Madhya Pradesh High Court
Smt. Sweta And Another vs Dharma Chand And Another on 12 May, 2000
Equivalent citations: AIR2001MP23, 2001(2)MPHT274, AIR 2001 MADHYA PRADESH 23, (2001) 2 JAB LJ 37, (2001) 2 MARRILJ 342, (2001) 1 MPLJ 89, (2001) 2 CIVLJ 521
ORDER V.K. Agrawal, J.
1. This miscellaneous appeal under Section 47 of the Guardian and Wards Act, 1890 (hereinafter referred to as the 'Act' for short) is directed against the order dated 9-7-1998 in Misc. Civil Suit No. 30/1998 by I Additional District Judge, Sagar, appointing respondent No. 1 Dharam Chand to be the guardian of the person and properly of minor Palak.
2. Facts not in dispute are that the minor Palak is the daughter of deceased Ashok Kumar Jain and respondent No. 2 Smt. Recta. Ashok Kumar Jain was the elder brother of appellant No. 2 Vijay Kumar Jain. Appellant No. 1 is the wile of appellant No. 2. Respondent No. 1 Dharamchand is the father of Recta and thus the maternal grand-father (Nana) of minor Palak. Ashok Kumar Jain, the father of minor Patak met with an unfortunate death in a motor accident on 20-11 -1992. Minor Palak was born on 9-9-1989 and was thus aged about 3 years at the time of death of her father Ashok Kumar Jain. Respondent No. 2 Smt. Reeta has remarried and is residing with her husband at Khargone. Minor Palak is at present residing with her maternal grand-father (Nana), Respondent No. 1 at Khurai, District Sagar.
3. The appellant filed an application on 9-1-95 under Section 10 of the 'Act' for appointment as guardian of person and property of minor Palak. It was averred therein that minor Palak was living in their guardianship and was being brought up by them. However, a month prior to the filing of the application, minor Palak was taken away by respondent No. 1 Dharamchand with him. The respondent No. 1 is thereafter not sending her back. It was also averred that since the respondent No. 2 Smt. Reeta has remarried, the minor cannot possibly reside with her mother. Petitioners/appellants also averred that they intend to bring up and educate the minor, in accordance with their family traditions and the welfare of the minor would be best served in living with the petitioners/appellants. The appellant No. 2 is an educated and a person of means having his own business. He is an income- tax payee. He is in a position to look after the minor in the best possible manner, while the respondent No. 1 is an old man, who would not he in a position to properly bring-up minor Palak. Therefore, the appellant prayed that they be appointed as guardians of the minor.
4. The respondents resisted the application. It was averred in their reply that minor Palak was aged about 6years. She has a right over the ancestral properly of her father, Late Ashok Kumar Jain. It was further averred that the appellants have filed the application to be appointed as guardian of the minor so as to avoid parting with the huge share that minor Palak has in her ancestral property. It was averred by the respondents that after the death of Ashok Kumar Jain on 20-11-1992, the appellants have never cared to enquire and to make provision for the education and her daily needs. The respondent No. 1 is providing and taking care of all the needs of the minor since 1992. It was also averred that the respondent No. 1 has filed a suit in assertion of right of minor Palak over the ancestral property of her father Late Ashok Kumar Jain. The appointment of the appellants as guardian of minor Palak would not subserve the purpose of welfare of the minor, who have evil intentions to grab her share in the property. The appellant and their family members misbehave with and ill-treated the respondent No. 2, the mother of the minor, after the death of her husband, Ashok Kumar Jain. They have turned them out from the matrimonial home. It is further averred that the minor is receiving proper education in an English Medium School and is giving excellent performance. It was, therefore, prayed that the application of the petitioners/appellants for appointment as guardian of minor be dismissed and the respondent No. 1 be appointed as guardian of person and property of the minor.
5. The learned Trial Court framed issues as to whether it would be proper to appoint the appellants as the guardian of the person and property of the minor and also as to whether the respondent No. 1 deserves to be appointed the guardian of the person and property of the minor. It was held that it would not be proper to appoint petitioners/appellants as the guardian of the person and property of the minor, while it was held that respondent No. 1 ought to be so appointed. Accordingly, the petition of the petitioners/appellants under Section 10 of the 'Act' was dismissed and the prayer of the respondent No. 1 was allowed and he was appointed as the guardian of person and property of minor Palak.
