Patna High Court
Lakshmi Devi vs Chandrakala Saraogi And Anr. on 9 September, 1974
Equivalent citations: AIR1975PAT83, AIR 1975 PATNA 83, ILR (1975) 54 PAT 245
Author: Lalit Mohan Sharma
Bench: Lalit Mohan Sharma
JUDGMENT K.B.N. Singh, J.
1. This appeal is against an order dated the 25th September, 1973, of the District Judge of Purnea, removing the appellant from guardianship of the person and property of Smita Agrawal, minor daughter of the late Alok Kumar Agrawal, and cancelling the order dated the 18th January, 1972, appointing the appellant as guardian.
2. On the 7th February, 1971, in a motor car accident, the father of the minor, Alok Kumar Agrawal, her mother Manju Agrawal, her younger brother Sribardhan Agrawal, her grand-father Krishinakumar Das, and her grand-mother, Raj Kumari Devi, died leaving Smita Agrawal, the sole survivor in the branch of Krishna Kumar Das. The appellant is the wife of Nirmal Kumar Das, brother of Krishna Kumar Das, who had separated from the latter during his life time. The minor, Smita Agrawal, escaped from the catastrophe, as she was living at Calcutta with the respondents, her maternal grand-mother (Nani) and maternal uncle (Mama), where she was prosecuting her studies in Modern High School.
3. After about 9 months of the aforesaid car accident, on the 18th November, 1971, the appellant, Lakshmi Devi, a grand-paternal-aunt of the minor, filed an application under Section 10 of the Guardians and Wards Act 1890 (hereinafter referred to as the Act), before the District Judge of Purnea, praying that she should be appointed guardian of the person and proerties of the minor. In that application she mentioned the name of her husband, Nirmal Kumar Das, her son Manoj Kumar Agrawal, and her minor daughter Madhulika, as the near relations of the minor, besides herself. Within three days of the Court's order for publication of notices of the case, on the 18th January, 1972, the three near relations, mentioned in the application, filed power and also an application staring that they had no objection to the appellant being appointed as guardian of the person and properties of the minor, provided the same is ordered without any prejudice and detriment to their right, title and interest, if any, in the properties, mentioned in the various schedules of the guardianship application in which the appellant's husband and son claimed interest. Thereupon, by an order of the same date, i.e., the 18th January, 1972, the learned District Judge appointed the appellant as the guardian of the person and properties of the said minor. On the 8th February, 1972, the appellant Lakshmi Devi furnished bond which was accepted by the Court on the 12th April 1972, and thereafter the guardianship certificate was issued on the 14th April, 1972. These facts are not in dispute.
4. On the 3rd May, 1972, the respondents filed an application, purporting to be under Section 39 of the Act, for removing the appellant from guardianship and cancelling the aforesaid order of appointment of the appellant as guardian, on the ground that Lakshmi Devi, by practising fraud on the Court and by suppressing the real and correct facts mala fide secured the order appointing her as guardian, in contumacious disregard of the provisions of the Act, and that her interest and those of her husband and son are adverse to the minor. It was stated therein that Respondent No. 1 Chandrakala Saraogi is the mother's mother of the minor, Smita Agrawal, and Respondent No. 2 Bimal Kumar Saragoi is the maternal uncle of the minor, with whom the minor is continuously residing since the lifetime of her parents, in the care and custody of those respondents, at 19--Balmukund Mackkar Road. Calcutta, within the jurisdiction of the City Civil Court at Calcutta, and that the minor is a student, since January, 1967. of the Modern High School of No. 78, Syed Ameer AH Avenue, Calcutta-19, and had never been to Purnea thereafter, even at the time of or after the death of her parents. After the death of her parents and grand-parents in the said unfortunate car accident, the minor inherited both movable and immovable properties, situated in Purnea, within the jurisdiction of the Purnea Court and partly outside the jurisdiction of that Court. The minor is very much attached to the respondents and the respondents are taking all care for upbringing her in conformity with the family traditions. As the minor was ordinarily residing with the respondents at Calcutta in April, 1971, they filed an application in the Court of the Chief Judge, City Civil Court, Calcutta, for being appointed as guardian of the minor, which was registered as Act VIII case No. 20 of 1971. A copy of the application filed in the Calcutta Court, was annexed as Annexure 'A' to the said application.
5. The City Civil Court, Calcutta, issued general and special notices to the relations of the minor, including the appellant, Nirmal Kumar Das, Manoj Kumar Agrawal and Madhulika. alias Malti Agrawal, through Court bailiff of the District Judge's Court at Purnea. Those notices were duly served by affixation at their residences, as they were reported out of station. Thereafter, at the instance of the respondents, special notices on the said near relations under registered cover with acknowledgement due were also sent, which were returned unserved with a remark 'out for a long time.' Notices sought to be served by affixation under Order V, Rule 20, of the Code of Civil Procedure were returned unserved with the remark that five or six persons met the process server of the Court on the door and on enquiry from them they informed that the addressees were out and upon the process server seeking permission to go inside, disclosing his identity, for effecting service by affixation, the process server was threatened and prevented from affixing the said notices. It was stated in the application that the appellant as well as her husband and son had full notice and knowledge about the pendency of the guardianship case in the Calcutta City Civil Court. Suppressing this fact and making false statements to create jurisdiction in the Purnea Court, and also with a view to delaying that case, the appellant filed, on the 18th November, 1971 an application under Section 10 of the Act for appointment as guardian of the person and properties of the minor, in the Purnea Court. By fraudulent suppression of the real facts (a) of the respondents being near relations of the minor, (b) the minor not ordinarily residing within the jurisdiction of the Purnea Court, as also (c) that an earlier application for guardianship was filed by the respondents before the City Civil Court Calcutta, and falsely stating that the minor was in possession of the appellant, she secured an ex parte order on the 18th January, 1972, appointing her as guardian of the person and properties of the minor. The respondents learnt of the aforesaid order after the appellant filed, on the 26th April, 1972, an objection in the guardianship case filed by the respondents before the City Civil Court, Calcutta in April, 1971. The respondents learnt of the suppression of facts and fraud practised on the Court on inspection of the records of this case at Purnea on the 1st May, 1972, and, thereafter the application under Section 39 of the Act was filed on the 3rd May, 1972.
