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Tilak Raj Kapoor Vs. Smt. Asha Kapoor - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Appeal No. 108 of 1978
Judge
Reported inAIR1979Raj128
ActsGuardians and Wards Act, 1890 - Sections 4(5), 9(1) and 25(1)
AppellantTilak Raj Kapoor
RespondentSmt. Asha Kapoor
Advocates: R.M. Bhansali, Adv.
DispositionAppeal dismissed
Cases ReferredKeshawanand Gupta v. Afroza Begum
Excerpt:
- .....of the minor, it shall be made to the district court having jurisdiction in the place where the minor ordinarily resides. (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 having jurisdiction in the place where the minor ordinarily resides or to a district court having jurisdiction in a place where he has property.' it is, therefore, clear that an application with respect to the guardianship of the person of the minor has to be made to the district court having jurisdiction in the place where the minor 'ordinarily resides'. the test, therefore, which the legislature has provided is that the court which has jurisdiction for hearing an application under section 25(1) of the act is the court where the.....
Judgment:

S.K. Mal Lodha, J.

1. This appeal under Section 47(b) of the Guardians and Wards Act, 1890 (No. VIII of 1890) (hereinafter referred to as 'the Act') is directed against the order of the learned District Judge, Jodhpur dated September 18, 1978 by which she dismissed his application under Section 25 of the Act. It may be stated here that the learned counsel for the father (applicant before the District Judge) stated before her that it is not necessary to return the application for presentation to the proper court as another application will be submitted in the court at Bharatpur if the father-applicant so likes. The appellant submitted an application under Section 25 of the Act against the respondent for return of the minor son of the parties who had completed seven years in March 1978, to his custody. In para 4 of the application, it was mentioned that the minor, at the time of its presentation, was living with his mother at Bharatpur. It was also admitted by the learned counsel for the father-applicant before the learned District Judge that after 1974, the minor has resided and has been residing at Bharatpur and that for two months, he remained at the house of the parents of the mother. This application under Section 25 of the Act was submitted in the court at Jodhpur. An objection was raised that in view of the averments made by the father-applicant in the application, it is clear that the minor 'ordinarily resides' within the jurisdiction of the District Judge at Bharatpur, and therefore, the learned District Judge at Jodhpur cannot entertain and decide the application. This objection prevailed with the learned District Judge, Jodhpur and she held that the Court of the District Judge at Jodhpur has no jurisdiction to entertain the application. In these circumstances, she dismissed the application of the father-applicant by her order dated September 18, 1978. The father-applicant has preferred this appeal.

2. I have heard the learned counsel for the appellant at some length. His only contention is that the principle where the minor 'ordinarily resides' which is mentioned in Section 9 of the Act, is not applicable to the applications which are filed under Section 25 of the Act. I have given my most anxious and thoughtful consideration to the contention raised and have reached the conclusion that it is devoid of force. I may reproduce here Section 25(1) of the Act, which is material for the disposal of this appeal,--

'25 (1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of the guardian, may make an order for his return............'

Section 4(5) of the Act defines 'the Court' to mean,--

'(a) the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian;'

Section 25(1) uses the expression 'the Court'. This expression has been defined in Section 4(5)(a) to mean the District Court having jurisdiction to entertain an application under the Act for an order appointing or declaring a person to be a guardian. Section 9 deals with the appointment of guardian of the person and property of the minor.Sub-sections (1) and (2) of Section 9 of the Act run as under,--

'(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.

(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 having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property.'

It is, therefore, clear that an application with respect to the guardianship of the person of the minor has to be made to the District Court having jurisdiction in the place where the minor 'ordinarily resides'. The test, therefore, which the Legislature has provided is that the court which has jurisdiction for hearing an application under Section 25(1) of the Act is the Court where the minor ordinarily resides and with whom the minor must be deemed to have been in constructive custody. It is, therefore, clear 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 Ba Thein Maung v. Ma Than Kin, AIR 1929 Rang 129 (1), it was observed as under:--

'An application under Section 25 accordingly must be made to the court where the minor ordinarily resides.'

The matter was considered by a Division Bench of the Bombay High Court in Chimanlal Ganpat v. Rajaram Maganchand Oswal. AIR 1937 Bom 158, wherein it was observed as follows,--

'...in order to give the Court jurisdiction under Section 25, the minor must be 'ordinarily resident' within the local limits of the jurisdiction. That is provided, so far as the appointment of a guardian is concerned, by Section 9(1), and as regards Section 25, the word 'Court' is mentioned there and 'Court' is denned in Section 4(5) as the District Court having jurisdiction in the place where the ward for the tune being ordinarily resides......'

Sections 25(1), 9(1) and 4(5)(a) of the Act also came up for consideration before a Division Bench of the Gujarat High Court in Shah Harichand Ratanchand v. Virbbal (AIR 1975 Guj 150).After examining the various authorities, it was observed (at p. 152):--

'Section 25(1), however, has categorically used the expression 'the Court' which hag been statutorily defined in Section 4(5)(a) to mean the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian. Under Section 9(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. Therefore, the legislature has statutorily defined the Court for the purposes of Section 25(1) as the District Court having jurisdiction in the place where the minor ordinarily resides. Therefore, the legislative test of the Court which has jurisdiction in this matter is the Court where the minor ordinarily resides and not the Court where the father resides and with whom the minor must be deemed to have been in constructive custody......'

This Court, in Keshawanand Gupta v. Afroza Begum, AIR 1958 Raj 221, held as under, (at p. 222)-

'......Thus, reading Sections 4(5), 9and 25 together, it will be apparent that the jurisdiction under the Act is in the District Court, whether the application is under Section 0 or Section 25 and the minor must be ordinarily resident in a place over which the District Court has jurisdiction. The jurisdiction, therefore, of the Court under the Act is circumscribed by the condition that the minor must be ordinarily resident within the jurisdiction of the District Court concerned.

Where the minor is not ordinarily resident within the jurisdiction of the District Court concerned, the District Court will have no jurisdiction to proceed under the Act......'

It follows from the cases referred to above that where the minor is not ordinarily resident within the jurisdiction of the District Court concerned, it will have no jurisdiction to proceed under the Act. It is, therefore, clear that the Court within whose local limits of jurisdiction the minor is ordinarily resident has jurisdiction to entertain the application under Section 25 of the Act. In this case, as is clear from the averments made in the application under Section 25 that since 1974 and at the time of the presentation of theapplication, the minor was residing at Bharatpur with his mother. For the aforesaid reasons, the judgment of the learned District Judge is correct in law.

3. The result is, that there is no merit in this appeal and it is, accordingly, rejected summarily.


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