1. The facts of the case will be clear from the following pedigree:
2. Sarju Rai's son Babban Rai had not been known for more than past 11 years and will be presumed to be dead, and his grandson Avad Behari had pre-deceased him. In 1953, in Sarju Rai's family, besides Sarju Rai there were only Smt. Pyari widow of Babban Rai, Smt. Pana widow of Avad Behari and Kumari Radhika great grand-daughter of Sarju Rai. Smt. Dulari the daughter of Sarju Rai was married to Jamuna Prasad whose sons are Shambhu Saran and Bhairon Prasad. On 13-3-1953 Sarju Rai executed a deed of gift regarding Barnai property in favour of Shrimati Piari, Shrimati Pana, Kumari Radhika and one Ram Asre. This Ram Asre is the son of Janta Rai and was sunnosed to be the would be husband of Kumari Radhika but marriage was not performed and has not been performed so far. On 21-2-1950 Suit No. 2253 of 1956 was filed by Sarju Rai for cancellation of the deed of gift qua Ram Asre Rai. It was mentioned in the plaint of that suit that after the coming into operation of the Hindu Women's Right to Property Act Shrimati Piari and Shrimati Panna had the right over the land and they had been living with the plaintiff, that he had no concern with Ram Asre defendant No. 1, nor any marriage had been settled of his great grand-daughter with him. Defendant No. 2 father of the defendant No. 1 got signature over certain papers and got fraudulently the deed of gift executed.
3. It was, therefore, prayed that the deed of gift dated 13-3-1953 executed by Sarju Prasad would not give any right in favour of defendant No. 1, that is, Ram Asre and that it be declared by means of a decree that the plaintiff and Shrimati Piari, Shrimati Panna and Kumari Radhika are in possession over the property. A few days after the filing of the suit on 17-3-1956 Sarju Rai executed another deed of gift in favour of the sons of Jamuna Prasad, that is, Shambhu Saran alias Jai Shankar Prasad and Bhairon Prasad. This related to Koria property which was not the subject of the deed of gift of 13-3-1953. Soon after the execution of this deed of gift on 17-3-1956 Sarju Rai died. Four applications were made for substitution of names.
4. One was made by Shrimati Piari who was already a defendant. The second was made by Shrimati Panna who was also already a defendant. The third was made by one Chhumman Rai, who claimed to be a collateral of Sarju Rai but he was no relation of the deceased and no relationship was disclosed. The 4th application was made by Shrimati Dulari and her sons Shambhu Saran alias Jai Shankar Prasad and Bhairon Prasad. The learned Munsif on 8-1-1957 substituted the name of Shrimati Panna and Shrimati Piari as legal representatives of the deceased Sarju Rai and dismissed the application of Chhumman Rai and of Shrimati Dulari and her sons. Against that order Jai Shanker Singh v. Ram Asre Rai, Civil Revision No. 214 of 1957 (All), has been filed which has also been listed before me and is being disposed of by a separate order. In this revision sons of Shrimati Dulari and Jamuna Prasad had relied on a will, which is alleged to be contained in the deed of gift dated 17-3-1956.
5. During the pendency of the suit a compromise was arrived at on 17-1-1957 between Shrimati Pana, Shrimati Piari on the one side and Ram Asre and his father Janta Rai on the other by virtue of which it was agreed that the property of Barnai would be deemed to be the property of Piari and Pana and Ram Asre and Janta Rai would have no concern with the property and that Piari and Pana would pay a sum of Rs. 2,000/- to Ram Asre partly which had been taken by them and for which a promissory note was executed by the ladies in favour of Janta Rai. Kumari Radhika was absolved in that suit.
6. On 4-2-1957 suit No. 403 of 1957 has been filed by Jamuna Prasad as next friend of Kumari Radhika claiming that the compromise entered into by Srimati Piari and Pana was not binding on the minor Kumari Radhika.
7. On 15-2-1957 Suit No. 789 of 1957 has been filed by Shrimati Piari and Pana for the cancellation of the deed of gift dated 17-3-1956 regarding the Koria property possibly on the ground that had been obtained by undue influence and pressure. It appears that Kumari Radhika became the bone of contention and both parties wanted to retain control over her and her property.