6. It is stated in the application that Nirmal Kumar Das, younger brother of the late Krishna Kumar Das, grand-father of the minor, is mentally retarded and incapable of looking after the properties of the minor left behind by late Krishna Kumar Das, who was separate from his brother Nirmal Kumar Das, and all his properties were separately recorded in the names of the minor's grandfather, Krishna Kumar Das, and her father late Alok Agrawal, who died in the car accident in the record of rights. The properties acquired by them were separately recorded in the names of Raj Kumari Das and Manju Agrawal, who also died in the said car accident, and the minor became the sole heir of the properties left by her parents and her younger brother Srivardhan Agrawal, who died in the said car accident. Smita Agrawal also became heir of half share of the properties left behind by her grand-father Krishna Kumar Das and her grand-mother Rajkumari Das, and the other half was inherited by minor daughter of Veena Agrawal, a pre-deceased daughter of Krishna Kumar Das. It was on account of the mental retardedness of Nirmal Kumar Das that the application for guardianship was not filed by him, but it was filed by Lakshmi Devi, his wife, who is a pardanashin Lady, incapable of managing the properties, she being half-literate and unaware of the management of properties. The affidavit in support of the guardianship application, as it contained deliberate false statements, was sworn by a Munshi of the Court, Paramanand Prasad, and the appellant had no guts to swear the affidavit in support of the application, which also is not in conformity with Order VI, Rule 15 of the Code of Civil Procedure. The interest of Lakshmi Devi is adverse to the interests of the minor and for mala fide intention, she has not incorporated properties like agricultural lands, etc., which the minor has inherited from her ancestors. The valuation of the properties given for the appointment of guardian is Rs. 8,35,513/- and that the security bond furnished by Lakshmi Devi, who does not possess properties worth that amount, has not been registered and the validity or otherwise of the said bond had been only verified by the Nazir of the Court.
The respondents also stated instances how the appellant had been trying to devour the properties of the minor. It has been mentioned that a house in the town of Purnea, bearing the inscription "Krishna Villa", after the name of Krishna Kumar Das, to whom it exclusively belonged, has been changed as "Lakshmi Niwas", with a view to grab it. The mala fide intention of Lakshmi Devi and her son Manoj Kumar Agrawal is also apparent from the fact that Manoj Kumar Agrawal filed succession certificate case in respect of the money lying in the different banks in the names of the deceased parents of the minor in the subordinate Judge's Court at Purnea. Later this was withdrawn by a letter dated the 29th March, 1971, and Lakshmi Devi filed succession certificate Case No. 23 of 1971. In all the title suits filed on behalf of late Krishna Kumar Das and his son, etc., which were pending in various Courts at Purnea, substitution petition on behalf of Smita Agrawal was filed by Respondent No. 2, with the full knowledge of the appellant and her son, and Anil Guha Advocate, Purnea, who was also looking after the affairs of Krishna Kumar Das and who has now come within the clutches of Manoj Kumar Agrawal, that the appellant, her husband Nirmal Kumar Das, her son Manoj Kumar Agrawal and her daughter Malti Agrawal, had interests adverse to the minor, was also amply proved by their actions and they were to gain if the minor was removed from the world, and none of them was fit to be appointed guardian of the person and the properties of the minor and a prayer was made for cancelling the order of appointment mads in her favour and to remove her from guardianship.
7. The appellant filed a show cause to the application filed by the respondents and refuted the allegations. Both sides examined witnesses and exhibited documents in support of their cases.
8. The learned District Judge, by his impugned order dated the 25th September, 1973, came to the conclusion that the appellant Lakshmi Devi's appointment as guardian was not valid or legal and further she had rendered herself unfit to be the guardian of the minor and he, therefore, ordered the appellant to be removed from the guardianship of the minor and directed her to deliver the properties belonging to the minor from her control and to render necessary accounts within 90 days from the date of the order to the respondents on the following findings:
(a) Chandrakala Devi, Respondent No. 1, is the own mother's mother of the minor and the applicant had deliberately and with mala fide, intention concealed their relationship in her application filed under Section 10 of the Act.
(b) Ever since the age of one year, the minor was residing at Calcutta, formerly with her parents and since 1968 with the respondents, and had never been to Purnea since the age of one year, and the appellant has falsely claimed in her application under Section 10 of the Act that the minor is in possession of the appellant,
(c) The applicant had knowledge of the previous application for appointment of guardian of the minor filed by the respondents at Calcutta when she filed her application in Purnea Court and this was another instance of fraudulent suppression and contumacious disregard of the provisions of the Act.
(d) The minor, Smita Agrawal, was residing ordinarily at Calcutta, and, therefore, on the date of the application filed by Lakshmi Devi for appointment as guardian, the Purnea Court had no jurisdiction to entertain the application for appointment of guardian.
