1986 Supreme(Bom) 64

IN THE HIGH COURT OF BOMBAY
[NAGPUR BENCH]
H.W. Dhabe, J.
Deviprasad s/o Bimanchandra Mukherjee.... Applicant.
Versus
Sandhyadevi (Smt.) w/o Deviprasad Mukherjee
another.... Non-applicants.
Civil Revision Application No. 124 of 1981, decided on 24/25-2-1986.
Advocates appeared :
A.B. Oka, for applicant.
V.C. Daga, for non-applicant.

Headnote:GUARDIANS AND WARDS ACT, 1890

       Section 9(1)-Applicability of.

       Section 9(1) provides that an application with respect to the guardianship of the person of the minor shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. In the instant case the minor appears to be residing with the non-applicant, at Tejpur as is clear from the orders in the matrimonial case referred to above granting custody of the minor to the non-applicant. If it is, therefore, found that the minor ordinarily resides at Tejpur then the District Court at Nagpur will have no jurisdiction to consider the application of the applicant for guardianship of the person of the minor daughter.

       Sections 9(2) and (3)-Scope and applicability of-

       As regards the guardianship of the property it is provided in Section 9(2) of the Act that if the application is with respect to the guardianship of the property of the minor the application in that regard can be filed either in the District Court having jurisdiction in the place where the minor ordinarily resides or in the District Court having jurisdiction in a place where he/she has property. However, sub-section (3) of Section 9 makes it clear that if the application with respect to the guardianship of the property of the minor is made to the District Court other than that having jurisdiction in the place where the minor ordinarily resides, the said Court may return the application if in its opinion the application would be disposed of more judiciously and conveniently by any other Court having jurisdiction. It is clear from reading sub-sections (2) and (3) of Section 9 that although the District Court at Nagpur may have jurisdiction to appoint the guardian of the property of the minor daughter in the instant case because some property of the minor may be situated within its jurisdiction it is open to the trial Court to return the said application to the applicant if in his opinion the said application can be disposed of more justly or conveniently by any other Court having jurisdiction.

       In the instant case if it is found that the minor ordinarily resides at Tejpur in the State of Assam the District Court at that place would also have jurisdiction in regard to the application for guardianship of the property of the minor daughter and in that event taking into consideration the facts and circumstances in this case and particularly the fact that the minor is living far away from the Nagpur Court in the State of Assam and bearing in mind the paramount consideration of the welfare of the minor the trial Court can consider whether the application for guardianship of the property should be returned to the applicant on the ground that it can be more justly and conveniently disposed of by the District Court at Tejpur. It should be borne in mind that sometimes it may be necessary to interview the minor to consider his/her views particularly when he/she has reached the age of -Understanding as in the instant case. It may be emphasized that not only justness but convenience is also a criteria for application of sub-section (3) of Section 9.

       Section 15(4)-Power of the Court-Sub-section (4) enables the Court to appoint separate guardians for the person and the property of the minor.

       Section 15(4) enables the Court to appoint separate guardians for the person and of the property of the minor. But although the appointment of any separate persons can be made as the guardians of the person and the property of the minor it will have to be borne in mind whether it will be advisable and in the interest of the minor to appoint a common person to be the guardian of his person and the property which question would depend upon the circumstances in each case. Legally, however, it is open to the Court to appoint a separate person as a guardian of the property of the minor under the Act. Since the person appointed as a guardian of the person of the minor under the Hindu Marriage Act thus need not necessarily the appointed as a guardian of the property of the minor, the proceedings in regard to the guardianship of the property of the minor can continue since as already pointed out there is no provision under the Hindu Marriage Act for appointment of a guardian of the property of the minor. It is, however, made clear as shown above that it is open to the Court in the instant proceedings under the Act to appoint the same person as the guardian of the property of the minor daughter who is appointed as guardian of her person.

       Section 26-Custody, maintenance and education of the minor children Court has power under the section to make such provisions in the decree as it may deem just and proper.

       Although the above interpretation of the provisions of the Act in relation to the concept of the guardianship of the person of the minor is correct the limited view put forta on behalf of the applicant as regards the interpretation of Section 26 of the Hindu Marriage Act is not correct. It is expressly provided in Section 26 of the Hindu Marriage Act that the Court in any proceeding under the said Act can make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of the minor children which would show that not the question of custody but the question of education and maintenance of the minor are also covered thereunder. The above matters represent the important aspects of the guardianship of the person of the minor and, therefore, all the important questions relating to the guardianship of the person of the minor are covered in Section 26 of the Hindu Marriage Act. In fact in the instant case the District Court has passed interim orders as regards the custody as well as the maintenance of minor which are within his jurisdictions in view of the provisions of Section 26 of the Hindu Marriage Act. The considerations or criteria in regard to the appointment of the custody etc., of the minor under Section 26 of the Hindu Marriage Act are the same as under the provisions of the Act. The contention, therefore, on behalf of the non-applicant No. 1 that the issues as regards the guardianship of the person of the minor are directly and substantially the same in both these proceedings has, therefore to be upheld.