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Sydney Hugh Mcsweeney Vs. Margaret Arbuthnot - Court Judgment

LegalCrystal Citation
Subject Civil
CourtKolkata
Decided On
Reported inAIR1931Cal563
AppellantSydney Hugh Mcsweeney
RespondentMargaret Arbuthnot
Cases ReferredAshalata Roy v. Society
Excerpt:
- .....out of the order as relating to case no. 144. the application by miss arbuthnot was for being appointed guardian of the persons of three minor girls, audrey, beronice otherwise called bella and inez mcsweeney. the application of the appellant purported to be one made under section 25 of the act, for an order on the authorities of the loretto convent where the girls were at the time, directing them to make over the girls to the appellant's custody. the learned judge refused the application of the appellant and made an order in favour of miss arbuthnot, on her application, which runs in these words:the application made in case no. 118 of 1928 is allowed and the secretary of the society for the protection of children in india will be appointed guardian of the persons of the minors.2......
Judgment:

1. These two appeals have arisen out of an order which was passed upon two applications, one made by the appellant, Sydney Hugh McSweeney and the other by Miss Arbuthnot, Secretary to the Society for the protection of children in India. The former application was numbered as Case No. 144 and the latter as Case No. 118 under Act 8 of 1890. Appeal No. 83 has arisen out of the order in so far as it related to Case No. 118, and Appeal No. 84 has arisen out of the order as relating to Case No. 144. The application by Miss Arbuthnot was for being appointed guardian of the persons of three minor girls, Audrey, Beronice otherwise called Bella and Inez McSweeney. The application of the appellant purported to be one made under Section 25 of the Act, for an order on the authorities of the Loretto Convent where the girls were at the time, directing them to make over the girls to the appellant's custody. The learned Judge refused the application of the appellant and made an order in favour of Miss Arbuthnot, on her application, which runs in these words:

The application made in Case No. 118 of 1928 is allowed and the Secretary of the Society for the Protection of Children in India will be appointed guardian of the persons of the minors.

2. It will be convenient to deal with the appeals separately.

3. As regards Appeal No. 84, which relates to the application made by the appellant under Section 25 of the Act, it may be stated that there may be a question as to whether such an application comes within the purview of Section 25 of the Act. It is true that the definition of the word 'guardian' as given in Section 4 of the Act, is that it means a person having the care of the person of a minor or of his property, or of both his person and property. But it may be a question as to whether Section 25 was intended to apply to the case of a person who has not been declared or appointed a guardian under the provisions of the Act. This we say notwithstanding the decision of the Madras High Court in the case of Wallace Sita Boi v. Wallace Radha Boi [1919] 51 I.C. 236.

4. We do not however desire to express any definite opinion on this question, and we would rather deal with the case upon its merits. We have heard all that has been said on behalf of the appellant, so far as this application is concerned, and, we may say, we are in entire agreement with what the learned Judge of the Court below has said as regards the desirability or expediency of making over the girls to the custody of the appellant. it is true that much of the materials upon which the application was contested is not evidence, strictly speaking, in view of the provisions of the Evidence Act. It is also true that if it were necessary for us to go into the question whether the charges that were levelled against the appellant some years ago in connexion with his treatment of his daughters were well founded or not, it would not have been possible for this Court upon the materials on the record to come to positive findings adverse to the appellant.

5. The fact however remains that charges of the most loathsome character were made against the appellant upon which he had to be tried though it may be that, as he says he was eventually acquitted. Then there is the fact that these charges were repeated in a typewritten letter addressed to the Chief Presidency Magistrate and signed by appellant's wife.

6. It is true, there is no evidence which would show that that letter reached the hands of the learned Chief Presidency Magistrate; nor is there any. evidence which would go to indicate how it was that the letter came to be in the possession of the Society which happened to produce it in the present case. The question as to whether the appellant was guilty of those charges or not, would always remain a matter of suspicion, unless we hold that the acquittal of which ho speaks may be taken as a conclusive proof of his innocence. Whatever be the effect of his acquittal, if there was any, the fact that such charges formed the subject-matter of proceedings against him in the criminal Court and the fact that his wife also repeated them in a letter meant to be sent to a Magistrate are, in our opinion, enough to justify us in refusing to accede to the appellant's prayer that the girls may be taken away from the convent and made over to him. We are of opinion therefore that in so far as the learned Judge has thought fit to reject the appellant's application under Section 25 of the Act, his order is perfectly good and reasonable and there is no reason whatsoever why we should not agree in it. Appeal No. 84 is accordingly dismissed.

7. As regards Appeal No. 83, the learned Judge has made an order appointing the Secretary of the Society for the Protection of Children in India as the guardian of the minors. In view of the decision of this Court in the case of Ashalata Roy v. Society for the Protection of Children in India : AIR1930Cal397 , this order cannot possibly be supported. In that ease, it was held that neither the Society for the protection of Children in India, nor the Secretary of such Society, as such Secretary, can be appointed a guardian within the meaning of Act 8 of 1890 and further that the provisions of the Act can only be construed as intending the appointment of an individual as the guardian of the minor's person or his property.

8. It appears however that the application that was made by Miss Arbuthnot, although it made reference, in certain paragraphs in it, notably para. 7, to the fact that she was the Secretary to the Society for the Protection of Children in India, a philanthropic society founded inter alia to befriend children and stated that the Society is able to arrange for and supervise arrangements made for the physical well-being, education and protection from moral danger of the children committed to its care, also shows that she did want to press the application from the point of view of her fitness to be appointed as a guardian of these minors in her personal capacity. This original application was filed on 1st June-1928. In the application, which was subsequently filed on 26th July 1928, she declared that she was willing to act as the guardian of the persons of the said minors. It is true that in the course of her deposition, rather towards the end of it, being recalled by Court, she stated in answer to a question put to her that if the Secretary was appointed guardian, the idea would be to keep the children in a good school, while they are of school-going age and then find them work, and that the Society would keep an eye on them until they coma of age and also help them after that age.

9. It does not appear however that she had at any time expressed her unwillingness to be appointed guardian in her individual capacity and apart from her position as the Chief Executive Officer and Secretary. The learned Judge however has made the order in the form we have stated above. The order as made cannot be supported. But then there is no reason why, in view of the present position of these infants we should not ask the learned Judge to consider the question as to whether Miss Arbuthnot, in her personal capacity, would not be thought a fit person to be appointed guardian of the minors. We are told by Mr. Barwell who appears for the Secretary of the Society in the present case that she was and is so willing. In this view of the matter and for these reasons we allow the appeal, set aside the order from which this appeal has been taken and send the case back to the District Judge in order that he may now go into the [question as to whether quite apart from the fact that Miss Arbuthnot is the Secretary, she should or should not in her individual and personal capacity be thought fit to be appointed as such guardian.

10. The learned Judge will be at liberty to make such final order as he would consider necessary to make in view of the conclusion which he will arrive at on the question indicated above.

11. In view of the nature of successes of the parties we do not propose to make any order as to the costs of these appeals.


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