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Sarpat Singh and anr. Vs. Rai Budh Singh Dudheria Bahadur - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in41Ind.Cas.240
AppellantSarpat Singh and anr.
RespondentRai Budh Singh Dudheria Bahadur
Excerpt:
civil procedure code (act v of 1908,) section 115 - revision--district judge ordering payment of allowance to guardian of person of minor. - .....to the certificate of the civil surgeon on the subject of the condition of the health of the minor's mother, i am unable for the present to make any order for her to remove into the house that has been provided for the minor's use.' the matter, if it rested there, might have occasioned some difficulty. speaking for myself, i am not at all sure that the judge made that order permanently superseding the order of the 8th may 1912. i think it was simply meant prima facie as a temporary measure during the then exciting illness of the minor's mother. but the subsequent orders made by the district judge show that the allowance was to be paid to the minor's mother notwithstanding her failures to reside in the residence provided for her use. there was an order when the mother was living at.....
Judgment:

Fletcher, J.

1. This is a Rulecalling upon the opposite party to show cause why the order complained of in the petition should not be set aside. The order complained of was passed on an application which is stated in the order-sheet to be an application for review of judgment. As a master of fact, it was not such. It was a renewal of an application that had been dismissed in May 1916. The application was made for a direction upon the guardian of the property of a minor to make certain payments that had been directed to be made by the District Judge, the amount being Rs. 300 per mensem, for the minor's maintenance. The question turned upon the consideration of a condition that the District Judge had imposed by an order dated the 8th May 1912, the District Judge having by that order directed that no payment should be made to the guardian of the person of the minor, that is, the mother, until she went with the infant to live in a house provided for the residence of the infant. Then on the 22nd May 1912, an order was made that is said to have superseded the order of the 8th May of the same year, by which the District Judge is said to have set aside the condition as to the removal of the guardian with the infant to the house provided for their residence. The words of the order are these:---'Having regard to the certificate of the Civil Surgeon on the subject of the condition of the health of the minor's mother, I am unable for the present to make any order for her to remove into the house that has been provided for the minor's use.' The matter, if it rested there, might have occasioned some difficulty. Speaking for myself, I am not at all sure that the Judge made that order permanently superseding the order of the 8th May 1912. I think it was simply meant prima facie as a temporary measure during the then exciting illness of the minor's mother. But the subsequent orders made by the District Judge show that the allowance was to be paid to the minor's mother notwithstanding her failures to reside in the residence provided for her use. There was an order when the mother was living at Madhopur---although apparently the Judge did not view with favour her residence at that place which clearly recognized that Rs. 300 a month was to be paid to the mother. The mother is now dead. The District Judge dismissed the application that was made to him, on the ground that the mother of the infant never complied with the condition imposed by the order of the 8th May 1912. This Rule has been obtained against that order

2. It has been urged that this Court cannot interfere under Section 115, Code of Civil Procedure. I must confess I am considerably impressed with that argument. I feel considerable hesitation in interfering in a case of this nature. However, the other learned Judge on the Bench does not feel that difficulty and I do not think that, in a case like this where all the merits are on the side of the guardian who maintained the infant, I should press my doubt so far as to dissent from the order that is going to be made. The amount of the arrears of maintenance claimed stands in two parts. First of all, the part that accrued due on the date of the order of the learned District Judge, that is, the 22nd April 1912. As regards that, it could not matter whether the mother resided at the house provided for her or in any other place. All that money has been spent and laid out for the benefit of the infant and the condition as to the residence was imposed as regards the future payment, and not as regards the amount that became due for past years. The learned Judge obviously ought not to have deprived the guardian of the person of the minor of that money. The other part, that is, as regards the arrears that accrued due after that order of the 22nd April 1912 stands on a different footing. On the whole, I am not prepared to say that the learned Judge by his order of the 8th May 1912, did mean that the payment of the allowance should be made only in the event of the guardian of the person of the minor removing to the house that had been provided for the residence of the minor. The subsequent orders passed by the learned District Judge seem to recognize the fact that the mother and guardian of the person of the minor was entitled to receive an allowance of Rs. 300 a month without residing at the house that had been provided for their use. On the whole, I think the order of the learned District Judge ought, to be set aside and, with regard to the allowance of Rs. 300 per mensem that accrued due prior to the 22nd April 1912, the petitioner is entitled to receive it and, with regard to the allowance subsequent to that date, he is entitled to receive it upon satisfying the learned Judge that the minor was suitably and properly maintained by the mother during the period between that date and up to her death. The Rule is, therefore, made absolute on these terms with costs, one gold mohur.

Smither, J.

3. I agree.


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