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Narinder Singh v. General Public
Structured Summary of the Opinion by R.S. Narula, J.
Factual and Procedural Background
Major Gurdial Singh Sandhawalia died on October 14, 1962. His minor daughter, Sonia (born April 10, 1962), came to live with her mother, Shrimati Amarjit Kaur. After 1962 Amarjit Kaur was living with her father Narinder Singh, who was at that time posted as Extra Assistant Commissioner at Ambala.
On October 23, 1965, Narinder Singh filed an application in the Guardianship Court at Ambala under Section 10 of the Guardians and Wards Act, 1890 seeking appointment as guardian of Sonia (person and property). On May 13, 1966, Harbans Singh (the paternal grandfather) made a similar application in the Guardianship Court at Jullundur. Once each Court became aware of the other proceeding, both Courts stayed their proceedings under sub-section (1) of section 14 of the Act and the Ambala Guardian Judge referred the matter to the High Court under sub-section (2) of section 14 for a decision about which subordinate Court should proceed.
Relevant factual details before the High Court included:
- Any Chandigarh property previously of the minor has been sold; proceeds stated to have been received by the minor's mother.
- The minor is entitled to an educational grant of about Rs. 360/- per annum from the Government of India.
- The only other property in which the minor had an interest is ancestral property of her deceased father located in Jullundur district.
- At the time the applications were made, the minor was residing with her mother at 38 Model Town, Ambala City; both sides admitted this. There is no record of the minor residing anywhere else after the father's death until a subsequent transfer.
- During the pendency of proceedings, Narinder Singh was transferred from Ambala to Patiala, and Amarjit Kaur (the mother) and the minor Sonia moved to Patiala with him.
The sole procedural question referred to the High Court was which of the two subordinate Courts (Ambala or Jullundur) should adjudicate the guardianship of Sonia under the Act.
Legal Issues Presented
- Which of the two subordinate Courts (Ambala or Jullundur), both of which had proceedings pending under the Guardians and Wards Act, 1890, should the High Court select under sub‑section (2) of section 14 to determine the guardianship of the minor?
- To what extent should the considerations in section 9 (ordinary residence of the minor and location of the minor's property) constrain the High Court's power under section 14(2) when selecting the forum?
Arguments of the Parties
Narinder Singh (applicant in Ambala)
- Narinder Singh's application was filed in Ambala where the minor was residing with her mother at the time of his application; he relied on the principle that applications for guardianship of the person should be made to the District Court where the minor ordinarily resides (section 9(1)).
- Mr. N.S. Grewal, counsel for Narinder Singh, referred to Uttam Singh v. Thakar Singh and other authorities to support the view that where minors actually reside at A, the application should be made in the Court at A even if the father (or paternal property) is at B.
- Mr. Grewal further submitted (relying on observations by Mottham, J. in Ram Sarup v. Chimman Lal) that the High Court ought to be guided by the question of jurisdiction under section 9 and should not, by exercise of powers under section 14, vest a subordinate Court with jurisdiction it would not ordinarily possess.
Harbans Singh (applicant in Jullundur)
- Harbans Singh filed in Jullundur where the minor had interest in ancestral property; his written reply in the Ambala Court admitted the factual residence at Ambala was temporary and that the mother and child were staying with Narinder Singh only "temporarily in Model Town, Ambala."
