(5) of the Act..

14. Section 7 empower the Court to appoint the guardian a of the person or the minor or his property to both or to declare a person to be such a guardian. Sub-section (2) of it indicates that tan order passed under that section shall imply the removal of any guardian who has no been appointed by will be other instrument or appointed or declared by the Court.

15. Sub-section (3) of the Section 7 of the Act indicates:

'Where a guardian has been appointed by will not other instrument or appointed or declared by the court an order under this section appointing or dealing another person to the guarding in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have cased under the provisions of this Act'.

Another significant fact to be borne in mind is that amongst the persons entitled to apply for such order, not only the persons desirous of being, or claiming to be the guardian of the minor, or any relative or friend of the minor, are induced but even the collector of the District of other local area within which the minor ordinary resides, or in which the has property or the collector having authority white respect to the class the which the minor belongs, has been given powers to initiate such proceedings. it is in the section following these sections that the provisions have been made for indicating which court will have jurisdiction to entertain such application.

16. Section 9(1) of the Act in terms states.

'(1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District court having jurisdiction in the place where the minor ordinarily resides'.

It is therefore, evident that tin view of this wordings of section 9(1) if the application is in respect of the guardianship of the person the minor, it is to be made to the Distinct Court having jurisdiction in the place where the minor ordinary resides and to the other Court.

17. Sub-section (2) of it reads;

'(2) If the application is with respect to the guardianship of the property of the minor, it may be made either to the district Court a having jurisdiction in the place where the minor ordinary resides or to a District Court having jurisdiction in a place where he has property'.

It were means that tit the application is with respect to the guardianship of the property of the minor, it may be made to any one of the Court referred to therein.

18. Another significant fact to be borne in mind is that in view of the aforesaid sub-section (2) of Section 9 of the Act, there was a possibility of several Court having jurisdiction to entrain the application with respect to the guardianship of the property of the minor. It may be because the minor may be ordinarily residing in the jurisdiction of one District Court while the may have property in the jurisdiction of the another District Court. to meet with that eventuality, the District Court has been given power to safeguard the interest of the minor by sub-section 93). That sub-section (3) reads:

'(3) If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinary resides, the Court may return the application if the it opinion the application would be disposed the more justly or convernitiely by the any other District Court heaving jurisdiction'.

It is therefore, evident that the in such a case, the Court has to return the application, if in its opinion, the application could be disposed of more justly or conveniently by the other District Court having jurisdiction. The obvious reason is that the legislature intended that such application should be entertained by the Court which could effectively deal with it, and the property of the infant could be property administered.

19. Section 10 of the Act deal with the particulars to be given in such a application. Section 11 death with procedure on admission of a application . Section 12 deals with power to the make interlocutory order for production of minor and in term protection of person and property. It is significant to note that even in Section 12 of the Act, the words used are, 'the Court'. The Court has been empowered to direct the person, it any, having the custody of the minor to produce hi or cause him to be produce at such place and time. The meaning of the word the court used in this section will have to be given as contemplated by Section 4(5) of the Act. If the minor of the ordinarily residing within he jurisdiction of the Court, that court could effectively deal with such a situate hand taken necessary steps contemplated under Section 12. Section 13 of the Act deals with hearing of evidence before making to the order. Section 14, in my opinion, throws a flood of light on the question posed before me. I treads:

'(1) If proceedings for the appointment of declaration of a guardian of a minor of those taken in more Courts than on, each of those Courts shall, on being appraised of the proceedings it he other court or courts, stay the proceeding before itself.

(2) If the Court are both or all subordinate to the same High Court they shall report the case to the High Court, and the High Court shall determine in which of the appointment or declaration of a guardian of the minor shall be had.

(3) In any other case in which proceeding are stayed under section (1), the Court shall report the case to, and be guided by such orders as they may received from their respective State Governments'.

The incorporation of such provisions in this section indicates that the legislature intended to deal with all such eventualities and that appears to be the reasons why they have made all these specific provisions in this special Act.

20. In Section 25 of the Act, which deal with the custody of the minor, if a ward leaves or is removed from the custody are of a guardian of his person, the words used are, 'the Court' I have already held that it is the District Court at Mehasana which would be the court referred to therein as the minor in question ordinarily resides within he jurisdiction of that Court. It is significant to note that this section even empowers the Court not only to make an order for the return of the ward but also for the purpose of the enforcing the order to cause the ward to be arrested and to be delivered in to the custody of the guardian.

21. Sub-section (2) of the Section 25 of the Act indicate that for the purpose of the arresting the ward, the court may exercise the power conferred on the Magistrate of the First Class by Section 100 of the code of he Criminal Procedure, 1882.

22 Section 26 of the Act deals with removal of ward from jurisdiction . Fro such removal, court, permission has to be taken. Section 27 deals with duties and guardian of the property. Section 31 deals with practice with respect to permitting transfers under Section 29. Section 32 deals with variation of powers of guardian of property appointed or declared by the Court. Section 33 deals with right of guardian so appointed or declared to apply to the Court for opinion on management of the property of ward. Section 34 deals with obligations of guardian of property appointment or declare by the Court. Section 39 empowers the Court to remove the guardians appointed, or declared by the Court, in case the case falls with in the any of clause (a) to (f) refereed to therein. Section 40 deals with discharge of guardian. The guardian has to be discharge by the court Section 42 deals with the power of the Court to appoint successor to the guardian in cause specified therein. Section 43 empowers the Court to pass orders of regulating the conduct to proceedings of guardians and enforcement of those orders. Section 46 empowers the Court to call the upon the Collector or upon the any Court subordinate to it, for a report on any matter arising in any proceeding under the Act Section 47 enumerates the orders which are made appealable.

Section 48 of the Act states :

'Save as provided by the las foregoing section and by Section 622 (Section 115 of the Civil Procedure Code, 1908) of the Civil Procedure Code, an order made under this Act shall be final, and shall not be liable to be contested by suits or otherwise.'

These are the material sections which give us some indication regarding the mind of the legislature. Looking to the scheme of the Act and the object of this Act, in my opinion, such a proceeding can be entertained by the Court referred to, in the relevant provisions of this Act. If the provisions of Section 21 of the Code are invoked, I am of the opinion, the real object of this Act which is to deal with the minors and their property effectively by that Court will be frustrated to a large extent. Looking to the scheme of the Act, therefore, in my opinion, the provisions of Section 21 of the Code cannot be pressed into service.

23. It is significant to note that Section 141 of the Code clearly states that the procedure provided in this Code in regard to suits has to be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. In view of the specific provisions in the Special Act, in my opinion, provisions of Section 21 of the Code cannot be made applicable. It is significant to note that the Court dealing with such applications under the Act does not become functus officio on mere appointment of a person or declaration of a guardian of the person of the minor or his property, or on making an order as to the custody. The Court has to take follow-up actions and perform several obligations referred to in the Act. I, therefore, reject this submission made on behalf of the respondent by Mr. Majumdar. This submission, therefore, fails.

24. The order passed on 20th June, 1972, therefore, does not require to be changed or modified in any manner.

25. Order accordingly.


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