8. For some time before Kumari Radhika had been sent to Shrimati Dulari and she had been living with them at Shahabad in Bihar, an application was moved on 27-4-1957 by Shrimati Pana for the guardianship of the person and property of Kumari Radhika. That application was opposed by Jamuna Prasad husband of Shrimati Dulari and he contended that the right person to be appointed as a guardian was Jamuna Prasad and not Shrimati Pana and the ground alleged by him against Smt. Pana as guardian were:— firstly, that she was not a woman of character and the second ground was that her interest was adverse to that of the minor. Both these grounds were repelled by the Civil and Sessions Judge who heard the application for guardianship and Smt. Pana was appointed guardian of the person and property of Kumari Radhika. Against that order the present F.A.F.O No. 191 of 1958 has been filed.
9. Before I deal with the First Appeal from Order I might mention that on 3-1-1958, a complaint was filed by Smt. Pana against Jamuna Prasad under Ss. 363, 366 and 420, I.P.C on the ground that the girl had been taken away by them. The complaint has been proceeding in the Court below but an application has been filed by Jamuna Prasad in this Court for quashing of those proceedings and a separate order is being passed on the application.
10. The grounds on which the order passed by the District Judge appointing the mother as the guardian is challenged are, firstly, that the mother was of bad character and the finding of the Court below is incorrect; secondly, that the wishes of the girl had not been obtained though she was above 13 or 14; and thirdly, that the interest of the mother was adverse to that of the minor therefore, she was not a fit and proper person to be appointed guardian of the minor Kumari Radhika. I will deal with these questions seriatim.
11. Ordinarily the natural guardian should be appointed the guardian under the Guardians and Wards Act. It is only when he is found to be unfit, or his interests are against the interest of the minor or in very exceptional circumstances, and when the minor can be benefited substantially if somebody else is appointed as guardian that a person other than a natural guardian should be appointed guardian for the person of the minor. Here there cannot be any doubt that so far as the appellant is concerned, he is very distantly related. He is the husband of the sister of the grandfather of the minor. As regards loose morals of the respondent Smt. Pana, there does not appear to be any evidence on the record worth the name. Such irresponsible allegations are often made by persons to serve their object. I accordingly hold that there is nothing on the record to show that the character of Smt. Pana was loose and I agree with the finding of the Court below on this point.
12. The second question whether the wishes of the minor should have been obtained does not in the present case vitiate the order. The girl had been living for some time with Jamuna Prasad and was under his influence and, therefore, the Court did not think it proper to question at that stage. She would naturally depose against her mother at the present moment. If she had been with her mother for some time, probably she would have said otherwise. Therefore, much reliance cannot be placed on the wishes of the girl at this moment.
13. It was alleged that after the death of Sarju Rai all the property belonged to Kumari Radhika and by that compromise Piari and Pana have become the owners, therefore, the interest of Pana is adverse to that of the minor. I do not see that this argument has any force. So long as Smt. Pana and Smt. Piari are alive Kumari Radhika has no interest in the property. It will be after the death of Smt. Pana that she will be entitled to the interest of Avad Behari's share or Babban Rai's share. So long as Smt. Pana and Smt. Piari are alive, a daughter in the family has no interest. Therefore, when Piari and Pana compromised in the previous case it cannot be said that they had created any interest adverse to that of Kumari Radhika. A statement on behalf of Smt. Pana had been made at the Bar that Smt. Pana would be prepared to execute a deed in favour of Kumari Radhika that she will be the owner after her death and that she will not make any transfer of the property. Smt. Pana has no other heir or interest except Kumari Radhika and apparently there appears to be no reason why she will not keep all the property for her daughter.
14. It was further alleged that by execution of the promissory note by Smt. Pana she had encumbered Kumari Radhika with a sum of Rs. 2,000/-. That promissory note would not be binding upon Kumari Radhika and on that account also her interest cannot be said to be adverse.
