J. M. SHETH, J. ( 1 ) * * * * ( 2 ) MR. N. H. Bhatt learned advocate appearing for the appellants has contended that the question of ordinary residence is a question of fact and not a question of presumption. He conceded that the mere fact that the minor children resided at village Vaghel on the date of the application by itself would not be sufficient for the court to come to the conclusion that Vaghel village was the ordinary place of residence of the minor children. The court has to look to all relevant facts and circumstances and decide on the basis of them as to what is the place of ordinary residence of minor children. Mr. Bhatt urged that it was an admitted position that Virbala the mother of the minor children left her husbands home at Palanpur on 31st October 1967. Even according to the husbands own case even prior to that leaving her husbands home Virbala used to stay more often at her parents place rather than at her husbands home. The husbands whole case was and is that Virbala has left her husbands home with an animus desertendi. On the ground of desertion the husband has taken out a judicial proceeding against the wife for judicial separation. According to the petitioners case and evidence several persons intervened and went to call back the wife and the children. Even after coming to the outskirts of the village Vaghel they dropped the idea of coming to Palanpur and went back to village Vaghel. Even Ashok the eldest son left and did not accompany the father and his companions. It has been brought on the record that Ashok who is the eldest son is schooling at village Vaghel for the last few years from the time he started schooling. Admittedly the last child which is a male child is born at village Vaghel and had been all along living at village Vaghel. It is not suggested that at any time after Virbala left with the children and went to reside with her parents place at Vaghel she and her minor children ever came and resided with their father. In view of these circumstances and the facts brought on the record and proved the learned trial Judge Mr. It is not suggested that at any time after Virbala left with the children and went to reside with her parents place at Vaghel she and her minor children ever came and resided with their father. In view of these circumstances and the facts brought on the record and proved the learned trial Judge Mr. Bhatt submitted was not justified in coming to the conclusion that Palanpur District Court had jurisdiction to hear the petition. In support of his arguments he has invited my attention to two decisions of the Bombay High Court and also decisions of other High Courts. Mr. S. B. Majmudar learned advocate appearing for the respondent father of the minor children urged that this was a petition under sec. 25 of the Guardians and Wards Act (hereinafter referred to as the Act) and not under sec. 9 of the Act. He has urged that the decisions relied upon by Mr. Bhatt interpreting the relevant words of sec. 9 cannot be pressed into service. He further contended that admittedly two minor children who were born before Virbala left her husbands home were living with their parents that is Virbala and Harichand at Palanpur at Harichands home. Under sec. 6 of the Hindu Minority and Guardianship Act 1956 the father was the natural guardian of the minor children. He therefore contended that the admitted position in law was that the father was the natural guardian of the minor children and continued to be guardian. As a natural corollary therefore the residence of minor children would be the ordinary place of residence of their guardian and admittedly the ordinary place of residence of the guaradian is Palanpur. In support of his arguments he laid considerable emphassis on the decision of the Nagpur High Court to which I will make reference at an appropriate place. Mr. Majmudar submitted that ordinary residence would mean the usual residence and usual residence will be the residence of the minors where they lived prior to their mother leaving her husbands home. In my opinion the argument advanced by Mr. Bhatt are well founded. Sec. 9 (1) of the Act states that if the application is with respect to the guardianship of the person of the minor it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. In my opinion the argument advanced by Mr. Bhatt are well founded. Sec. 9 (1) of the Act states that if the application is with respect to the guardianship of the person of the minor it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. ( 3 ) THE words which require interpretation at my hands are the words where the minor ordinarily resides. We have to find out the exact connotation of the words where the minor ordinarily resides. Sec. 25 of the Act with which we are concerned uses the word Court. The word Court is defined in sec. 4 (5) of the Act. Clause (a) of it reads as under :-THE Court means the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian unless there is something repugnant in the subject or context. THERE is nothing in sec. 25 to indicate that the word Court was intended to be given any other meaning. It is therefore evident that the court referred to in sec. 25 will mean the District Court having jurisdiction to entertain an application for an order appointing or declaring a person to be guardian. In the instant case if the court comes to the conclusion that the ordinary residence of the minors was village Vaghel in Taluka Sami District Mehsana it is the District Court at Mehsana which will have jurisdiction to hear this application. Even if we read clause (b) (ii) of sub-sec. (5) of sec. 4 of the Act the position is the same. It reads :- where a guardian has been appointed or declared in pursuance of any such application in any matter relating to the person of the ward the District Court having jurisdiction in the place where the ward for the time being ordinarily resides. In the instant case Harichand the present respondent has not been appointed as a guardian or declared in pursuance of any such application. We will therefore be guided by sec. 4 (5) (a) of the Act. A perusal of