1974 Supreme(Pat) 175

PATNA HIGH COURT
K.B.N.Singh and Lalit Mohan Sharma JJ.
Lakshmi Devi
Versus
Chandrakala
Appeal From Original Order No. 303 of 1973 ;
Decided On : SEPTEMBER 9, 1974

Headnote:

GUARDIAN AND WARDS ACT, 1890 - SECTION 10, 39 - REMOVAL OF GUARDIAN - CONTUMACIOUS DISREGARD OF PROVISIONS OF THE ACT - JURISDICTION - ORDINARY RESIDENCE OF MINOR - WELFARE OF MINOR - INHERENT POWERS OF THE COURT.

Fact of the Case:

The appellant, Lakshmi Devi, a grand-paternal-aunt of the minor, filed an application under Sec.10 of the Guardians and Wards Act 1890 (hereinafter referred to as the Act), before the District Judge of Purnea, praying that she should be appointed guardian of the person and properties of the minor. The respondents, maternal grand-mother (Nani) and maternal uncle (Mama) of the minor, filed an application, purporting to be under Sec.39 of the Act, for removing the appellant from guardianship and cancelling the aforesaid order of appointment of the appellant as guardian, on the ground that Lakshmi Devi, by practising fraud on the Court and by suppressing the real and correct facts mala fide secured the order appointing her as guardian, in contumacious disregard of the provisions of the Act, and that her interest and those of her husband and son are adverse to the minor.

Finding of the Court:

The learned District Judge, by his impugned order dated the 25th September, 1973, came to the conclusion that the appellant Lakshmi Devis appointment as guardian was not valid or legal and further she had rendered herself unfit to be the guardian of the minor and he, therefore, ordered the appellant to be removed from the guardianship of the minor and directed her to deliver the properties belonging to the minor from her control and to render necessary accounts within 90 days from the date of the order to the respondents on the following findings: (a) Chandrakala Devi, Respondent No. 1, is the own mothers mother of the minor and the applicant had deliberately and with mala fide intention concealed their relationship in her application filed under Sec.10 of the Act. (b) Ever since the age of one year, the minor was residing at Calcutta, formerly with her parents and since 1968 with the respondents, and had never been to Purnea since the age of one year, and the appellant has falsely claimed in her application under Sec.10 of the Act that the minor is in possession of the appellant. (c) The applicant had knowledge of the previous application for appointment of guardian of the minor filed by the respondents at Calcutta when she filed, her application in Purnea Court and this was another instance of fraudulent suppression and contumacious disregard of the provisions of the Act. (d) The minor, Smita Agrawal, was residing ordinarily at Calcutta and, therefore, on the date of the application filed by Lakshmi Devi for appointment as guardian, the Purnea Court had no jurisdiction to entertain the application for appointment of guardian. (e) Lakshmi Devi has shown contumacious disregard of the various provisions of the Act by suppressing and misstating important facts, her interest was adverse to the minors, she has abused the trust and is also incapable to perform the duties of a guardian, either of the person or the properties of the minor.

Issues: 1. Whether the appellant had contumaciously disregarded the provisions of the Act, so as to justify the order of removal under Sec.39 (e) of the Act? 2. Whether the appellant had knowledge about the minors ordinary residence at Calcutta, as found by the Court? 3. Whether the appellant had knowledge about the prior guardianship application filed in the Calcutta City Civil Court, as found by the Court? 4. Whether the order of appointment of guardian dated the 18th January, 1972, of the learned District Judge could be challenged only by way of appeal under Sec. 48 of the Act? 5. Whether the Court had jurisdiction to direct the appellant to deliver whatever minors properties were in her possession or control, and to render necessary accounts to the respondents, until a guardian was appointed by a competent Court?

Ratio Decidendi: 1. A guardian can doubtless be removed for concealing real facts as to the near relations of the minor as also the fact of the minors ordinary residence and for concealing the fact of an earlier application being filed in some different Court, as it would amount to contumacious disregard of the provisions of Sec.10 (1) (a), (d), (e) and (g), attracting the provisions of Sec.39 (e) of the Act. 2. The appellant had knowledge about the minors ordinary residence at Calcutta, as found by the Court. 3. The appellant had knowledge about the prior guardianship application filed in the Calcutta City Civil Court, as found by the Court. 4. The order of appointment of guardian dated the 18th January, 1972, of the learned District Judge could be challenged by way of appeal under Sec. 48 of the Act, but the Court also has inherent jurisdiction to remove a guardian under Sec.39, suo motu, or on an application in an appropriate case. 5. The Court had jurisdiction to direct the appellant to deliver whatever minors properties were in her possession or control, and to render necessary accounts to the respondents, until a guardian was appointed by a competent Court.

Final Decision: The appeal is dismissed with costs, which I assess at Rupees 200.00 (Rupees two hundred.)