15. On the other hand, if there is any interest adverse to the minor, it can be said to be that of Shambhu Saran and Bhairon Prasad. After Jamuna Prasad, the Koria property belonged to this family and after the death of Sarju Rai, Piari and Pana would have interest in the property as they were living with Sarju Rai and cultivating with him. That property having gone out of the family and the deed of gift, by virtue of which Jamuna Prasad's son got that property being challenged in a suit, certainly shows that Shambhu Saran and Bhairon Prasad would be interested in depriving the family of the Koria property which, otherwise, may have come to the family of Kumari Radhika. Thus so far as the point of interest of the minor is concerned, Jamuna Prasad has an adverse interest, not Smt. Pana. By the above observation I do not in any way want to express my opinion about the validity or invalidity of the deed of gift.
16. The Court below has further taken the fact into consideration that the minor was being educated in a school when she was living with her mother. But since she has gone to Jamuna Prasad her studies have been discontinued. That fact again is a factor in favour of the respondent. Therefore, taking all the facts into consideration, if the order of the Court below was not without jurisdiction, it cannot be challenged on merits, and it is a perfectly good order.
17. The legal point argued by learned counsel was about jurisdiction of the District Judge at Decria. It was argued that since at the present moment the minor is residing in the district of Shahabad in the province of Bihar, the District Judge, Deoria had no jurisdiction. Reliance was placed on the wording of Sections 9 of the Guardians and Wards Act. Sub-section (1) reads as follows:
“9(1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.”
18. It was contended by learned counsel for the appellant that as at the present moment the minor is residing in Shahabad, her “ordinary place of residence” should be deemed to be Shahabad and not Deoria. Reliance was placed by learned counsel for the appellant on Chimanlal Ganpat v. Rajaram Maganchand Oswal, AIR 1937 Bom 158, where it was held that
“In order to give the Court jurisdiction the minor must be ‘ordinarily resident’ within the local limits of the jurisdiction. That is provided, so far as appointment of a guardian is concerned, by S. 9(1) and as regards S. 25 the word ‘Court’ is mentioned there and ‘Court’ is defined in S. 4(5) as the District Court having jurisdiction in the place where the ward for the time being ordinarily resides.”
19. And on the basis of the above observation and also on account of the fact that in that case since at the time when the application was made the minor was residing with the opponents, it was held that was the place of the minor's residence.
20. In my opinion the words “ordinarily resident” have a different meaning than “residence at the time of the application.” Both may be identical or may be different. That would depend on the facts of each particular case. To interpret the words “where the minor ordinarily resides” to mean “where the minor actually resides at the time of the application” may in some cases amount to rendering nugatory all the provisions of the Guardians and Wards Act.
21. It may be that persons who have absolutely no right may remove the minor forcibly and keep him at a distant place, when the application is made, where the minor was ordinarily residing, and objection may be taken that the application was not entertain able. In that event, the residence may depend on the machinations of recalcitrant persons. It may be that in the Bombay case on the facts the Bench had come to the conclusion that the place where he was residing at the time of the application, was the place, where he was ordinarily residing. But it cannot be held as a proposition of law that it will always be the same.
22. In Lalita…(Objector); v. Paratma Prasad…(Applicant).*, AIR 1940 All 329, this Court had held that
“The fact that a minor is found actually residing at a place at the time the application is made does not determine the jurisdiction. It must be proved where the minor ordinarily resides, as laid down in S. 9(1).”
23. In that case it had happened that the appellant had taken away the minor to Shadiabad, where her parents resided only three or four months before the application was made. Before that the minors and their mother had been living for several years in Benares, and it was further held that though three or four months before the application the minor was residing at Shadiabad, the District Judge, Benares had jurisdiction where the minors had been formerly living with their mother.
24. Reliance was also placed by learned counsel for the appellant on two decisions of this Court, Ram Sarup v. Chimman Lal, AIR 1952 All 79 and Smt. Kamla v. Bhanu Mal, (S) AIR 1956 All 328, which is my decision. These were both cases under Sections 14 of the Guardians and Wards Act, where the Court had to decide, in case of two simultaneous proceedings in different Courts, where the proceedings should continue. In the case of AIR 1952 All 79, their Lordships came to the conclusion that the place of residence of the minor at the time of the application should be held to be the place where they resided with their mother.
