Aditya Kumar Trivedi, J.

Appellant/applicant filed instant appeal against judgment and order dated 07.02.2013 passed by IXth Additional District Judge, Muzaffarpur (wrongly mentioned as IXth Additional Sessions Judge) in Guardianship Case No.3 of 2011/01 of 2012 whereby and where under the learned lower court had dismissed the petition.

2. Considering pendency of instant petition for admission since 2013 and as presence of respondent had already procured, on account thereof, with the consent of the parties the matter has been heard on merit at the present stage itself and is being decided, accordingly.

3. Shorn of unnecessary details, it is evident that appellant/applicant filed petition for her appointment as a guardian of person and properties of the minor, namely, Aayushi Alingan who happens to be daughter's daughter (Natini) of the applicant. To substantiated such plea, it has been submitted that applicant's daughter Sujata Kumari was married with respondent/opposite party Ajay Sharma on 25.06.2006 and during continuation of the marriage, Aayushi Alingan begotten on 22.08.2008 at the Nursing Home of Dr. Ranjana Mishra, Juran Chapra in the town of Muzaffarpur. Sujata Kumari along with daughter Aayushi Alingan came at her place and while she was staying there, respondent/opposite party insisted for Bidai but her daughter did not show inclination to go to her Sasural however, at the intervention of well-wishers differences were shorted out and she along with Aayushi Alingan gone to her Sasural where during course of stay she was subjected to torture at the hands of respondent/opposite party for fulfilment of demand of dowry to a tune of Rs.1 lac and as, the same was not fulfilled, she ultimately met with dowry death and for that, criminal case was instituted whereupon Sessions Trial No.872 of 2009 is going on before the court of Fast Track Court No.2, Muzaffarpur. It has also been narrated that since after death of her daughter, Aayushi Alingan is under her care as well as guardianship. However, for having proper acceptance in the eye of law, applicant's appointment as a guardian of person as well as property of Aayushi Alingan became necessary and for that, the said petition has been filed. It has also been disclosed that no other petition at an earlier occasion consisting aforesaid prayer had ever been filed at the end of applicant nor there happens to be any sort of impediment in granting the relief.

4. Aforesaid petition was filed before the District Judge, Muzaffarpur whereupon Guardianship Case No.3 of 2011 was registered. Respondent/opposite party was noticed followed with his appearance. Subsequently thereof, instead of filing WS compromise petition was filed though not at all affidavited. Then thereafter applicant as well as opposite party were examined and by the judgment and order impugned said petition has been dismissed hence, this appeal.

5. From perusal of the judgment/order impugned, it is evident that learned lower court had taken into account the incompetency of the court in appointing the appellant/applicant guardian relating to person of minor which, rightly been acknowledged to be within the domains of the family court however, proceeded to adjudicate upon relating to another prayer regarding appointment of guardian relating to property and during course thereof, considered ambit and scope of Section 12 of Hindu Minority and Guardianship Act, 1956 where under no guardianship would be allowed relating to joint undivided property whereupon.

6. Learned counsel for the appellant resisted the finding recorded by the learned lower court and submitted that same happens to be wrong and illegal because of the fact that (a) once the petition has been entertained for adjudication then in that event, the court was not competent enough to see and hold that guardianship relating to person of minor was not to be within the competence of the court, (b) court should not have dismissed the petition as, there was no joi