Partly allowed

Tukaram Bhaurao Mhaske and Anr. v. Damodhar Vishwanath Nikam and Anr.

Bombay HC27 Sept 2012FA/404/2012

Case brief

AI extract

What is this about?

On appeal against the appointment of a respondent as guardian of a minor, the High Court held that the lower court failed to decide the jurisdictional issue despite arguments. The appeal was partly allowed and the matter remitted to the District Judge to decide jurisdiction and merits after admitting evidence.

What did the court decide?

The appeal is partly allowed; the matter is remitted to the District Judge Ahmednagar to decide the issue of jurisdiction and the application on merits after parties adduce evidence.

Tukaram Bhaurao Mhaske and Anr. Vs Damodhar… — Pension and Retirement Benefits | Bombay HC (2012)

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1 F.A.404.12

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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FIRST APPEAL NO. 404 OF 2012 WITH

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CIVIL APPLICATION NO. 2627 OF 2012

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1. Shri Tukaram Bhaurao Mhaske Age : 62 Years, Occup. Service,

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2. Sau Dwarkabai Tukaram Mhaske, Age : 56 years, Occup. Household,

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Both Residents of Aboli Housing
Society, B-22,Behind Hotel Raj,
MIDC, Manmad Road, Ahmednagar...APPELLANTS.
(Ori. Opponents)

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 VERSUS

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Shri Damodhar Vishwanath Nikam
Age : 72 years, Occup. Agriculture,
Resident of AT Post Katrad,
Taluka Rahuri, Dist.Ahmednagar...RESPONDENT.

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(Ori. Applicant)

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...

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 Shri Mukul S. Kulkarni,Advocate for Appellants
 Shri H.U.Dhage,Advocate for respondent.

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CORAM: S.V.GANGAPURWALA, J.

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 DATE : 27.09.2012.

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P.C.:

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1. With the consent of the parties the matter
is taken up for final hearing.

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2 F.A.404.12

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2. The application was filed under the

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Provisions of Hindu Minority and Guardianship Act
for appointment of guardian of Minor Kum Mansi.
The said application is filed by the present
respondent. The said application is allowed.
Aggrieved thereby the present appeal is filed.

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3.Mr. Kulkarni, learned counsel for the

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appellants submits that in fact the appellants
have raised the issue of jurisdiction. Arguments
were canvassed by the learned counsel on the issue

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of jurisdiction and matter was closed for the
order presumably on the aspect of jurisdiction.
But, when final order was passed it transpire that
the Court has decided the application finally, and
appointed the respondent as guardian of the minor
Kum. Manshi.

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4. The learned counsel submits that even while

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deciding the application the learned District
Judge has not decided the aspect of jurisdiction.
According to the learned counsel, the Court at

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3 F.A.404.12

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Ahmednagar does not have jurisdiction to entertain
the application as minor was residing at Nandgaon.
The leaned counsel contends that opportunity
deserves to be given to the parties to contest the
same on merits and so also the District Judge be
directed to decide the issue of jurisdiction.

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5. Learned counsel to buttress his submission

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relied on the roznama dated 29th July, 2011.

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6. Mr. Dhage, learned counsel for respondent

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supports the order and submits that minor used to
reside at Nandgaon only for the purpose of taking
education, even in vacation the minor comes and
stays at the place of the respondent, and as such,
the Court at Ahmednagar had jurisdiction.

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7. Learned counsel for respondent has not

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disputed the fact that arguments were canvassed on
the aspect of jurisdiction, but the learned Judge
has passed final order.

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4 F.A.404.12

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8. Perusal of the order, it is manifest that the

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learned District Judge has not dilated on the
aspect of jurisdiction at all. No finding is
given in that regad and final order is passed
appointing the respondent as guardian of Kum.
Mansi. Perusal of roznama dated 29.07.2011 it is
manifest that arguments were heard on the point of
jurisdiction. Roznama no where shows that the
final arguments were heard. At this stage, it
would not be appropriate to direct the learned
District Judge to decide issue of jurisdiction as
preliminary issue.

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9. Mr. Kulkarni, learned counsel submits that

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as issue of jurisdiction cropped up after evidence
of present respondent and present appellants have
not lead any evidence. The learned District Judge
is directed to allow parties to adduce evidence
before deciding main application on merits.

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10. As matter is required to be remitted for
deciding the issue of jurisdiction and on merits,

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5 F.A.404.12

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it would be proper to direct the learned District
Judge to decide the issue of jurisdiction along
with application itself.

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11. In view of the above, I pass following order.

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(i) The appeal is partly allowed.

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(ii)The matter is remitted to the
learned District Judge,Ahmednagar for
deciding it afresh.

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(iii)The learned District Judge shall
permit the parties to adduce the evidence
and shall thereafter decide the issue of
jurisdiction and the application on
merits.

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(iv) Taking into account the fact that
the issue about appointmentof
guardianship is involved, the learned
District Judge shall expeditiously decide
the said proceedings.

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(v) The parties shall appear before the
learned District Judge, Ahmednagar on
15.10.2012.

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6 F.A.404.12

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(vi)Record and Proceedings be sent back
immediately to the concerned Court.

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12. In the light of disposal of First Appeal,
nothing further survives for consideration in the
Civil Application for stay and the same is
disposed of accordingly.

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 Sd/-

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 [S.V.GANGAPURWALA, J.]

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MTK

Tukaram Bhaurao Mhaske and Anr. v. Damodhar Vishwanath Nikam and Anr.

Case brief

What is this about?

What did the court decide?

Tukaram Bhaurao Mhaske and Anr. v. Damodhar Vishwanath Nikam and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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Parties & counsel

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