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  • provisions of secs. 8 and 11 of the Guardians and Wards Act
  • GUARDIANS AND WARDS ACT
  • sec. 21 of the Guardians and Wards Act
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Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
Judges
Acts
  • provisions of secs. 8 and 11 of the Guardians and Wards Act
  • GUARDIANS AND WARDS ACT
  • sec. 21 of the Guardians and Wards Act
Smart Summary

Concise Analytical Summary of the Opinion

Factual and Procedural Background

Dayanidhi Patnaik died on 8 August 1908 leaving moveable and immoveable property of considerable value. During the lifetime of his first wife he adopted a son in 1899, Bangsidhar Patnaik, who is the infant in respect of whose person and property a guardian has been appointed. After the death of his first wife, Dayanidhi took Sundarmani Dei (the Appellant) as his second wife in February 1908. On 14 December 1908 the widow applied to be appointed guardian of the person and property of the infant.

The widow's application was opposed by Durga Charan Mahapatra, Sreekrishna Mahapatra and Lakshindhar Mahanty. The Collector, acting under sec. 8, cl. (b) of the Guardians and Wards Act, intimated that a guardian should be appointed and that the most suitable person was Durga Charan Mahapatra. One objector, Sreekrishna, suggested that Babu Gokulanand Chowdhury be appointed guardian.

The District Judge heard evidence and concluded that the widow should not be appointed guardian, and that Babu Gokulanand Chowdhury was the best person to act as guardian. Gokulanand furnished security and indicated willingness to accept the guardianship. The widow appealed, challenging (1) that the provisions of secs. 8 and 11 of the Guardians and Wards Act had not been strictly followed in appointing Gokulanand, and (2) that the widow's application was refused on grounds erroneous in fact and insufficient in law.

Legal Issues Presented

  1. Whether the appointment of Babu Gokulanand Chowdhury as guardian was invalid because the statutory requirements of secs. 8 and 11 of the Guardians and Wards Act were not strictly followed (no direct application by Gokulanand and alleged failure of notification under sec. 11).
  2. Whether the District Judge erred in refusing the widow's application to be guardian on the stated grounds, namely:
    1. that as stepmother and next heir she was disqualified or it was undesirable that she be guardian;
    2. that as a purdanashin lady she could not effectively manage the infant's estate;
    3. that she was herself a minor and therefore incompetent to act as guardian of the person or property.

Arguments of the Parties

Appellant's Arguments (Widow)

  • The appointment of Babu Gokulanand Chowdhury is invalid because the provisions of secs. 8 and 11 of the Guardians and Wards Act were not followed: there was no application by Gokulanand under cl. (a) of sec. 8, and the Collector's alleged application under cl. (c) was not made in conformity with the statute.
  • The District Judge's refusal to appoint the widow as guardian was based on reasons erroneous in fact and insufficient in law.

Respondents' or Other Parties' Contentions (as presented in the opinion)