the relevant provisions of the Act clearly indicates that there would be no difference in the position regarding jurisdiction in case the application is not under sec. 9 of the Act but is under sec. 25 of the Act. We will therefore be guided by sec. 4 (5) (a) of the Act. A perusal of the relevant provisions of the Act clearly indicates that there would be no difference in the position regarding jurisdiction in case the application is not under sec. 9 of the Act but is under sec. 25 of the Act. If the Legislature had intended to give jurisdiction to the court in the appointment of a guardian of a minor person or for the custody of the minor child on the basis of his legal residence the Legislature would not have used the words where the minor ordinarily resides. The Legislature could have advisedly used the words where there is legal residence of the minor or where there is the deemed radiance of a minor. In my opinion the question of ordinary residence is a question of fact and not a question of presumption. The court has to take into consideration the relevant facts and circumstances and find out what is the place of ordinary residence of the minor. Merely because the ordinary place of residence of the father of the minors is Palanpur it cannot be presumed that the ordinary residence of the minor children of his is Palanpur. At the same time merely because the minors happened to be at village Vaghel on the date of the application it cannot be presumed that that is the ordinary place of their residence. This conclusion of mine is supported by the decision of a Division Bench of the Bombay High Court in Lakshman v. Gangaram A. I. R. 1932 Bom. 592. It is observed :-A minor resident of R. district was married to a person resident of P. district Application for the appointment of guardian of the person were filed by the mother and the husband. The minor had been married for a yew and had stay for only five months with her husbandit was held that considerations of convenience are relevant only when the minor ordinarily resides in two districts. In this case the minor ordinarily resided only in R. District and so the Court at R had jurisdiction. Broomfield J. has observedit is provided in sec. In this case the minor ordinarily resided only in R. District and so the Court at R had jurisdiction. Broomfield J. has observedit is provided in sec. 9 of the Act that if the application is with respect to the guardianship of the person of the minor it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. The first question therefore is whether this minor girl Sonabai ordinarily resides in the Poona District or in the Ratnagiri District. WE have been referred to several cases but none of them is of much assistance upon this particular point. The only thing which can be said to be at an clear is that residence is a matter of fact and not a matter of presumption. It cannot be presumed that the minor girl ordinarily resides in Poona merely because her husband is residing there. Now the facts are that Sonabais parents live in Khed in the Ratnagiri District and upto the date of her marriage Sonabai lived with her parents in Khed. Her marriage with Laxman Morshet also took place in Khed in June 1929. After the marriage it appears that she went to live with her husband in Poona for one month. She then returned to her parents in Khed and subsequently she stayed with her husband in Poona from October 1929 to February 1930. That is to say out of the whole of her life she has lived for about four months in Poona; all the rest of the time she has been residing in Khed in the Ratnagiri District. IN a later decision of the Bombay High Court in Chimanlal v. Rajarama. I. R. 1937 Bom. 158-another Division Bench of the Bombay High Court has taken the same view. In that case an application for the custody of a minor girl Was made under sec. 25 by her paternal uncle residing outside the jurisdiction of the court. It was found that the girl with her mother lived with him since her fathers death and both were maintained by him. The court appointed the applicant as her guardian on taking security from a person who resided within its jurisdiction. It was held thatin order to give the Court jurisdiction under sec. It was found that the girl with her mother lived with him since her fathers death and both were maintained by him. The court appointed the applicant as her guardian on taking security from a person who resided within its jurisdiction. It was held thatin order to give the Court jurisdiction under sec. 25 the minor must be ordinarily resident within the local limits of the jurisdiction of the Court in view of the definition of Court in sec. 4 (5) of the Act. At p. 160 it is observed -IN view of the fact already mentioned that the minor has spent the greater part of her short life with the respondent in Kolhapur there might have been some difficulty in this connection but since April 1934 she has admittedly been residing with the opponents in the Poona District. At the time the application was made in January 1935 she had already been residing with them for eight months. The husband with whom her engagement has been made is a resident of Poona. If the application under sec. 25 had not been made at all she would doubtless have continued to reside at Poona. Under these circumstances we think that it can be said that she was ordinarily residing within the jurisdiction of the District Court of Poona at the material time both for the purpose of appointment of a guardian and for the purpose of an order under sec. 25. IT cannot be gainsaid that the arguments advanced by Mr. Majmudar get support from the decision of the Nagpur High Court in Vimlabai v. Baburaoa. I. R. 1951 Nagpur 179. Mudholkar J. (as he then was) has observedunder the Hindu law the father is the natural guardian of his children and his children must be deemed to reside where he resides. Where a man has no permanent abode he must be deemed to reside whore he actually resides it follows therefore that his children must also be deemed to reside at the plaee where he happens to reside. Where a man has no