6. The learned counsel for the appellants has challenged the impugned-order. It has been submitted that the respondent No. 1 has not filed an application under Section 10 of the 'Act'. Therefore, his prayer for appointment of guardian of the minor without a proper application under Section 10 of the 'Act' was not maintainable. It has been submitted in the above context that provisions of Civil Procedure Code are not applicable to the proceedings under the 'Act' and, therefore, a prayer made by way of counter-claim was not tenable. It has further been submitted that the appellants are the nearest relatives, on the paternal side, of Late Ashok Kumar Jain, being his brother and sister-in- law. They are young persons and they have no children of their own. They are financially well-to-do person and can take care of the education and upbringing of the minor properly. It has further been averred that the respondent No. 2, the mother of the minor has remarried and is, therefore, not in a position to take care and bring up the minor. The respondent No. 1, the maternal grand-father (Nana) of the minor is an old man and would not be in a position to take care of the needs of a young girl and would not be in a position to properly nurture and bring her up. It has further been submitted that though the appellants and the respondent No. 1 belong to the Jain Community, yet the appellant being Swctambar Jain, while the respondent No. 1 being Digambar Jain, they belong to different sects and the minor would face a different religious environment in case of her living with the respondent No. 1.
7. The learned counsel for the respondent has, however, supported the impugned order. It has been urged that there was no prohibition in appointment of respondent No. 1 as the guardian under Section 10 of the 'Act', even if he has not made a separate application under Section 10 of the 'Act'. It has further been submitted that after the death of Ashok Kumar Jain, his wife, the respondent No. 2, was maltreated by he appellants and their other family members. She was forced to leave the matrimonial home alongwith the minor. She has been continuously living with the respondent No. 1 alongwith the minor. As she was widowed at a young age, on the persuasion of the respondent No. 1, she had married, keeping in view her future life. However, the respondent No. 1 is taking due care and bringing up the minor in a proper manner. She is receiving education in one of the best educational institutions and her academic performance is most satisfactory. It has been submitted that as the minor has share in the ancestral property and as the respondent No. 1 served the appellant with a notice dated 2-1-1995 for giving maintenance to the minor. The latter filed the petition under Section 10 of the 'Act' in order to avoid payment of maintenance as well as parting with the share of the minor in the ancestral property.
8. In the instant case, the petitioners/appellants had filed an application under Section 10 of the 'Act'. In reply to the said application, the respondent No. 1 not only resisted their prayer as above for appointment of guardian of the minor, but also prayed that the respondent No. 1 be appointed as the guardian of person and property of the minor. The learned Trial Court though dismissed the application of the appellants and rejected their prayer for appointment of guardian of the minor, but allowed the prayer of respondent No. 1 to that effect. Consequently, the respondent No. 1 has been appointed the guardian of the person and property of the minor. Learned counsel for the appellants raised a preliminary objection that since the respondent No. 1 has not filed a properly constituted application as envisaged under Section 10 of the 'Act', the order appointing the respondent No. 1 as guardian could not have been passed. It has been submitted that since the law prescribes a particular manner by which the guardian could be appointed, the prayer should have been made in that particular way in no other. Therefore, the application as prescribed under Section 10 of the 'Act' having not been tiled by the respondent No. 1, his prayer for appointment of guardian of the minor, could not have been allowed. It has been submitted that provisions of Code of Civil Procedure arc not applicable to the application under the 'Act' and hence the reply filed by the respondent No. 1 could not be treated as a counter-claim also.
9. In view of the preliminary objection as above, it has to be considered whether, without the respondent No. 1 filing an application under Section 10 of the 'Act', the Trial Court was justified in accepting his prayer made in his reply to the petition filed by the appellants for appointing him as a guardian of the minor ?
10. It may be noted that the 'Act' was enacted in order to secure and safeguard the interest of the minor. It is a beneficial legislation and liberal interpretation has to be given in order to advance the object of the 'Act' and intention of the Legislature. Section 7 of the 'Act' lays down that where the Court is satisfied that it is for the welfare of the minor that an order should be made appointing a guardian of his person and property or both, or declaring a person to be such a guardian, the Court may make an order accordingly.