  • Reliance was placed upon a petition of objection dated 14 June 1909 by Sreekrishna Mahapatra suggesting that Babu Gokulanand Chowdhury should be appointed guardian; it was contended that that petition could be treated in substance as an application by a relative or friend of the minor for the appointment of Gokulanand.
  • It was contended (by a party or parties in the proceedings) that sec. 21 of the Guardians and Wards Act may be wide enough to permit the stepmother, even if a minor, to be guardian of the person of an adopted son, and additionally it was pointed out that the widow had since attained majority and would therefore be entitled to be guardian of the person.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Jaiwanti Kumri v. Gajadhar That a guardian cannot be appointed without an application under the Guardians and Wards Act. The court distinguished this case because in Jaiwanti Kumri the court appointed the Nazir though no party had suggested him; the present matter involved an application by a relation (Sreekrishna) suggesting Gokulanand and active participation of interested persons, so Jaiwanti Kumri did not apply to invalidate the appointment.
Lala Joti Lal v. Musst. Durani Kowar Principle under the Mitakshara school that a stepmother is not the heir of her stepson. Used to show that the District Judge's view that the stepmother, as next heir, ought not be guardian cannot be supported; the applicant cannot be deemed disqualified on that ground.
Tahaldai Kumri v. Gaya Tershad Sahu Same principle under Mitakshara law regarding stepmother not being heir of stepson. Reinforced the conclusion that being a stepmother does not disqualify the applicant from guardianship on heirship grounds.
Rama Nand v. Surgianri (Allahabad High Court) Support for the proposition that under Mitakshara the stepmother is not the heir of her stepson. Cited alongside the other Mitakshara authorities to reject the District Judge's heirship-based reason for refusal.
Rangubai v. Gopal Authority indicating sec. 21 may permit a stepmother (even a minor) to be guardian of the person of an adopted son. The court observed there is much force in the contention that sec. 21 is wide enough; this supported the view that the applicant could be guardian of the person.
Lakshmibai v. Shridkar Similar authority to Rangubai v. Gopal on the ambit of sec. 21 allowing a stepmother to be guardian of the person. Referred to in support of the position that the stepmother could be guardian of the person despite prior minority.
Ex parte Edward Authority for attaching weight to the ward's preference to remain within the family circle. Applied to give weight to the infant's preference to remain with his stepmother and sister; family life considerations influenced the appointment of the mother as guardian of the person.
Johnstone v. Beathe That the court, in choosing a guardian of an infant, must be guided entirely by the interests of the ward. Adopted as the guiding principle: the court appointed the mother as guardian of the person because it was in the infant's best interests, subject to safeguards.

Court's Reasoning and Analysis

The court divided its analysis into two broad parts corresponding to the two principal contentions on appeal.

1. Whether appointment of Babu Gokulanand Chowdhury complied with secs. 7, 8 and 11

The court considered the statutory scheme: sec. 7 (power to make an order if satisfied it is for welfare), sec. 8 (who may apply), sec. 10 (contents of an application by a person other than the Collector) and sec. 11 (notice and hearing requirements). The Appellant argued that because there was no direct application by Gokulanand under cl. (a) of sec. 8 and no proper Collector's application under cl. (c), the appointment was invalid; further, an objection petition suggesting Gokulanand had not been notified as required by sec. 11.

The court found, however, that there was (1) an application by the widow for appointment of herself and (2) an application by a relative (Sreekrishna) suggesting Gokulanand. Although the relative's petition had not been formally notified under sec. 11, the object of sec. 11—to bring the application to the notice of interested persons—had been achieved because all persons interested were present before the court and the suitability of Gokulanand was fully considered on evidence. The court therefore held the omission to comply strictly with sec. 11 was not a fatal defect in these circumstances. The court distinguished Jaiwanti Kumri v. Gajadhar as inapplicable because, in that earlier case, the court appointed a guardian (the Nazir) whose name had not been suggested by any party.

2. Whether refusal of the widow's application was erroneous in fact or insufficient in law

The court examined the three reasons given by the District Judge for refusing the widow's appointment and assessed each against law and the facts:

  • Heirship ground: The District Judge considered it undesirable that the stepmother (being the next heir) be guardian. The appellate court held that, under the Mitakshara school of Hindu law (citing Lala Joti Lal v. Musst. Durani Kowar, Tahaldai Kumri v. Gaya Tershad Sahu and Rama Nand v. Surgianri), the stepmother is not the heir of her stepson. Therefore this reason could not be sustained.
  • Purdahnashin incapacity: The District Judge's view that a purdanashin lady could not effectively manage an estate of considerable value was not treated as an inflexible rule. Nevertheless, on the facts the court agreed the widow's capacity to manage the infant's property was problematic: the estate would effectively be managed by her father (who was in embarrassed circumstances), which would not be for the infant's benefit. This consideration supported refusing her appointment as guardian of the property.
  • Minority of the Petitioner: The evidence supported the District Judge's estimate that the widow was a minor at the time of application. Sec. 21 of the Guardians and Wards Act makes a minor generally incompetent to act as guardian of another minor except in limited circumstances. The court held that insofar as appointment to guardianship of the property was concerned, the District Judge was right to refuse her appointment. However, the widow had since attained majority, and this removed any present disqualification to act as guardian of the person.