(e) Lakshmi Devi has shown contumacious disregard of the various provisions of the Act by suppressing and misstating important facts, her interest was adverse to the minor's, she has abused the trust and is also incapable to perform the duties of a guardian, either of the person or the properties of the minor.
9. Mr. Balbhadra Prasad Singh has submitted that there has been no contumacious disregard of any provision of this Act, to attract clause (e) of Section 39 of the Act, so as to justify the order of removal. He has urged that the learned District Judge has erred in holding that there was suppression of the fact of the 'ordinary residence' of the minor or as to possession of the minor, or about the 'near relations', so as to hold that there was contumacious disregard of the provisions of Sub-clauses (a), (d), (e) and (g) of Sub-section (1) of Section 10 of the Act by the appellant in her application for guardianship.
10. The relevant provisions of Section 10 of the Act read thus:--
"(1) If the application is not made by the Collector, it snail be by petition signed and verified in manner prescribed by the Code of Civil Procedure for the signing and verification of a plaint, and stating, so far as can be ascertained-
(a) the name, sex, religion, date of birth, and ordinary residence of the minor;
XX XX XX
(d) the name and residence of the person having the custody or possession of the person or property of the minor;
(e) what near relations the minor has, and where they reside;
XX XX XX
(g) Whether an application has at any time been made to the Court or to any other Court with respect to the guardianship of the person or property, or both, of the minor, and, if so, when, to what Court and with what result;
XX XX XX (The relevant expressions have been under-fined by me).
Mr. Singh has urged that the finding of the learned District Judge that Chandrakala Saraogi is the own mother of Manju (i.e. the mother of the minor), is not a correct finding and has submitted that Manju, the mother of the minor, was the daughter of Sakuntala, the second wife of Motilal Saraogi, Chandrakala being the third wife of Motilal, In support of his submission, learned counsel relied on the statements made by O. W. 6 in cross-examination that Chandrakala was married to Motilal Saraogi in 1944-45. Manju Agrawal, undisputedly, was born on the 4th August, 1944, as is also the finding of the learned District Judge, and, therefore, Chandrakala would not be her own mother, she having been married to Motilal in 1944-45, as admitted by O. W. 6. He has submitted that it was after the death ot Sakuntala, his second wife, that Motilal married Chandrakala in 1944-45, who was his third wife, as is the case of the appellant.
11. It is true that O, W. 6 stated in his cross-examination that Chandrakala was married to Motilal in 1944-45. But just in the preceding line in cross-examination this witness stated that one and a half years or one and a three fourth years after the death of Shanti Devi, Motilal was married to Chandrakala Devi. There is no dispute about the date of death of Shanti Devi, the first wife of Motilal, being the 25th October, 1941, as is apparent from Exhibit 'E', the Death Register of Nimtala Burning Ghat. This will fix the year of marriage of Chandrakala in 1943, as also deposed to by the other witnesses on behalf of the respondents. The witness has also stated in cross-examination that 30 years before his evidence (in March, 1973) Chandrakala was married, which will also mean 1943. It is, therefore, manifest that the mention of the year 1944-45 as the year of the marriage of Chandrakala Devi with Motilal was made in confusion in calculating the actual year and was an inaccurate statement. O. W. 6 is not a very near relation of Chandrakala Devi and no exact precision and accuracy about the year of marriage can be expected from this witness. The witnesses' father and the mother of Chandrakala Devi and Shanti Devi were cousin brother and sister. The learned District Judge, after fully considering the whole evidence of this witness, has come to the conclusion that the year 1944-45 mentioned was evidently an incorrect statement with which I fully agree.
Learned counsel has also urged that the learned District Judge was not correct in relying on the evidence of O. W. 5, Ishwari Prasad Goenka, about the marriage of Chandrakala Devi with Motilal in 1943, inasmuch as this witness in cross-examination failed to give the year of marriage of his only son. He has deposed with regard to the marriage of Chandrakala with reference to a very important incident. He has stated that the marriage of Chandrakala was not performed from Calcutta on account of the Japanese Bombing of Calcutta and it was performed from Deoghar, where he was living since 1941 and remained there for 4 years, in course of which Chandrakala was married in 1943. The year of marriage given by the witness is with reference to a special event and his evidence on the point, in my opinion, could not be discarded merely on the ground that he could not give the year of the marriage of his only son. The age of his son at the time of his evidence was 45 years, which also indicates that he must have been married long ago for him to remember the exact year of his marriage. The trial Court has considered this witness as independent and respectable and nothing has been shown to us nor I find anything in the evidence to indicate that he was deposing falsely.