25. That was not on account of the fact that they were actually residing at that time, but because it was thought that was the minor's place of residence. Again, under Section 14 of the Guardians and Wards Act it is not necessary in case of two simultaneous proceedings that proceedings should be allowed to continue only at the place where the minor at the time resides. That may be one of the criteria to determine, where the proceeding should be allowed to continue. But in spite of that fact the Court can order the proceeding to continue at any other place.
26. In (S) AIR 1956 All 328 I had held that
“The power given under S. 14 is very wide in its nature. While exercising the power under S. 14 the residence of the minors is not the only or sole consideration which the High Court is bound to take in deciding the forum where the proceedings are to continue. Section 9 does not restrict the wide powers of the High Court.”
27. In that case the mother had left the place, where she had been residing as a permanent resident for good and went to some other place and lived there for a considerable time. Her children who were living with her also went there. Under those circumstances it was held that the place where the minors “ordinarily resided” was the place where they were living last with their mother and it was held that the past abode, for however long a period it may be, could not be considered to be the place where the minors were ordinarily residing. On the basis of the facts of that case it was said that though in the present case also the minor may have resided considerably long with her mother in Deoria yet since she was residing at that time at Shahabad, it should be deemed that she was ordinarily residing at Shahabad.
28. It may be mentioned that the latter residence whether for a long period or for a short period, will also not make the residence of the minor the ordinary place of residence. The entire circumstances, the intention with which the minor had been removed, the person with whom the minor has been living and other relevant factors have to be taken into consideration. In the present case the minor had been removed only recently, since the dispute about the property had arisen with the object of getting hold over the minor and over her property. I do not think that in the present case it can be said that the minor ordinarily resided at Shahabad.
29. Reliance was also placed on the well-known case of Annie Besant v. Narayaniah, ILR 38 Mad 807 : (AIR 1914 PC 41). In that case the minors had been given in the custody of the appellant Mrs. Annie Besant, who had sent them to the University of Oxford for education. On the facts and circumstances of that case their Lordships came to the conclusion that the ordinary residence of the minors was in Oxford and not at Chingelput. It appears that the decision was on the particular facts and circumstances of that case. A temporary residence, howsoever long it may be, could not be treated as the ordinary place of residence. That was also held by a learned single Judge of this Court in Chandra Kisbore v. Smt. Hemlata Gupta, (S) AIR 1955 All 611, where he held that
“The words ‘ordinarily resides’ obviously mean more than temporary residence, even though such residence is spread over a long period.”
30. In that case the dispute was between the father and the mother and since the father was the natural guardian his word was given preference regarding the residence over that of the mother and on the analogy of that authority here the mother being the natural guardian also her allegation that the minor was ordinarily residing with her should be given preference. In my opinion, taking all the circumstances into consideration I think in the present case the minor had been ordinarily residing at Deoria and, therefore, the Court had jurisdiction.
31. There may be another difficulty in appointing the appellant as the guardian. He admittedly does not reside within the jurisdiction of the District Judge, Deoria. Ordinarily a person who is not a resident within the jurisdiction of the Court should not be appointed a guardian of the minor. Whether legally he may be appointed or not is a matter on which there is divergence of opinion. In Asghar Ali v. Amina Begam, AIR 1914 All 541, it was held that;
“The Guardians and Wards Act contemplates that the person who applies for the guardianship of a minor should reside within the jurisdiction of the Court to which he makes the application”.
32. But this decision did not find favour with another Bench of this Court in Beni Prasad…(Applicant); v. Parbati…(Opposite Party).*, AIR 1933 All 780. There they said that what the learned Judge had expressed was merely that ordinarily a person not residing within the jurisdiction of the District Court should not be appointed. They did not negative the proposition that a person not residing within its jurisdiction could apply, but in making the appointment the Court shall give due weight to that circumstance. Taking that fact into consideration, though there may be no legal bar, yet I think that fact also disentitles the appellant from being appointed a guardian. I, therefore, see no force in this appeal and accordingly dismiss it with costs. The appellant shall within a period of one month deliver the minor to the respondent, failing which it will be open to the respondent to take proceedings under the Guardians and Wards Act for the recovery of the minor.
KC/V.R.B
33. Appeal dismissed.