The court further considered the welfare of the infant. It accepted authorities (Rangubai v. Gopal, Lakshmibai v. Shridkar) and the argument that sec. 21 could be construed to permit the stepmother—even if previously a minor—to be guardian of the person, particularly now that she had attained majority. Weight was given to the infant's preference to remain with his stepmother and sister and to the advantages of family life (citing Ex parte Edward). The court concluded that, subject to suitable safeguards and directions about residence and education, it was in the infant's best interests that he remain with his mother. The court invoked Johnstone v. Beathe as the guiding principle that choice of guardian must be governed by the interests of the ward.

Practical safeguards were outlined: the infant should reside at Cuttack; a house to be taken and the child to live with mother and sister; suitable educational arrangements (possibly appointing a tutor and placing him in a town school); and the mother would be subject to the District Judge's directions with enforceability (contempt/removal) if she failed to comply.

Holding and Implications

APPEAL ALLOWED IN PART

Holding (direct orders):

  • The order of the District Judge appointing Babu Gokulanand Chowdhury as guardian of the property of the infant is affirmed.
  • The order appointing Babu Gokulanand Chowdhury as guardian of the person of the infant is discharged, and the Appellant (the mother, Sundarmani Dei) is appointed guardian of the person of the infant.
  • Directions were given that the infant should reside at Cuttack (a house to be taken for him), live with his mother and sister, and that suitable directions be given by the District Judge for his education (including appointment of a tutor and placement in a town school as appropriate).
  • Enforcement: if the mother, as guardian, fails to carry out the District Judge's directions she may be guilty of contempt of court and liable to removal from the office of guardian.
  • Costs: there will be no order for costs for any party other than Babu Gokulanand and the mother, who as guardian will be entitled to their costs out of the estate of the infant.

Implications: The decision splits guardianship between property (retained with the appointed stranger) and person (returned to the family), reflecting a fact-sensitive balancing of statutory requirements and the ward's welfare. The opinion does not purport to lay down a broad new precedent beyond applying existing authorities and statutory interpretation to the facts; its effect is the direct reallocation of guardianship responsibilities and the imposition of protective directions.

Appeal allowed in part.

    Sundarmani Dei Petitioner- v. Gokulanand Chowdhury And Anr. Objectors,

    This Appeal is directed against an order appointing a guardian of the person and property of an infant under the Guardians and Wards Act of 1890. It appears that one Dayanidhi Patnaik died on the 8th August, 1908 leaving properties, moveable and immoveable, of considerable value. During the lifetime of his first wife, Dayanidhi adopted a son. The adoption took place in 1899 and the adopted son by name Bangsidhar Patnaik is the minor in respect of whose person and property the guardian has been appointed. After the death of his first wife, Dayanidhi took the Appellant, Sundarmani Dei, as his second wife in February 1908. The death of Dayanidhi therefore was, that he left a widow, a daughter and an adopted son. On the 14th December, 1908, the widow applied to be appointed guardian of the person and property of the infant son of her husband. This application was opposed by two relations of her husband, Durga Charan Mahapatra and Sreekrishna Mahapatra, and also by one Lakshindhar Mahanty. The objectors contended that the widow was herself a minor and was not competent as a purdanashin lady to take effective charge of the person and property of the infant. They also urged that the application in substance was not made bonâ fide in the best interest of the minor concerned. One of the objectors, Sreekrishna, also proposed that Babu Gokulanand Chowdhury, a leading pleader of the Cuttack Bar, who was related both to the widow and to the minor, should be appointed guardian. The Collector of the District also took action under sec. 8, cl. (b) of the Guardians and Wards Act and intimated to the District Judge his opinion that a guardian should be appointed and that the most suitable person available was Durga Charan Mahapatra. The position, therefore, was that the District Judge had before him an application by the widow for appointment of herself as guardian, there was a suggestion by the Collector that Durga Charan should be appointed guardian; there was also a proposal by one of the objectors that Babu Gokulanand Chowdhury should be appointed guardian. The District Judge took evidence and came to the conclusion that the mother should not be appointed, but that Babu Gokulanand Chowdhury was the best person to act as guardian of the infant. The learned Judge accord ??? was made, Babu Gokulanand Chowdhury has furnished security and has intimated his willingness to accept the position of a guardian. In the present appeal which has been filed by the widow, the order of the District Judge has been assailed substantially on two grounds; namely, first, that Babu Gokulanand Chowdhury should not have been appointed guardian as the provisions of secs. 8 and 11 of the Guardians and Wards Act had not been strictly followed; and, secondly, that the application of the widow has been refused on grounds erroneous in fact and insufficient in law.