12. The learned counsel has further referred to the application filed for guardianship in the City Civil Court, Calcutta, where Chandrakala Devi has described herself as the grand-maternal aunt of the minor in paragraphs 4 and 9, and respondent No. 2 as maternal uncle of the minor, which statements, according to the learned counsel, reveal the real truth that she was not the own mother of Manju. This submission regarding statement in paragraph 4 of her application overlooks, that what is meant by the expression "grand-maternal aunt" has been explained in that very line as "mother's mother of the minor, which clarifies any ambiguity that may be in the expression "grand-maternal aunt,"
13. It may be relevant to mention that in the guardianship application filed by the appellant, Chandrakala has been described as a close friend of the family and in the show cause filed on the 6th June, 1972 although it was admitted that Chandrakala was the step mother of Manju, but it was not stated in the show cause as to who was the own mother of Manju. On the other hand, the specific case of the respondents has been that Motilal had only two wives, the first one being Shanti Devi. After her death in 1941, he married Shanti Devi's own sister, Chandrakala, in 1943, and Manju was Motilal's daughter from Chandrakala. The statement of the respondents' witnesses, O. Ws. 1 to 9 to the effect that Motilal had only two wives, was not even challenged in cross-examination. It was for the first time when O. W. 12, Bimal Kumar Saraogi, Respondent No. 2, was being cross-examined that an attempt was made to suggest to him that the second wife of Motilal was one Sakuntala Kezriwal, daughter of Nagarmal Kezriwal of East Dinapur (now in Bangla Desh), and Manju Agrawal was the only child born of her and that after her death Motilal married Chandrakala Devi. This suggestion was not allowed to be put to the last witness at the fag end of the proceeding by the Court, when almost all the witnesses had already been examined. The learned District Judge has rejected the evidence of the three witnesses for the appellant on the point, namely, A. W. 2, Brijnandan Pathak, a Puro-hit of the family A. W. 5 Lakshmi Devi, the appellant herself, and A. W. 1 Sabita Sen, a Teacher of the local girls High School, and nothing has been pointed out before us that the assessment of the evidence of these witnesses in paragraphs 22 to 29 of the order is in any way erroneous. After going through their evidence, I do not find any reason to take a different view of the matter.
14. Apart from the evidence of O. W. 6, discussed above, the learned District Judge has relied upon the evidence of O. W. 3, Mridula Jhunjhunwala, full sister of Manju, Narmada Devi (O. W. 1), mother of Chandrakala Saraogi, Ridhkaran Kejriwal (O. W. 7), step-mother of Chandrakala, Saut Lal Saraogi (O. W. 9) brother of Motilal Saraogi, and Chandrakala (O. W, 4) herself. Their consistent evidence is that Shanti Devi and Chandrakala were full sisters. O. W. 12 and Kusum Kumari were the issues of Shanti Devi, and Shanti Devi died in 1941. Thereafter Motilal married Chandrakala in the year 1943, and three daughters and one son were born to Chandrakala. Manju was the first issue of Chandrakala and Chandrakala is the own Nani of the minor. Apart from these relation witnesses, the trial Court also relied upon the evidence of two other witnesses. O. W. 5, Ishwari Prasad Goenka, whose evidence I have already discussed, and O. W. 8, Satyanarain Poddar, whom it considered to be independent witnesses, about Chandrakala being the own mother or Manju. These witnesses are competent wit-
nesses and their evidence fully conforms to Section 50 of the Evidence Act. No argument has been advanced before us, challenging the testimony of these witnesses on the point, except of O. Ws. 5 and 6, and after going through their evidence, I am fully satisfied that the trial Court was right in holding that Chandrakala Devi was the own mother of Manju Devi and own Nani of the minor, and not step mother or step Nani, as urged on behalf of the appellant. Apart from the oral evidence, the trial Court has in detail referred to the letters which passed between Manju and Chandrakala as also certain circumstances, which also go to strengthen the finding of the trial Court in this regard.
15. Realising his difficulty in assailing the finding of the minor, (sic) Mr. Singh has sought to get over the difficulty by urging that the requirement of mentioning the names of "near relations" in a guardianship application as laid down in Section 10 (1) (e) of the Act is confined only to blood relations. This argument is wholly untenable, inasmuch as if this argument is accepted, the husband or the wife will in no case come Within the category of 'near relation'. Mother's mother will doubtlessly come in the category of 'near relation'.
16. The finding of the trial Court that ever since 1968, the lifetime of her parents, the minor has been continuously residing with the respondents and she has never been to Purnea either during the lifetime of her parents or on their death in the car-accident on the 7th February, 1971, has not been challenged by Mr. Singh before us. He has, however, urged that the necessity of mentioning the "ordinary residence of the minor", as required in Section 10 (1) (a) of the Act is in the sense of permanent residence of the minor and as the parents of the minor were permanently residing at Purnea at the time of their death, the 'ordinary residence' of the minor will be Purnea. He has submitted that to be at a place is not ordinarily residing at the place. So the fact that the minor was at Calcutta at the time of the application will not make Calcutta as the 'ordinary' place of 'residence' of the minor. He has urged that there was no animus on the part of the minor's father of deserting the dwelling house at Purnea. He also urged that the minor's father at one point of time after leaving Calcutta was thinking of sending the minor Smita for studies to Darjeeling or Patna. It may be pointed out that O. W. 12 has stated in his evidence that the idea to send Smita to Darjeeling or Patna was abandoned by Alok Babu when he left Calcutta in 1968. The fact that the minor's parents had no idea of desertion of Purnea house is immaterial. The requirement of Section 10 (1) (a) of the Act is 'ordinary residence', which is a well understood concept. From the finding arrived at by the Court below, which has not been challenged before us, the minor, since the age of one was residing with her parents at Calcutta, and after 1968, when her parents came to reside at Purnea, she has been continuously residing at Calcutta with the respondents and she was admitted in a School there and prosecuting her studies under the care and custody the respondents even during the lifetime of her parents and was continuing to do so even thereafter. During all the relevant period, the respondents were her local guardians in the School and after the death of her parents in the car accident her de facto guardians. This fact, in substance, is admitted in the application for guardianship filed by the appellant. Therefore, the ordinary residence of the minor was at Calcutta, especially so when she had never been to Purnea since the age of one. The requirement of Section 10 (1) (a) is not as to where is the permanent home of the minor, but, as to where the minor is ordinarily residing. This is because of the fact that Section 9 (1) of the Act lays down that an application for guardianship of the person of a minor shall be made before the District Judge having jurisdiction in the place where the "minor ordinarily resides." Sub-section (2) of the said section, on the other hand, makes it optional that an application with respect to the guardianship of property of a minor could either be made before the District Court having jurisdiction in the place where the minor ordinarily resides or the District Court having jurisdiction in the place where the property is situate. Such property may include the ancestral house of the minor. Sub-section (3) of Section 9 of the Act is of some special significance and it provides that-
"(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 ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction."