Section 8 of the 'Act' provides that an order shall not be made under Section 7 of the 'Act' except on the application of the persons enumerated therein. which include the person desirous of being appointed as guardian. Section 9 of the 'Act' confers jurisdiction on the District Court to entertain such an application relating to appointment of guardian of the person and properly. Section 10 of the 'Act' lays down that the application shall be made in the form and in the manner enumerated therein. Section 17 of the 'Act' lays down the matters which are to be considered by the Court in appointing guardian. By the said section, it has been in substance provided that the Court, while appointing the guardian shall be guided by what appears in the circumstances to be for the welfare of the minor and in considering what will be the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. It has also been provided that if the minor is old enough to form an intelligent preference, the Court may consider that preference. It is also provided that a person shall not be appointed as guardian of the minor against his will.
11. From the above provisions, it is clear that the jurisdiction and power of the Court for appointment of guardian can only be invoked by filing an application under Section 10 of the 'Act'. In the instant case, the petitioners/appellants had filed an application under Section 10 of the 'Act'. The respondent No. 1 admittedly did not file an application under Section 10 of the 'Act' himself but had in his reply to the petitioners' application, besides praying that the petitioners' application for appointment of guardians be dismissed, further prayed that the respondent No. 1 be appointed as guardian of the minor. As noticed earlier, the objection is that the petition having not -been filed in the manner prescribed by law, prayer in the reply of the respondents for appointment of respondent No. 1 as guardian, could not have been entertained and accepted.
12. In the above context, the learned counsel for the appellants has submitted that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are necessarily forbidden. In support of his contention as above, learned counsel for the petitioner/appellants relied upon Ramchandra Keshav Adke (dead) by L.Rs. Vs. Govind Joti Chavare and others (AIR 1975 SC 915). It has been observed in the said case that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are necessarily forbidden. It was further observed that the rule as above squarely applies where the whole aim and object of the legislature would be plainly defeated, if the command to do the thing in a particular manner did not imply a prohibition to do it in any other. Similarly, in M.P. State Road Transport Corporation, Jabalpur Vs. Jahiram and another (1968 MPLJ 828J, referring to Nazir Ahmed Vs. King Emperor (AIR 1936 P.C. 253) and Uttar Pradesh State Vs. Sinhara Singh (AIR 1964 SC 358), it has been laid down that where a statutory power is conferred for the first time upon a Court, and the mode of exercising it is pointed out, it means no other mode can be adopted.
13. However, as already noted in the instant case, an application under Section 10 of the 'Act' was Tiled by the petitioners/appellants. The respondents resisted the said application and prayed that not only the petition filed by the appellants be dismissed, but the respondent No. 1 be appointed as Guardian. Therefore, the jurisdiction of the Court under Section 10 of the 'Act' was invoked and the Court was seized with the matter of appointment of guardian of the minor. In the context of prayer for appointment of guardian, the Trial Court considered the prayer of the respondent No. 1 also, which was, in fact, two- fold, firstly that the petitioners/appellants be not appointed as guardians and instead he (respondent No. 1) be appointed as the guardian of the minor.
14. Obviously, as noticed earlier, under Section 17 of the 'Act', the District Court after consideration of the various circumstances enumerated therein was required to pass an order regarding the appointment of guardian. In doing so, the claim and counter-claim by the contending parties could have been taken into consideration by the court and proper orders protecting and in furtherance of the welfare of the minor deserved to be passed. In the circumstances, the technical objection taken by the petitioners/appellants cannot be accepted. It may also be noted in the above context that the objection as above was not taken at the earliest by the appellants but was taken only in the written arguments filed after the conclusion of hearing of the matter.
15. It may also be noticed that in Mt. Islaman Vs. Aft. Maqbulan and another (AIR 1924 OUDH 126), it has been observed that Sections 7 and 8 of the 'Act' do not necessarily require that when once proceedings have been instituted on a proper application, a separate application should be taken from the person whom the Court appoints, though in practice it is more usual to take one.
