Allowed

Smt. Kavita Devi v. Satendra

Allahabad HC19 Nov 2019FAPL/277/2018

Case brief

AI extract

What is this about?

This appeal challenged the dismissal of a suit seeking appointment as guardian of a minor son's person and property. The High Court set aside the lower court's finding of lack of jurisdiction and remanded the case for fresh decision on merits.

What did the court decide?

Impugned judgment and decree dated 26.02.2018 set aside; matter remanded to Principal Judge, Family Court, Baghpat for fresh decision on merits.

Smt. Kavita Devi Vs Satendra — Child Custody and Guardianship | Allahabad HC (2019)

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Court No. - 4 Case :- FIRST APPEAL No. - 277 of 2018 Appellant :- Smt. Kavita Devi Respondent :- Satendra Counsel for Appellant :- Ram Raj Pandey,Ram Raj Pandey

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Hon'ble Bala Krishna Narayana,J. Hon'ble Rohit Ranjan Agarwal,J.

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Heard learned counsel for the appellant and perused the lower court record. No one is present on behalf of the respondent despite being served.

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The instant appeal has been preferred by appellant, Smt. Kavita Devi challenging the legality and validity of the judgment and decree dated 26.02.2018 passed by Principal Judge, Family Court, Baghpat by which he has dismissed the Suit No. 72 of 2013 filed by appellant under Section 7/8 of Guardians and Wards Act, 1890 and Section 6/8 of Hindu Minority and Guardianship Act, 1956 on the ground that he had no jurisdiction to decide the aforesaid application for the reason that the appellant apart from seeking the relief for being appointed the guardian of her minor son, Artik the plaintiffappellant has also sought to be appointed guardian of her minor son's share in Khasara No. 1117 of Khata No. 7 and for recording his name in the revenue records.

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It is contended by learned counsel for the appellant that learned Family Judge committed an error apparent on the face of the record while dismissing Suit No. 72 of 2013 on the ground that he had no jurisdiction to appoint the appellant as guardian of her minor son's property as the same involved determination of issues relating to the properties of the minors. He next contended that the word 'guardian' has been defined in Section 4 (2) of the Guardians and Wards Act, 1890 (hereinafter called as 'Act') according to which 'guardian' means a person having the care of the person of a minor or his property, or both of his person and property. He lastly contended that since the Judge, Family Court totally misread the definition of word 'guradian' as provided under Section 4(2) of the Act and to take notice of Section 7 of the Act confers power on the Court to make an order appointing a guardian of a minor of his person or property or both, the impugned judgment and decree cannot be sustained and liable to be set aside.

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We have heard learned counsel for the appellant and perused the record.

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It appears that plaintiff-appellant, Smt. Kavita Devi who is mother of Artik Kumar, after the death of her husband on 25.12.2004 filed a suit under Section 7/8 of Guardian and Wards Act, 1890 and 6/7 of Hindu Minority and Guardianship Act, 1956 which was registeted as Suit No. 72 of 2013 (Smt. Kavita Devi v. Statendra), for the reliefs that she be appointed as the guardian of the person of her minor son Artik as well as of his share of 0.2107 hectares land in Khasara No. 1117 of Khata No. 7, situate in Mauja- Sirasalgarh Darkawda, Tehsil- Badaut, District- Meerut. The aforesaid Suit No. 72 of 2013 was

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dismissed by Principal Judge, Family Court by impugned judgment and decree holding that he had no jurisdiction to decide the claim of the plaintiff-appellant for being appointed as guardian of the immovable property of her minor son as the basic question involved for determination in the suit pertains to minor Artik's property.

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In our opinion the Principal Judge, Family Court while dismissing Suit No. 72 of 2013 totally misread the meaning of the word 'guardian' as provided under Section 4(2) of Guardians and Wards Act, 1890. Section 4(2) of the Act defines that guardian is a person having the care of the person of a minor or his property, or of both his person and property.

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Section 7 of the Act which confers power on the Court to make order as to guardianship reads hereasunder:

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"7. Power of the Court to make order as to guardianship.- (1) Where the Court is satisfied that is for the welfare of a minor that an order should be made-

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(a) appointing a guardian of his person or property, or both, or

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(b) declaring a person to be such a guardian, the court may make an order accordingly.

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(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.

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(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act."

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Thus, upon even the most superficial reading of Sections 4(2) and 7 of the Act, it is crystal clear that the court can appoint a guardian not only of the person of a minor but also of his property. The impugned judgment which is founded upon an absolute erroneous premise and vitiated on account of total disregard of the provision governing the appointment of guardian cannot be sustained and liable to be set aside.

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In view of the above, this appeal stands allowed .

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The impugned judgment and decree dated 26.02.2018 is hereby set aside. The matter is remitted back to the Principal Judge, Family Court, Baghpat, with a direction to him to decide the matter afresh in the light of observations made hereinabove strictly in accordance with law on merits.

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Order Date :- 19.11.2019/V.S.Singh

Smt. Kavita Devi v. Satendra

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Smt. Kavita Devi v. Satendra

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