Therefore, 'ordinary residence of the minor' has to be understood independent of the properties of the minor, which may include family dwelling house, where the minor has never resided, much less ordinarily resided. Such a family house, therefore, cannot be considered to be a place of ordinary residence of the minor. This is in consonance with the aims and objects of the Act, mas-much as the District Judge within whose jurisdiction the minor ordinarily resides is considered to be in a better position to look after the person and welfare of the minor than the District Judge in whose jurisdiction the minor's properties are situate, including the paternal house, where the minor is not ordinarily residing. The ordinary residence of a minor may not necessarily be his own house, it may be a rented house or some other residence as well.
17. The case of Sheikh Mahomed Hossein v. Akbar Hossein, (1872) 17 Suth WR 275, relied upon by Mr. Singh is clearly distinguishable. In that case, one of the questions that arose for decision was the meaning of the expression "residence", as used in Section 5 of Act XL of 1858. The wordings of the section, as quoted in the decision, are as follows:--
"Application shall be made to the Civil Court of the District in which the minor has his residence."
The expression "residence" has been interpreted to be the paternal family house or the family residence of the minor in which every member of the family has an interest and in which they usually reside. It was in that context that Loch J. observed that the word 'residence' used in this section is not a place where the minor may be dwelling at or about the time when the application under the Act is made, but the family dwelling place where every member of the family usually resides. Ainslie, J. who concurred with the order of dismissal of the appeal, did not wholly agree with the interpretation given by Loch J. to the said expression. The following observations made by Ainslie J. may usefully be reproduced:--
"I merely wish to add that while I think that Act XL of 1858 contemplates that an application for a certificate of guardianship should be made within a reasonable time after the death of the parent, and that the word 'residence' as used in Section 5 must ordinarily be taken to mean the residence of the father, still I am not prepared to say that circumstances might not arise in which it might be taken to mean otherwise. I do not wish to confine myself to this particular interpretation of the word quoted, the question of its interpretation may come up for consideration hereafter in another case."
The provisions of the present act are quite different in this regard and speak of ordinary residence of the minor and not about his residence in the sense of having paternal house. A minor" may be ordinarily residing in a house not of his own or even in a rented house. The expression "ordinary residence" means more than a temporary residence and means a place where the minor usually or generally resides. The view I have taken gains support from a Bench decision of this Court in the case of Bhola Nath v. Sharda Devi, AIR 1954 Pat 489, where it has been observed:--
"From a review of the cases mentioned above, it appears that the question as to the ordinary residence of the minor must be decided on the facts of each particular case and that, generally, the length of residence at a particular place determines the question. The expression, 'the place where the minor ordinarily resides', in my opinion, means the place where the minor generally resides and would be expected to reside, but for a special circumstance."
18. Mr. Singh has also submitted that non-mention of the name of Chandrakala as a near relation or the minor's ordinary residence, or about the possession of the minor would not amount to contumacious disregard to the provisions of the Act, so as to bring the case under the mischief of Section 39 (e) of the Act. He has submitted that the application for guardianship under Section 10 is required to be signed and verified in the manner prescribed by the Code of Civil Procedure for signing and verification of a plaint, and stating, "so far as can be ascertained", particulars mentioned in Sub-clauses (a) to (1) of Section 10 (1) of the Act. He has laid emphasis on the expression "so far as can be ascertained" (which has been underlined by me) occurring in Section 10, and submitted that even if it can be held that the appellant knew about Chandrakala being the own Nani of the minor and the fact about her ordinary residence at Calcutta, as found by the Court, this would not be enough. It would amount to mere disregard to the requirements of Section 10. What is required to be established by the respondents is 'contumacious disregard' of the provisions and not mere 'disregard.'
19. The expression "contumacious" as defined in the Oxford English Dictionary means, "contemning and obstinately resisting authority; stubbornly perverse, insubordinate, rebellious (of persons and their actions)". In law it means "wilfully disobedient to the summons or order of a Court." The question for consideration is whether the appellant has been guilty of obstinately resisting the authority or wilfully disobeying the mandates of law. It will be relevant to refer to a portion of paragraph (D) of the guardianship application filed by the appellant in this regard:--
"After the parents left Calcutta, the said minor has been living with Srimati Chandrakala Saraogi, a close "friend of the family and during holidays and also on the closing of the school she has been coming to Purnea to reside here with her parents, grand-parents and grand-aunt (applicant). It is worth mentioning here that due to an unfortunate and serious car accident on 7-2-1971, her parents, grand-parents and brother all died together and simultaneously.
That the minor is now in possession of this applicant."
From the above passage it is apparent that it is admitted that the minor has been living with Chandrakala Saraogi, who has been described as a close friend of the family, which statement obviously is a false one. It is also stated therein that the minor had been, during holidays, visiting Purnea and residing with her parents, grand-parents and grand-aunt, meaning the appellant. As found by the trial Court which has not been challenged before us the minor never came to Purnea after the age of one. There is thus no question of her residing at Purnea, with any of the relations, much less the appellant.