16. Reference may also be made to the Division Bench judgment of the Andhra Pradesh High Court in Chaganlal Vijayawargiya Vs. Astor Quisth and another (AIR 1972 AP 49), wherein, it has been held that since there is no provision in the Guardian and Wards Act or the rules made thereunder on the lines of Order 1 Rule 10, CPC, which provides for impleadment of necessary or proper parties, hence provisions of Order 1 Rule 10, CPC are applicable to the proceedings of the 'Act'. It has further been observed that the proceedings of appointment of guardian under the 'Act' is a very delicate proceeding and any order made in such proceeding is likely to affect one way or the other the future of the child. And it is only from that point of view that the Court is clothed with good deal of powers on one hand and is enjoined on the other to be careful in conducting the proceedings and in passing the final order. It is also manifest that the Court under Section 11(a) (iv) in order to discharge the said obligation effectually can issue notice to any other person to whom, in its opinion, special notice of the application should be given. Persons interested in the minor are allowed to file applications for the purpose of regulating the conduct of the proceedings to obtain specific orders regarding the minor. It has further been held therein that if a person satisfactorily makes out that he is a person, who is interested in the welfare of the child, the Court should not ordinarily hesitate and allow him to go on record as a party in order to render useful assistance to the Court and in properly discharging heavy obligation placed on the Court under the 'Act'. It has further been observed that in such cases, the rigid rules which are ordinarily followed in ordinary litigation have necessarily to be relaxed. It has been laid down in the above case that person, who bona fide comes to the Court to oppose the application or alongwith it prays that he himself be appointed as guardian or seeks custody of the child, should be permitted to do so.
17. It may also be noticed that the Division Bench of the Calcutta High Court in Satyendra Nath Maitra and another Vs. Balaram Chakraborty (AIR 1981 Cal. 206) has observed that the provisions of Sections 10 and 11 of the 'Act' relate to matters of procedure. In case an application is not in conformity with the said provisions, the Court before whom such an application is made, may call upon the applicant to remove the defects in question. In case the applicant fails to comply with such an order, the Court may reject the application for guardianship or custody. However, if no such objection at all is raised in the Trial Court and the said Court passes an order on merit, the party preferring an appeal against such an order ought not to be allowed to contend before the Appellate Court, for the first lime, that the application being defective in form, ought to have been rejected in limine. It has further been observed that on the principles embodied in Section 99, CPC, the Appellate Court legitimately may refuse to reverse or vary the order.
18. In the instant case, the appellants had invoked the jurisdiction of the Trial Court for appointment of guardian. The respondent No. 1 objected to their prayer and also prayed that he be appointed as guardian of the minor. No objection by the petitioners was raised regarding the prayer as aforesaid of the respondent No. 1 till the conclusion of the trial. At the fag-end, an objection appears to have been raised in the written arguments of the petitioners. Moreover, it is clear that the respondent No. 1 is the maternal grand-father (Nana) with whom the minor is residing almost immediately after the death of her father. In the circumstances, he is obviously a person closely related to the minor and, therefore, a person interested in her welfare. He was, therefore, entitled to raise the plea, as he did. No technical objection in the prayer made by him could be raised, because the appointment of guardian of a minor is to be considered in the perspective of his or her ultimate and best welfare. In doing so, the District Court can consider a prayer even made by the respondents and can allow the same, if it considers it proper to do so, in view of the various considerations enumerated in the 'Act'. Accordingly, the preliminary objection as above that the respondent-No. 1 not having filed an application under Section 10 of the 'Act', his prayer for appointment of guardian of the minor, could not have been allowed, does not deserve to be accepted.
19. Now coming to the merits of the case regarding the appointment of guardian of the minor, the relevant consideration is as to what would be the best interest and welfare of the minor ?