- Mr. Mohinderjit Singh Sethi, counsel for Harbans Singh, relied upon the judgment of Bhargava, J. in Smt. Kamla v. Bhanu Mal to contend that while the High Court should consider the residence of the minor, it is not the sole consideration and the High Court's wider powers under section 14(2) are not restricted by section 9.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Uttam Singh v. Thakar Singh, 157 I.C. 941 | Stated that where minors actually reside at A, the guardianship application should be made in the Court at A even though parents/ancestral lands are at B; a minor residing about a year at A with mother deemed ordinarily resident there (as cited in the opinion). | The opinion records counsel's reliance on this authority for the proposition that actual residence determines ordinary residence; used as part of the discussion of section 9(1). |
| Mst. Firoza Begum v. Akhtaruddin Laskar, A.I.R. 1963 Assam 193 | The opinion cites the case but does not specify in the text what specific rule or principle was relied upon from it. | The judgment is listed among authorities referred to by counsel; the opinion does not elaborate on its application. |
| Sarda Nayar v. Vakara Amma, A.I.R. 1957 Kerala 158 | The opinion cites the case but does not specify in the text what specific rule or principle was relied upon from it. | The judgment is listed among authorities referred to by counsel; the opinion does not elaborate on its application. |
| Lakshman Moreshet v. Gangaram Narayan, A.I.R. 1932 Bom. 592 | The opinion records that this case held considerations of convenience are relevant only when the minor ordinarily resides in two districts; if the minor resided in only one district, that Court alone had jurisdiction. | The Court cites this authority to note the limits of convenience considerations when ordinary residence is confined to one district; used in evaluating whether Ambala retained relevance. |
| Ram Sarup v. Chimman Lal, A.I.R. 1952 All. 79 | Contains observations (by Mottham, J., quoted) expressing hesitation about the High Court using section 14 to vest jurisdiction in a subordinate Court that would not ordinarily possess it; suggests the High Court should be guided by jurisdictional considerations. | Counsel for Narinder Singh relied on these observations. The opinion records the quotation and notes that Sapru, J. (main judgment) did not subscribe to the strict view attributed to Mottham, J.; the Court considered but did not adopt the strict limitation urged by counsel. |
| Smt. Kamla v. Bhanu Mal, A.I.R. 1956 All. 328 | Bhargava, J. held that while exercising power under section 14 the residence of the minor is not the only or sole consideration and that section 9 does not restrict the wide powers of the High Court under section 14(2). | The opinion expressly aligns with Bhargava, J.'s view and relies on it to support the conclusion that the High Court may consider the convenience and interest of the minor beyond a strict application of section 9. |
Court's Reasoning and Analysis
The Court's analysis proceeded in the following steps, grounded in the text of the Guardians and Wards Act, 1890:
- The Court set out the controlling statutory provisions: section 9 (jurisdiction for guardianship applications — section 9(1) for guardianship of the person: the District Court where the minor ordinarily resides; section 9(2) for guardianship of property: either the Court of ordinary residence or a Court where the minor has property) and section 14 (procedures when proceedings are pending in more than one Court and the High Court's role under section 14(2)).
- The High Court observed that under section 14(2) its power is confined to selecting one of the subordinate Courts in which proceedings were pending at the time of the reference; it cannot order the case to be decided by a Court in which proceedings were not pending.
- Turning to section 9, the Court noted that at the time the rival applications were made the minor was ordinarily residing at Ambala (admitted by both sides). However, subsequent factual developments (transfer of Narinder Singh to Patiala and the movement of the mother and minor to Patiala) meant the minor had not resided at Ambala for about one year and was unlikely to return to Ambala during the pendency of the dispute.
- The Court contrasted the two relevant considerations under section 9(1) and section 9(2): ordinary residence favored Ambala at the time of the initial applications, whereas the locus of the minor's property favored Jullundur (ancestral property situate in Jullundur; no part of the minor's property was in Ambala).
- The Court considered competing judicial views on the scope of the High Court's discretion under section 14(2). It recorded counsel's reliance on Mottham, J.'s observations in Ram Sarup to argue that the High Court should not confer jurisdiction upon a subordinate Court that would not ordinarily possess it. The Court noted that Sapru, J. (the main judgment in Ram Sarup) did not fully endorse Mottham, J.'s view.
- The Court expressly embraced the view in Smt. Kamla v. Bhanu Mal (Bhargava, J.) that the residence of the minor is not the sole consideration when the High Court exercises its power under section 14(2); section 9 does not completely restrict the High Court's discretion. The Court described the main consideration as the convenience and interest of the minor, subject to statutory restrictions.
- Applying those principles to the facts, and given that the minor was no longer in Ambala, that no part of her property was in Ambala, and that Ambala had been the temporary location due to Narinder Singh's posting (from which he had been transferred), the Court concluded there was no reason to prefer Ambala to Jullundur.
- On that basis the Court decided that the dispute should be adjudicated by the Guardianship Court at Jullundur and ordered transfer of the proceedings pending before the Ambala Court to Jullundur.
Holding and Implications
Holding: The High Court allowed the petition and ordered that the proceedings with respect to the appointment or declaration of guardian of the person and property of Sonia (the minor) shall be held in the Guardianship Court at Jullundur. The proceedings pending in the Ambala Court were ordered to be transferred to the Guardianship Court at Jullundur. The Court made no order as to costs of the reference.
Implications:
- The direct effect is that the Jullundur Guardianship Court will determine the guardianship dispute; the Ambala proceedings are to be transferred there.
- The decision reflects the High Court's exercise of discretion under section 14(2) to select between subordinate Courts where proceedings were pending, taking into account the convenience and interest of the minor and not being strictly confined to the literal application of section 9 in every case.
- The opinion does not state that it establishes any new binding precedent beyond the application of existing statutory provisions and the approach adopted to weigh residence and property considerations under the Act.