The appellant and her husband were separate in all respects from the parents and grand-parents of the minor and by aforesaid false statement, an impression was created in the mind of the Court that after the death of the grand-parents and parents, the minor had been residing during holidays with the appellant, which is obviously a false statement. To crown all, it is stated in the end that the minor is in possession of the applicant. This also has been found to be false by the learned District Judge and this finding has not been challenged before us. An argument has been sought to be built that the possession referred to was a juridical possession, the appellant being the nearest paternal relation. This argument obviously cannot be sustained. The learned District Judge in this regard has observed that if the fact regarding the ordinary residence of the minor had been correctly stated in the application, the Court might have acted under Sub-section (3) of Section 9 of the Act by returning the application. It must be remembered in this regard that Section 9(1) of the Act lays down that an application for appointment of a guardian of a minor can only be filed before the District Court in whose jurisdiction 'the minor ordinarily resides.' It is apparent that it was to get over this hurdle and the requirement of law that the aforesaid statements were made in the application, to create jurisdiction in the District Court at Purnea, which could not have been entertained for appointing a guardian of the person of the minor. The trial Court, on an elaborate discussion of the evidence, has found in paragraph 35 that the appellant had full knowledge about the previous application filed by the respondents in the City Civil Court at Calcutta for appointment of guardian of the minor, and, this was another instance of fraudulent suppression and contumacious disregard of the provisions of the Act. The finding of the trial Court about the appellant's knowledge about the guardianship application pending in the Calcutta City Civil Court has not been seriously challenged before us. On going through the evidence, I am fully satisfied that the appellant had knowledge about the prior guardianship application filed in the Calcutta City Civil Court, and, thereafter, the appellant hurriedly contrived to obtain an ex parte order in her favour from the Purnea Court. This aspect of the matter has been fully considered in paragraphs 32 to 35 of the order and they need not be reiterated, as I am in full agreement with the finding and appreciation of the evidence by the learned court below in this regard.
Suffice it to mention that ever since the death of the minor's parents, it were the respondents who were not only taking care of the minor but were filing substitution petitions and taking steps in cases filed by the minor's parents, till suddenly, about 9 months after the death of the minor's father, the appellant filed the guardianship application at Purnea. The facts are too telling to lead to any other conclusion. I, therefore, find no substance in the submission of Mr. Singh that there has been no contumacious disregard of the provisions of the Act.
The decision in the case of Mulukh Raj Sharma v. Dhanbanta Debi, AIR 1957 Cal 322, relied upon by Mr. Singh in support of his submission that failure to mention the name of a near relation of the minor in the guardianship application was a mere irregularity, is clearly distinguishable. In that case, the mother of the minors, after her husband's death filed an application for guardianship of the person and properties of the minors, as she was experiencing difficulties in realising rent of some house properties, which were the only source of income of the minors. In that application the paternal uncle was not mentioned, as a near relation. In absence of the father, the mother, being the natural guardian of the minors, was not obliged to apply for being appointed as guardian of the minors, non-mention of the paternal uncle in the application for guardianship filed by her has, perhaps, in that context, been held to be an irregularity. This cannot be so in the case of an omission of the minor's own Nani, with whom the minor was ordinarily residing and who was her de facto guardian. (Vide AIR 1934 Bom 311 and AIR 1954 All 690.) A near relation incharge of the minor is the first person to be cited amongst the near relations.
20. In my considered opinion, a guardian can doubtless be removed for concealing real facts as to the near relations of the minor as also the fact of the minor's ordinary residence and for concealing the fact of an earlier application being filed in some different Court, as it would amount to contumacious disregard of the provisions of Section 10 (1) (a), (d), (e) and (g), attracting the provisions of Section 39 (e) of the Act.
21. Mr. Balbhadra Prasad Singh has urged that the order of appointment of guardian dated the 18th January, 1972, of the learned District Judge could be challenged only by way of appeal under Section 48 of the Act. Short of ground of fraud, the Court has no power to revoke the order appointing the appellant as guardian of the minor or cancel the order. The learned Counsel urged that no such jurisdiction in favour of the Court could be inferred in absence of there being a specific provision in this regard. In support of his submission, the learned counsel relied on the provisions of Section 263 of the Indian Succession Act, by way of legislative practice, to show that where such power was intended to be conferred on a Court to rescind his order, it has been specially provided for in the statute. He has, therefore, urged that if Section 39 of the Act is not attracted, there is nothing in the order of appointment of the guardian which suffers from any inherent lack of jurisdiction. The District Judge also has not pointed out any legal infirmity in his order appointing the guardian. The omission to mention the names of near relations, etc., in the guardianship application, as mentioned above, does not constitute fraud. Learned counsel relied on the case of Nirode Barani Debya v. Bhole Nath Sarkar, 26 Ind Cas 300 = (AIR 1915 Cal 435) to show that paternal relations, in the matter of appointment as guardian, should be preferred to the maternal relations.
22. Section 263 of the Indian Succession Act reads thus:
"The grant of probate or letters of administration may be revoked or annulled for just cause.
Explanation--Just cause shall be deemed to exist where-
(a) the proceedings to obtain the grant were defective in substance; or,
(b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case; or,
(c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or,
(d) the grant has become useless and inoperative through circumstances; or,
(e) the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect Illustrations:
(i) The Court by which the grant was made had no jurisdiction.
(ii) The grant was made without citing parties who ought to have been cited.
(iii) The will of which probate was obtained was forged or revoked.
(iv) A obtained letters of administration to the estate of B, as his widow, but it has since transpired that she was never married to him.
(v) A has taken administration to the estate of B, as if he had died intestate, but a will has since been discovered.