    In so far as the first contention is concerned, our attention has been invited to the provisions of the Guardians and Wards Act applicable to the matter. Sec. 7 provides that where the Court is satisfied that it is for the welfare of a minor that an order should be made appointing a guardian of his person or property or both, the Court may make an order accordingly. Sec. 8 then provides than an order under sec. 7 shall not be made except on the application of the person desirous of being or claiming to be the guardian of the minor or any relative or friend of the minor or the Collector of the District or other local area within which the minor ordinarily resides or in which he has property or the Collector having authority with respect to the class to which the minor belongs. Sec. 10 defines the contents of an application under sec. 8 by a person other than the Collector. Sec. 11 then provides that if the Court is satisfied that there is ground for proceeding on the application, it shall fix a day for hearing thereof and cause notice of the application and of the date fixed for the hearing to be served. On behalf of the Appellant it has been pointed out that the present case does not fall within cl. (a) of sec. 8, because there was no application by Babu Gokulanand Chowdhury, nor does cl. (c) of sec. 8 cover the case because there was no application by the Collector such as was entertained by the District Judge in conformity with the provisions of the Statute. On behalf of the Respondent reliance has however been placed upon the petition of one of the objectors, Sreekrishna Mahapatra, dated the 14th June, 1909, in which it was suggested that Babu Gokulanand Chowdhury should be appointed guardian of the person and property of the infant. It has been contended that this petition of objection might be treated in substance as an application by a relative or friend of the minor for the appointment of Babu Gokulanand Chowdhury as guardian. In answer, it has been contended that if the application be treated in this manner, it ought to have been notified as provided in sec. 11, and it has been suggested that the failure to comply with the provisions of that section is a fatal defect which invalidates the proceedings of the District Judge. In our opinion, there is no substance in the contention of the Appellant. As already stated, there was an application by the widow for the appointment of herself as guardian. There was also an application by a relation for the appointment of Babu Gokulanand Chowdhury as guardian. No doubt the application was not notified in accordance with sec. 11, but that did not constitute fatal defect. The object of sec. 11 is to bring the application to the notice of persons interested in opposing it. There is no room for controversy that all the persons interested in the matter of the appointment of a suitable guardian for the minor were present before the Court, and the evidence shows that the question of the suitability of Babu Gokulanand Chowdhury as a guardian was fully considered by the Court. The case of Jaiwanti Kumri v. Gajadhar(1), where it was ruled that a guardian cannot be appointed without an application under the Guardians and Wards Act, has no application to the case before us. In that case, the Court proceeded to appoint the Nazir as guardian though his name had not been suggested by any of the parties to the proceeding. We are, therefore, of opinion that the order of the District Judge has been made substantially in conformity with the provisions of the Act and cannot be set aside on any techinal ground.