permanent abode he must be deemed to reside whore he actually resides it follows therefore that his children must also be deemed to reside at the plaee where he happens to reside. THUS where a Hindu minor has been living in Amraoti continuously for over a year with her father she must be deemed to reside ordinary in Amaoti though before going to Amraoti to live with her father after he found employment there she lived for the greater part of her short life in Nagpur first with her parents and thereafter with her mother. During the period the minor spent with her mother in Nagpur after the departure of her father she (the minor) must be deemed to be in charge of the mother on behalf of the father who is her natural guardian. So Nagpur cannot be said to be the place of her legal residence. WITH respect I may say that we are not concerned in deciding the question of jurisdiction as regards the legal residence. We are concerned with the question regarding the ordinary residence of the minors. Apart from that this view runs counter to the view taken by the Bombay High Court prior to the date of the bifurcation and consequently those decisions are binding on me. In my opinion these Bombay decisions also lay down the correct position of law. A Division Bench of the Saurashtra High Court in Bai Shri Arunkumari v. Natwarsingh A. I. R. 1954 Sau. 152-has taken a similar view. It is observed therein thatthere is no presumption that the minor is deemed to reside at the place where his natural guardian resides and the place of residence of the natural guardian is not the determining factor in deciding the question of Courts jurisdiction except as one of the circumstances to be considered in determining the ordinary place of residence of the minor. Even if such presumption can be raised it is a weak presumption liable to be easily rebutted by proof of other circumstances. The question of residence of the minor is thus a question of fact which must be determined in the light of circumstances of each case. Even if such presumption can be raised it is a weak presumption liable to be easily rebutted by proof of other circumstances. The question of residence of the minor is thus a question of fact which must be determined in the light of circumstances of each case. WHERE however the averments in the application made it clear that the applicant himself accepted the position that the minors ordinary place of residence on the date of the application was at B and that the application was made at 5 on the ground of his own residence and on the ground that 10 month before the application the minor had resided with him. It was held that the application filed at 5 must fail on the ground of want of jurisdiction and it was not necessary to remand the case for recording evidence about the actual place of the minors residence. IN the instant case similar is the position. Admittedly according to the father the minor children are residing at mothors parents place since 31 October 1967. The application has been filed on 6th January 1970. It means that on the date of the application the minor children were living for a period of over two years at village Vaghel. It is significant to note at this stage that Ashok the eldest child was born on 22nd July 1963. The marriage between Virbala and Harichand had taken place on 18th February 1961. Sharmishta was born on 28th February 1966 and Mahendra was born on 15th May 1968. Mahendra has never resided at his fathers place. He has all along lived at village Vaghel. Even before Virbala left her husbands home even according to her husbands version Virbala more often resided at her parents place. The eldest child who has reached the age of schooling is studying at the school at Vaghel. Taking into consideration all the relevant circumstances and facts brought on record there is no escape from the conclusion that the minors were residing ordinarily and are residing ordinarily at village Vaghel. The learned trial Judge was therefore in error in holding that the Palanpur District Court had jurisdiction to entertain this application. A Single Judge of the Allahabad High Court in Jamuna Prasad v. Mst. Panna A. I. R. 1960 All. 285has taken a similar view. The learned trial Judge was therefore in error in holding that the Palanpur District Court had jurisdiction to entertain this application. A Single Judge of the Allahabad High Court in Jamuna Prasad v. Mst. Panna A. I. R. 1960 All. 285has taken a similar view. It is observed by Bhargava J. THE words ordinarily resident have a different meaning than residence at the time of the application. Both may be identical or may be different. That would depend on the facts of each particular case. To interpret the words where the minor actually resides at the time of the application may in some cases amount to rendering nugatory all the provisions of the Guardians and Wards Act. It may be that persons who have absolutely no right may remove the minor forcibly and keep him at a distant place when the application is made where the minor was ordinarily residing and objection may be taken that the application was not entertainable. The entire circumstances the intention with which the minor had been removed the person with whom the minor has been living and other relevant factors have to be taken into consideration. IN the instant case the minors are residing with none else but with their mother. When the mother left her husbands home two of the elder minors were of very tender age. The third minor has been born even after the mother left her husbands home. In Harbans Singh v. Vidya Wantia. I. R. 1960 Pun. 372-Dua J. (as he then was) has taken a similar view observinga question whether or not a minor ordinarily resides within the jurisdiction of a Court has to be decided on the facts and circumstances of each case. A Division Bench of the Assam High Court in Mst. Firoza Begum v. Akhtaruddin Laskar A. I. R. 1963 Assam 193-has also taken a similar view. IT is observed therein the requirement of sec. 9 of ordinary residence was satisfied in the case of Silchar. The minors had been residing at Silchar