(vi) Since probate was granted, a later will has been discovered.
(vii) Since probate was granted, a codicil has been discovered which revokes or adds to the appointment of executors under the will.
(viii) The person to whom probate was, or letters of administration were granted has subsequently become of unsound mind."
Under Section 299 of the Succession Act, the orders of the District Judge under the Succession Act have been made appeal-
able to the High Court. Under Section 300 the High Court has been given concurrent jurisdiction with the District Judge to exercise powers conferred upon the District Judge. Section 301 authorises the High Court on application, to suspend, remove or discharge any private executor or administrator and to provide for the succession of another person to the office of any such executor or administrator.
23. Section 39 of the Act, dealing with removal of guardian by the Court, mav also be reproduced:
"The Court may, on the application any person interested, or of its own motion, remove a guardian appointed or declared bv the Court, or a guardian appointed by will or other instrument, for any of the following causes, namely--
(a) for abuse of his trust;
(b) for continued failure to perform the duties of his trust;
(c) for incapacity to perform the duties of his trust,
(d) for ill-treatment, or neglect to take proper care, of his ward;
(e) for contumacious disregard of any provision of this Act or of any order of the Court,
(f) for conviction of an offence implying, in the opinion of the Court, defect of character which unfits him to be the guardian of his ward;
(g) for having an interest adverse to the faithful performance of his duties;
(h) for ceasing to reside within the local limits of the jurisdiction of the Court;
(i) in the case of a guardian of the property, for bankruptcy or insolvency;
(j) by reason or the guardianship of the guardian ceasing, or being liable to cease, under the law to which the minor is subject;
Provided that a guardian appointed by will or other instrument, whether he has been declared under this Act or not, shall not be removed-
(a) for the cause mentioned in Clause (g) unless the adverse interest accrued after the death of the person who appointed him, or it is shown that that person made and maintained the appointment in ignorance of the existence of the adverse interest or,
(b) for the cause mentioned in Clause (h), unless such guardian has taken up such a residence as, in the opinion of the Court, renders it impracticable for him to discharge the functions of guardian."
A reference to the two provisions quoted above, will show that to a great extent they cover common grounds,--Section 263 of the Succession Act provides for revocation of the grant of probate or letters of administration for just cause, which has been explained and illustrated, while Section 39 of the Act mentions specific circumstances, under which a guardian could be removed, the guiding consideration being the welfare of the minor. It may be pertinent to mention that unlike the Guardians and Wards Act, there is no provision in the Indian Succession Act apart from revocation and annulment of the grant of probate or letters of administration, for the removal of an executor or an administrator, except in the case of a private executor or administrator, who can only be removed by the High Court as provided under Section 301 of the Succession Act and a fresh one appointed. This section is a reproduction of Section 4 of the Administrators General Act (Act V of 1902), and prior to 1902 the Courts in India had no power to remove an executor. In substance, the provisions of Section 263 of the Succession Act and Section 39 of the Guardians and Wards Act are meant to serve the same purpose, and, in this regard it may be said that removal or revocation are two facets of the same thing. In the instant case, the Court has ordered for removal of the appellant from guardianship for contumacious disregard of the provisions of the Act and her interest being adverse to those of the minor, as also for having abused the trust and being incapable of doing the duties of the guardian either of the person or the properties, of the minor. The findings about her interest being adverse to the minor and she having abused the trust or about her being incapable of performing the duties as a guardian have not been seriously challenged before us. As I am in entire agreement with the appraisal of the evidence on the point, I need not repeat all the reasons given by the trial Court for coining to the same conclusion.
Apart from that, the inherent power of the Court under Section 151 of the Code of Civil Procedure is also there to interfere with the order of appointment. Interference in the exercise of the inherent powers also will be fully justified on the findings recorded by the learned District Judge about his having been misled by the false statements and misrepresentations made in the application for guardianship. (Vide Walima Khatoon v. Md. Kabiruddin, AIR 1958 Fat 410).
24. There is also substance in the submission of Mr. Chatterjee, learned counsel appearing on behalf of the respondents, that the findings of the Court below are really findings of fraud by deliberate concealment of essential facts, which the appellant was bound to disclose, about the minor's ordinary residence, and by her statement that the minor was residing with her, the appellant intended the Court to act upon those misrepresentations and assume jurisdiction and the result was that the Court was misled in passing the order, as stated by the learned District Judge himself. As a matter of fact, condition No. 1, as incorporated in guardianship certificate "that you shall not, without the leave of the Court, remove the minor from the limits of jurisdiction of this Court" fully justifies the finding of the Court that it was misled by misrepresentation facts in entertaining the application and appointing the appellant as a guardian, although it had no jurisdiction to appoint guardian of the person of the minor.
Mr. Singh's submission that the respondents' remedy only lay by way of appeal against the order of appointment under Section 48 of the Act is also without any substance. Section 48 reads as follows:
"Save as provided by the last foregoing section and by Section 622 of the Code of Civil Procedure, an order made under this Act shall be final, and shall not be liable to be contested by suit or otherwise."
"The reference to Section 622 of the Code of Civil Procedure should now be read as that to Section 115. Civil Procedure Code of 1908."
Reference to the "foregoing section" in this provision is reference to Section 47, which provides for an appeal to the High Court from an order made by a Court against art order under Section 7, appointing or declaring or refusing to appoint or declare a guardian. What Section 48 lays down is this that subject to the right of appeal under Section 47 of the Act or a revision under Section 115 of the Code of Civil Procedure, an order made under the Act will be final and shall not be liable to be challenged by a suit or otherwise. It does not, however, in any way subtract from the powers of the Court the power to remove a guardian under Section 39, suo motu, or on an application in an appropriate case. The respondents were no party to the guardianship proceeding and they doubtless could challenge the order and pray for removal of guardian by an application under Section 39 of the Act.