    In so far as the second contention is concerned, it has been argued that each of the three reasons assigned by the District Judge for the refusal of the application of the widow is unsound. One of the reasons assigned is that the Petitioner, as the stepmother, was the next heir and it was consequently undesirable that she should be appointed guardian of the person of the infant. This view, it must be conceded, cannot be supported. As was pointed out by this Court in the cases of Lala Joti Lal v. Musst. Durani Kowar(2) and Tahaldai Kumri v. Gaya Tershad Sahu(3) and by the Allahabad High Court in the case of Rama Nand v. Surgianri(4), under the Mitakshara school of Hindu law the stepmother is not the heir of her stepson. Consequently, the applicant cannot be deemed disqualified on this ground. The second reason assigned is that the Petitioner is Herself a purdanashin lady and that the estate which is apparently of considerable value cannot possibly be effectively managed by her. No doubt, it cannot be laid down as an inflexible rule of law that a purdanashin lady should not be appointed guardian of the person and property of her infant son. But in the case before us, the circumstances show that in so far as the property of the infant is concerned, the Petitioner cannot be appointed guardian with any prospect of advantage to the infant. She is herself a young widow, and the estate, if she is appointed guardian, must be managed on her behalf by her father. Her father, it has been pointed out, is in embarrassed circumstances and it would, therefore, be not beneficial to the infant to place his estate practically in charge of the father of his stepmother. The third ground assigned is that the Petitioner herself is an infant, and is, therefore, not competent to be appointed guardian of the person and property of her infant son. The evidence as regards her minority points, we think, to the conclusion that the estimate of the age of the Petitioner, as made by the District Judge, is approximately correct. But it has been pointed out that even in that view, the Petitioner has now attained majority, and that whatever disqualification might have existed at the time of the application, there is no disqualification at the present time. Our attention has also been drawn to sec. 21 of the Guardians and Wards Act which provides that a minor is incompetent to act as guardian of any minor except his own wife or child, or, where he is the managing member of an undivided Hindu family, the wife or child of another minor ??? to the guardian of the person. In so far, therefore, as the question of the appointment of guardian of the property is concerned, the District Judge was right in the view he took. The conclusion, therefore, follows that the order of the District Judge, in so far as it appoints Babu Gokulanand Chowdhury as guardian of the property of the infant, must be affirmed. In so far, however, as the District Judge has appointed Babu Gokulanand Chowdhery to be the guardian of the person of the infant, the order must be discharged. Sec. 21, it has been contended, is wide enough to cover the case, of an adopted son, and the stepmother, even if a minor, is competent to act as guardian of the person of the infant. There is much force in this contention [see Rangubai v. Gopal(5), Lakshmibai v. Shridkar(6)]. But even if the section was strictly construed, as the applicant has now attained majority, she is entitled to be appointed guardian of the person of the infant. We are further of opinion that, in the circumstances of the case, it is for the benefit of the infant that he should not be separated from his stepmother and his sister, and he has plainly indicated his preference for the family circle, to which fact some weight must be attached. Ex parte Edward(7). The effect of the appointment of a stranger as the guardian of the person of the minor would be that he would be removed from the family, but it is not desirable that the feeling between the stepmother and the infant son or between the sister and the brother should be estranged; at the same time, there are advantages in family life which cannot be altogether ignored. The only question is, whether suitable provision can be made for the education of the infant, if the stepmother be appointed guardian of his person. We are of opinion that necessary safeguards may be provided by suitable directions. We accordingly appoint the Petitioner as guardian of the person of the infant, as, after all, the Court, in the matter of choosing a guardian of an infant, must be guided entirely by the interests of the ward, Johnstone v. Beathe(8). We direct, however, that the infant should reside at Cuttack. A house will be taken for him and he will live with his mother and sister. As regards his education, suitable directions will be given by the District Judge. Possibly the best course will be, as the estate is of considerable value, to appoint for him a tutor, and to place him in one of the schools in the town. It has been apprehended by the Respondent that the infant may be removed from the town, but we are assured by the learned Vakil for the mother that the fears are groundless. At any rate, if the mother as guardian does not carry out the directions of the District Judge, she will be guilty of contempt of Court and will be liable to removal from her office of guardian.

    The result is that this Appeal is allowed, in part; the order of the District Judge in so far as the appointment of Babu Gokulanand Chowdhury as guardian of the property is concerned, is affirmed; but in so far as the guardianship of the person is concerned, the order is varied and the mother is appointed such guardian. There will be no order for costs for any party other than Babu Gokulanand and the mother, who as guardian will be entitled to their costs out of the estate of the infant.

    Appeal allowed in part.

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    Comments

    Sundarmani Dei Petitioner- v. Gokulanand Chowdhury And Anr. Objectors,
    (Jul 3, 1912)