Order: Petition allowed; case transferred. No order as to costs.
R.S Narula, J.:— The circumstances in which the Senior Subordinate Judge, Ambala, has made this reference under sub-section 2) of section 14 of the Guardian and Wards Act 18 of 1890) (hereinafter called the Act) are these: Major Gurdial Singh Sandhawalia son of S. Harbans Singh Sandhawali was married to Shrimati Amarjit Kaur daughter of Shri Narinder Singh. Major Gurdial Singh having deid while in active service on October 14, 1962, during the Chinese aggression, his minor daughter Miss Sonia (who had been born on April 10, 1962) came to live with her mother Shrimati Amarjit Kaur. It is not disputed that since after 1962. Shrimati Amarjit Kaur was living with her father Narinder Singh who was at that time posted as Extra Assistant Commissioner at Ambala. On October 23, 1965, Narinder Singh filed an application in the Guardianship Court at Ambala under Section 10 of the Act for his being appointed as guardian of the person and property of Miss Sonia. On May 13, 1966, Harbans Singh, the paternal grandfather of the minor made a similar application in the Guardianship Court at Jullundur. The application pending in one Court leaving been brought to the notice of other Court the proceedings in both the Courts were stayed under sub-section (1) of section 14 of the Act. It is in this situation that the Guardian Judge at Ambala has made the present reference for a decision of this Court as to which of the two Courts should proceed to decide the dispute between Narinder Singh and Harbans Singh relating to the guardianship of person and property of their ??? grand daughter. The reference has been made without giving any decision as to the place where the minor was ordinarily resident. Though originally the minor had some interest in some property at Chandigarh, the said property has been sold out and the share of the minor therein is stated to have been received by her mother. The minor is entitled to receive an educational grant of about Rs. 360/- per annum from the Government of India. The only other property in which the minor is said to have any interest is the ancestral property of her deceased father which is situate in Jullundur district. This clearly shows that no part of the property of the minor is situate in Ambala district. At the same time it is clear from averments made in paragraph 4(a) of Narinder Singh's application that the custody of the minor at the time of his making the application was with the minor's mother who was at that time residing in 38, Model Town, Ambala City. In the corresponding paragraph of the written reply filed by Harbans Singh in the Ambala Court the correctness of the allegation made by Narinder Singh is admitted and it has been added that the mother of the minor was only staying with her lather, i.e with Narinder Singh “temporarily in Model Town, Ambala.” It has not been shown any where on this record that the minor ever resided after the death of her father at any place other than Ambala. It is, however, the common case of both sides that during the pendency of these proceeding Narinder Singh who was staying at Ambala only on account of his appointment as Extra Assistant Commissioner there has been transferred during the last year to Patiala and that his daughter Amarjit Kaur along with her minor daughter Sonia is now living at Patiala, on account of the official residence of Narinder Singh being there. It is in this situation that I am called upon to decide as to which of the two Courts (Ambala or Jullundur) should adjudicate upon the dispute between two grandfathers as to the guardianship of the person and property of the minor.
2. Section 9 of the Act defines the Court which has jurisdiction to entertain applications under the Act in the following words:—
“(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.
(2) If the application is with respect to the guardianship of the property of the minor it may it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where be has property.
(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.”
3. The only other provisions of the Act which is relevant for answering this reference is section 14 which is reproduced below:—
“(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 appraised 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.”
From a reading of sub-section (2) of section 14, it appears that while giving a decision on a report made under that provision to the High Court, no order can be made for the cases in question being decided by any Court in which no proceedings were pending at the time of the reference. The jurisdiction of the High Court under sub-section (2) of section 14 of the Act is confined to selecting one of the two or more Courts in which proceedings under the Act were pending at the time of the reference or may indeed be pending till the decision of the reference by the High Court. That being so I have only to decide whether in the circumstances of the case the dispute between the parties should be decided by the Jullundur Court or the Ambala Court.