20. Considering the evidence and material in the case, it may be noted that the minor was aged about 3 years at the time of death of her father. The statement of Dharamchand, respondent No. 1, is that after the death of Ashok Kumar Jain, the father of the minor, the minor and her mother, the respondent No. 2 were being maltreated by the in-laws. They were being neglected and their needs were not being taken care of. The in-laws started misbehaving with respondent No. 2 Dharamchand (NAW 1) further states that, therefore, he brought the respondent No. 2 and her minor daughter Palak with him. Dharamchand (NAW 1) further states that considering the future life that lay ahead, he persuaded the respondent No. 2 to remarry. He has further stated that the minor is living with him. She is being properly educated and looked after. The school certificate (Ex. A-1) has been produced by him. The said certificate shows the performance of the minor. It also appears from the statement of Dharamchand (NAW 1) that he has served a notice (Ex. A-3) dated 2-1-1995 for providing maintenance @ Rs. 500/- per month. It appears that immediately thereafter, the present application under Section 10 of the 'Act' was filed by the petitioner seeking to be appointed as guardians of the person and property of the minors.
21. It would, therefore, be obvious from the evidence on record that the minor alongwith his mother, the respondent No. 2 were maltreated after the death of Ashok Kumar Jain the father of the minor by the in-laws including the petitioners/appellants. The minor and her mother were forced to leave the matrimonial home. It also appears that for a period of three years, after the death of Ashok Kumar Jain, the petitioners did not file the petition for being appointed as guardians. However, as soon as a notice for providing maintenance was served by the respondent No. 1, the petition under Section 10 of the 'Act' was filed post-haste by the petitioners/appellants.
22. It also appears from the material and evidence on record, as discussed in detail by the learned Trial Court, that till filing of the petition, the petitioners/appellants did not care to look after the minor or her mother. They did not feel concerned about the education, upbringing and welfare of the minor before filing of the petition. She was all along taken care of by the respondent No. 1. It may also be noticed in the above connection that the respondent No. 1 has already filed a suit claiming right of the minor in the ancestral property. Therefore, as has been observed by the learned Trial Court, the intent and purpose behind the petition under Section 10 of the 'Act' filed by the petitioners is to avoid giving maintenance and also to avoid their liability in parting with the share in the ancestral properly of the minor.
23. The above conduct of the petitioners/appellants does not go to show that they are really interested in the welfare and upbringing of the minor. Had it been so, they would have taken care to do so, after the death of Ashok Kumar Jain, the father of the minor. Instead of doing so, they misbehaved and maltreated the minor and her mother, forcing them to leave the matrimonial home. Therefore, the petitioners do not appear to be interested in the welfare and well-being of the minor Palak.
24. As against this, the respondents' evidence indicate that the respondent No. 1 is a well-to-do person and has his own business. He is income-tax payee. He is interested in the proper upbringing of the minor. She, in fact, is receiving education in a good institution and giving a good performance. The learned Trial Court has also considered the various circumstances and the relative merits of the claims of the contending parties and has rightly concluded that the welfare of the minor would be best subserved by appointing the respondent No. 1, as the guardian of the minor.
25. It may, however, be noted that the learned Trial Court has appointed the respondent No. 1 as the guardian of the person and property of the minor. It is further to be noticed that the Hindu Minority and Guardianship Act, 1956 has been enacted by the Parliament. Section 2 of the said Act lays down that the provisions of that Act shall be in addition to and not, save as expressly provided, in derogation of the Guardian & Wards Act, 1890. Section 12 of the Hindu Minority & Guardianship Act, 1956 provides that where a minor has undivided interest in the joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such an undivided interest, though the proviso to the said section gives a power to the High Court to appoint a guardian in respect of such interest.
26. In view of the provision of Section 12 of the 'Act' as above, the Trial Court could not have appointed the respondent No. 1 as guardian of the undivided interest in the property of the minor. It also appears that the respondent No. 1 has already filed a suit asserting the right of the minor in the ancestral property of her father. However, till the decision of the suit, there appears to be no justification for appointment of respondent No. 1 as the guardian of undivided interest of the minor in the joint family property. To that extent, the Trial Court's order deserves modification.
27. Accordingly, this appeal is partly allowed. Though the order of the learned Trial Court for appointment of respondent No. 1 as guardian of the person of the minor Palak is upheld and confirmed, but the impugned order, so far as it directs appointment of respondent No. 1 as guardian of the property of the minor, the same is set-aside, so far as the undivided interest of the minor in the joint family property is concerned. The parties, in the circumstances of the case, shall bear their own costs of this appeal.
28. Misc. Appeal partly allowed.