25. Mr. Singh has submitted that after revoking the order of appointment of guardian, the Court below has failed to comply with the mandatory provision of Section 14 (3) of the Act in not staying the proceeding and reporting the matter to the State Government and has erred in considering the proceeding as having come to an end. After revocation of the appellant's appointment, an application for appointment as guardian will be deemed to be pending in the city Civil Court at Calcutta, the Court was bound to comply with the legislative mandate under Sub-section (3) of Section 14 of the Act.
26. Chapter II of the Act deals with Appointment and Declaration of Guardians and consists of Sections 5 to 19, Relevant for our consideration are Sections 7 to 14. Section 7 authorises the District Judge to appoint guardian of the minor if the Court is satisfied that it is for the welfare of the minor. Section 8 lays down that no order appointing a guardian shall be made under Section 7, except on an application of the person desirous of being or claiming to be the guardian of the minor, or of any relative or friend of the minor, or of the Collector of the District in which the minor ordinarily resides, or has property or has authority over the minor. Sub-section (1) of Section 9, which has already been referred to, lays down that an application for the guardianship of the person of the minor snail be filed before the District Court haying jurisdiction in the place where the minor ordinarily resides. I nave already discussed that no other Court has jurisdiction in the matter. Sub-section (2) of Section 9 deals with applications for guardianship of the properties of the minor and lays down that it can either be made to the District Court having jurisdiction in the place where the minor ordinarily resides or to the District Court having jurisdiction in the place where the minor's properties are situate. Sub-section (3) makes it optional for the District Court having no jurisdiction in the place where the minor ordinarily resides, to return the application, if in its opinion, the application would be disposed of more justly or conveniently by any other District Court.
It may be mentioned here that Mr. Singh has conceded that the revocation of the order of appointment of the appellant will not bring into play the operation of subsection (3) of Section 9 of the Act, as it relates to a situation before any order for appointment of the guardian has been made and will not apply to a case after revocation. Section 10 deals with the requirements of form and contents of an application for appointment of a guardian, and has already been quoted and discussed. Section 11 deals with the procedure on the admission of an application. Section 12 deals with the power of the Court to make interlocutory orders for protection of the person and properties of the minor during the pendency of the application. Section 13 deals with the hearing of evidence before making such orders. Then comes Section 14, on which reliance has been placed by Mr. Singh. This Section, with its marginal note, reads as follows:
"14, Simultaneous proceedings in different Court:
(1) If proceedings for the appointment or declaration of a guardian of a minor are taken in more Courts than one, each of those Courts shall, on being apprised of the proceedings in the other Court or Courts, stay the proceedings before itself. (2) If the Courts 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 Courts the proceedings with respect to the appointment or declaration of a guardian of the minor shall be had. (3) In any other case in which proceedings are stayed under Sub-section (1), the Courts shall report the case to, and be guided by such orders as they may receive from, their respective State Governments."
Section 15 deals with appointment or declaration of two or more joint guardians in cases where the law to which the minor is subject so admits. Section 16 deals with the method of appointment or declaration of guardian of properties beyond the jurisdiction of the Court. Section 17 deals with matters to be considered by Courts in appointing guardians and also lays down that the guiding consideration will be the welfare of the minor. Section 18 deals with the appointment or declaration of the Collector as guardian by virtue of his office and Section 19 deals with cases where guardian will not be appointed by the Court.
27. A bare analysis of the aforesaid provisions will show that Section 14 deals with a situation prior to the appointment of a guardian when simultaneous proceedings are pending in different Courts for appointment of guardian. It will also be pertinent to note in this connection that while the application for removal of the appellant from guardianship was pending, there was no application under Section 8 of the Act by any one else in the Purnea Court for appointment as a guardian nor any prayer was made to appoint any other relative or friend of the minor as a guardian, on which alone the power of the Court to appoint a guardian was dependent, even after the order for removal was made. The result was that the guardianship proceeding came to an end and there was no question of revival of the proceeding after the removal order was made, so as to attract sub-section (3) ofi Section 14, as urged by Mr. Singh. The order of removal of the guardian will not revive the proceeding so as to attract Section 14, even if it was possible to uphold the contention of Mr. Singh on the facts and in the circumstances of this case. A prior proceeding for appointment of guardian being already there at Calcutta nothing was left to be done by the Purnea Court.
28. Mr. Singh has lastly urged that the learned District Judge had no jurisdiction to direct the appellant to deliver whatever minor's properties were in her possession or control, and to render necessary accounts to the respondents, until a guardian was appointed by a competent Court. It has already been found that the respondents have custody of the minor and it were they who were dealing with her properties. In such a situation, it was only just and proper, in the interest of the welfare of the minor that the Court, while removing a guardian should direct the restoration of the properties to a person who had custody of the minor and her properties also before the appointment of appellant as guardian by Purnea Court. After the Court found that the appellant's interest was adverse to that of the minor, she had misused the trust reposed in her and she was not capable of discharging the trust reposed in her, the order in question for return of the proper-
ties with accounts was a consequential one which the Court had inherent jurisdiction to pass.
29. In the result, the appeal is dismissed with costs, which I assess at Rupees 200/- (Rupees two hundred.) Lalit Mohan Sharma, J.
30. I agree.