4. Under Section 9 of the Act, an application in respect of guardianship of the person of a minor has to be made to the District Court having jurisdiction in the place where the minor ordinarily resides on the facts of this case, the minor was ordinarily residing at Ambala at the time when the two rival applications were made. Under sub-section (2) of section 9, if the application is with respect to the guardianship of the property of the minor, it may be made either to the District Court in whose jurisdiction the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property. Out of Ambala and Jullundur the minor in the instant case can be said to have some property in Jullundur but admittedly none in Ambala. If Narinder Singh had not been transferred from Ambala, and the minor had continued to reside at Ambala, I would have been inclined to prefer the Ambala Court to the Jullundur Court. Mr. N.S Grewal, the learned counsel for Narinder Singh, has referred to the judgment of the Lahore High Court in Uttam Singh v. Thakar Singh . 157 I.C 941., wherein it was held that where the minors actually reside at A, the application should be made in Court at a even though the father of the minors had ancestral lands at B. It was further held in that cease that when it was proved that the minor had resided with his mother at a for about one year and that there was no evidence of his residence elsewhere, application for guardianship could be entertained in the Court at a as the minor would be deemed to be ordinarily residing at that place. Counsel has also referred to the following other judgments:—
1. Mst. Firoza Begum v. Akhtaruddin Laskar . A.I.R 1963 Assam 193..
2. Sarda Nayar v. Vakara Amma . A.I.R 1957 Karala 158..
Lakshman Moreshet…Applicant; v. Gangaram Narayan…Opponent. . A.I.R 1932 Bomb. 592..
In the last mentioned case it was held that considerations of convenience are relevant only when the minor ordinarily resides in two districts and in case the minor resided only in one district, the Court in that district alone had the jurisdiction. In the face of the facts already stated above, it cannot be stated with any fairness that the previous residence of the minor at Ambala can be a relevant consideration for determining this dispute. The minor has admittedly not resided at Ambala for the last one year and there is no reason to believe that she would ever reside again at Ambala during the pendency of the guardianship dispute. The was at Ambala because her maternal grandfather was posted there. On the recognisation of the erstwhile State of Punjab, Narinder Singh has been allocated to the State of Punjab. Ambala being in Haryana there is no likelihood of Narinder Singh being re-posted to that place. The consideration of the ordinary residence of the minor is, therefore, now irrelevant in so far as the contest lies between the Court at Jullundur on the one hand and Ambala on the other. Mr. Grewal has submitted that this Court has no jurisdiction to permit a petition under section 10 of the Act with respect to the guardianship of person of the minor being tried by a Court within whose jurisdiction the minor does not ordinarily reside. In support of this proposition reliance has been placed by learned counsel on the following observations in the judgment of Moothem, J. in Ram Sarup v. Chimman Lal . A.I.R 1952 All. 79..
“I have some hesitation in this case, but my doubts are not sufficiently strong to induce men to disagree with the order proposed by my brother. I think Mr. G. Kumar is right in contending that in determining in which Court gaurdianship proceedings should be had, this Court ought to be guided by a consideration of the question of jurisdiction; for I do not thing that it was the intention of the legislature as expressed in Section 14, Guardians and Wards Act to confer upon the High Court power to vest a subordinate Court with a jurisdiction under that Act it would ordinarily not possess I have however a difficulty in accepting Mr. Kumar's further contention that the minor children must be held to be ordinarily resident in Chandausi. They are not in fact residing there; they have been taken away by their mother, and on such materials as are before us it seems to me that they were taken away with the intention that they should stay away. In these circumstances it appears to me that their ordinary residence in Chandausi thereupon came to an end and that they must be regarded, for the purposes of the Act as being ordinarily resident within the jurisdiction of the District Court of Moradabad.”
Sapru, J. Who wrote the main judgment in Ram Sarup's case (supra), did not, however subscribe to the view that a High Court has no jurisdiction diction to ignore the provisions of section 9 of the Act in coming to a decision under sub-section (A) of section 14. Mr. Mohinderjit Singh Sethi, the learned counsel for Harbans Singh, has relied upon the judgment of Bhargava, J. in Smt. Kamla v. Bhanu Mal . A.I.R 1956 All 328. to show that the Allahabad High Court itself did not follow the view expressed in the obiter dicta of Mottham, J. in Ram Sarup's case. It was held by Bhargava, J. that while exercising the power under section 14 of the Act, the residence of the minor 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. The learned Judge held that section 9 of the Act does not restrict the wide powers of the High Court under section 14(2). I am in respectful agreement with the view expressed by Bhargava, J. in Smt. Kamla's case (supra). The main consideration being the convenience and interest of the minor subject to the statutory restrictions already referred to, and the minor being no more in Ambala and no part of her property being in that district, there seems to be no reason whatever to prefer Ambala Court to Jullundur Court.
5. In these circumstances, I hold that proceedings with respect to the appointment or declaration of guardian of the person and property of Sonia minor shall be held in the Guardianship Court at Jullundur. The proceedings pending in the Ambala Court shall stand transferred to the Guardianship Court in Jullundur. In the circumstances of the case, there is no order as to costs of this reference.
Petition allowed case transferred.
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