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1984 Supreme(Pat) 227
HIGH COURT OF PATNA
L. M. Sharma, J.
Bibi Birjis Jahan - Appellant
Versus
Sayed Jameel Ahsan and others - Respondents
Appeal from Original Order no. 197 of 1980
Decided On : 6.6.1984
For the Appellant : M/s S. S. Asghar Hussain, Md. Kamran and S. S. Naiyar Hussain
For the Respondent no. 1: Mr. Mahendra Prasad Bhartee
For Respondent no. 2: Mr. Sayed Aiyub Hassan
The jurisdiction of the Court entertaining an application under section 9 of the Guardians and Wards Act, 1890, in connection with the guardianship of the person of a minor is dependant on the minor ordinarily residing within its territorial jurisdiction.
Headnote:
GUARDIANSHIP - JURISDICTION - ORDINARY RESIDENCE OF MINOR - MEANING OF - SECTION 9 OF THE GUARDIANS AND WARDS ACT, 1890 - SECTION 115 OF THE CODE OF CIVIL PROCEDURE, 1908 - APPLICABILITY OF.
Fact of the Case:
The appellant, the mother of a minor boy, filed an application under section 9 of the Guardians and Wards Act, 1890, for her appointment as the guardian of the person of the minor. The respondent, the father of the minor, challenged the jurisdiction of the Patna Court on the ground that the child was residing at Jamshedpur. The Additional District Judge, Patna, held that the minor ordinarily resides at Jamshedpur, since 1973 and not at Patna and the Patna Court, therefore, has no jurisdiction to entertain the application.
Finding of the Court:
The court held that the appeal is not maintainable under section 47 of the Guardians and Wards Act, 1890, as the impugned order does not amount to a refusal to appoint the appellant as the guardian. The court further held that section 115 of the Code of Civil Procedure, 1908, is available in appropriate cases, under the Guardians and Wards Act. The court also held that the minor cannot be treated to be ordinarily residing in Patna on the basis of the appellant's claim that during some of the school holidays, he came and stayed temporarily with his grand-father.
Issues: 1. Whether the appeal is maintainable under section 47 of the Guardians and Wards Act, 1890? 2. Whether section 115 of the Code of Civil Procedure, 1908, is available in appropriate cases, under the Guardians and Wards Act? 3. Whether the minor can be treated to be ordinarily residing in Patna on the basis of the appellant's claim that during some of the school holidays, he came and stayed temporarily with his grand-father?
Ratio Decidendi: 1. Clause (a) of section 47 of the Guardians and Wards Act, 1890, cannot be interpreted in isolation. It has to be considered along with other provisions of the Section and the Act which may be relevant and a harmonious construction has to be given. If read with the provisions of section 9 and section 47 (b), clause (a) of section 47 cannot be given a wide meaning so as to under clause (b) as surplusage. 2. Section 48 of the Guardians and Wards Act, 1890, refers to the revisional power under the Code of Civil Procedure in express terms. Therefore, section 115 of the Code of Civil Procedure, 1908, is available in appropriate cases, under the Guardians and Wards Act. 3. The expression ordinary residence of the 'minor' has not been defined in the Act. The minor cannot be treated to be ordinarily residing in Patna on the basis of the appellant's claim that during some of the school holidays, he came and stayed temporarily with his grand-father.
Final Decision: The appeal was dismissed.
Lalit Mohan Sharma, J. - This appeal arises out of a dispute between the mother and father of a minor boy Tabrez for his guardianship. The appellant Bibi Birjis Jahan was married at Patna in accordance with the Moham madan Law with the respondent no. 1 Sayed Jamil Ahsan in 1971 and in 1972 Tabrez was born. According to the case of the appellant, she, her son and her husband went to Jamshedpur where the husband was employed. Later the son was taken away from her and she was expelled from the house. She, therefore, returned back to her father's house in Patna town. She made an application in 1976 for her appointment as the guardian of the person of the minor under section 9 of the Guardians and Wards Act, 1890 before the District Judge, Patna, alleging that the child is staying in patna with his father's father (Respondent no. 2).
2. The respondent no. 1, besides denying many allegations made in the petition, challenged the jurisdiction of the Patna Court on the ground that the child was residing at Jamshedpur. The question of jurisdiction was taken up and tried as preliminary issue. The parties led evidence on the question of residence of the minor. By the ORDER :under challenge the Additional District Judge, Patna, has held that the minor ordinarily resides at Jamshedpur, since 1973 and not at Patna and the Patna Court, therefore, has no jurisdiction to entertain the application which has been directed to be returned to the applicant for the purpose of a proper presentation.
3. The appellant and the respondent no. 1 have been represented before this Court through counsel, but the respondent no. 2, that is the father of the respondent no. 1, argued his case in person. A preliminary objection was taken on behalf of the respondents that the appeal is not maintainable.
4. Mr. Asghar Hussain, the learned counsel of the appellant, contended that the appeal is maintainable under section 47 of the Act. Reference was 'made to' clauses (a) and (b) of the section.
5. The provisions relating to appointment and declaration of' guardians are contained in Chapter II of the Act. Section 7 deals with the power of the Court in regard to the appointment of a guardian 6f the person or property or both of a minor. The sub-section (1) of section 9 states that an application with respect to the guardianship of the person of a minor has to be made to the District Court having jurisdiction in the place where the minor ordinarily resides (emphasis added). As directed by the sub-section (2), an application with respect to the guardian of the property of a minor may be made either to such a District Court or to a District Court having jurisdiction in a place where the minor has the property. The sub-section (3) provides that if an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction. There is no provision for the return of an application for appointment of a guardian of the person of the minor on the ground of jurisdiction. The question is whether in these circumstances the present appeal is maintainable under section 47. The relevant clauses are mentioned below:
"47. ORDER :s appealable-An appeal shall lie to the High Court from an ORDER :made by a Court-
(a) under section 7 appointing or declaring or refusing to appoint or declare a guardian;
(b) under section 9 sub-section (3) returning of an application;"
6. As has been stated above, the application out of which the present appeal arises was filed with respect to the guardianship of the person of the minor only. The sub-section (3), therefore, is inapplicable and so is clause (b) of Section 47. Mr. Asghar Hussain contended that since by the impugned ORDER :the Additional District Judge held that the Patn