for a substantial period of time prior to the application made by the father in the District Court at Gauhati. In the circumstances the only court which could be said to have jurisdiction according to the language of sec. 9 of the Act was the District Court at Silchar. In paragraph 4 at p. 194 it is observedit is contended by Mr. In the circumstances the only court which could be said to have jurisdiction according to the language of sec. 9 of the Act was the District Court at Silchar. In paragraph 4 at p. 194 it is observedit is contended by Mr. Ghose that the expression ordinarily resides does not mean casual or factual residence of the minors at the time of the application being made and that normally the residence of the minor should be taken as the place where the legal guardian is residing. He placed reliance in the cases of Jhala Harpalsinh v. Bai Arunkunvar A. I. R. 1954 Sau. 13; Chandra Kishore v. Smt. Hemlata Gupta. A. I. R. 1955 All. 611; and Sarada Nayar v. Vayankara Amma A. I. R 1957 Ker. 158. After referring to these decisions in paragraph 5 it is observedin the instant case it is not disputed that the minors left with their mother to Silchar in the year 1957 and that the minors had been living with their mother ever since in Silchar. The application filed by the father in the District Court at Gauhati was only made on 21-360. as already pointed out. It is therefore clear that the minors had been residing at Silchar for a period of about three years prior to the making of the application. In the circumstances we feel that the requirement of sec. 9 of ordinary residence is satisfied in the case of Silchar and it can be held without any difficulty that the minors had been residing at Silchar for a substantial period of time prior to the application made by the father in the District Court at Gauhati. It is not the case of the father of the minors that the minors were taken away to Silchar for the purpose of avoiding the jurisdiction of the District Court at Gauhati because the application in the District Court at Gauhati was made as already pointed out about three years after the minors had left for Silchar. THE present case with which we are concerned practically stands on the same footing. Mr. Majmudar invited my attention to the decision of the Kerala High Court in Sarada Nayar v. Vayankara Amma A. I. R. 1957 Ker. 158. The relevant observations arethe expression where the minor ordinarily resides appears to have been deliberately used in sec. THE present case with which we are concerned practically stands on the same footing. Mr. Majmudar invited my attention to the decision of the Kerala High Court in Sarada Nayar v. Vayankara Amma A. I. R. 1957 Ker. 158. The relevant observations arethe expression where the minor ordinarily resides appears to have been deliberately used in sec. 4 (5) (b) (ii) to exclude places to which the minor may be removed at or about the filing of the application for the enforcement of the guardianship and custody of the minor. The phrase ordinarily resides indicates ordinary residence even at the time of the presentation of the application under sec. 25. The emphasis is undoubtedly on the minors ordinary place of residence. Such a place has to be determined by finding out as to where the minor was ordinarily residing and where such residence would have continued but for the recent removal of the minor to a different place. WHERE the application is filed soon after such removal the place of such removal will be ignored for the purpose of determining the jurisdiction of the court to entertain the application and inspite of such removal the minor will be deemed to to have its residence at the place where it was ordinarily residing. THE present case is not a case of that type. After the mother left her husbands home the minors are residing at village Vaghel. Mr. Majmudar also invited my attention to the decision of Mukerji J. Chandra Kishore v Hemlata A. I. R. 1965 All. 611. It is observed thereinunder the Hindu law the father is the natural guardian and the preferential guardian of his minor children. Therefore when there is a contest between the mother and the father in regard to what the residence of the minor children is going to be then the mothers word cannot be accepted in preference to the word of the father. Therefore when there is a contest between the mother and the father in regard to what the residence of the minor children is going to be then the mothers word cannot be accepted in preference to the word of the father. THUS where the evidence shows that certain minors had an ancestral home in Meerut that they had been there with their father and mother during the better part of their short life and that they had been taken by their mother to Dehra Dun only a very brief span of a few hours it was held that the ordinary residence of the minors was Meerut and that the Dehra Dun Court had no jurisdiction to entertain the application of the mother for the guardianship of her minor sons. IN the instant case the position in quite different. It appears that most of the High Courts have taken the view that there is no such presumption as has been canvassed by Mr. Majmudar. It is a question of fact. The court has to decide the question of ordinary residence of minors on taking into consideration all the relevant circumstances. I therefore hold that the District Court at Palanpur had no jurisdiction to entertain and hear the petition filed by the present opponent for the custody of the minor children. The order passed by the trial court is therefore without jurisdiction. It is therefore required to be set aside. The present proceeding being a miscellaneous proceeding sec. 141 of the Civil Procedure Code can be pressed into service and an order can be passed for directing the trial court to return the application Ex. 1 of Civil Miscellaneous Application No. 1 of 1971 for presenting it to the proper court. The appeal is allowed and the order passed by the trial court dated 3rd September 1971 is set aside on the ground that the trial court had no jurisdiction to entertain and hear this petition. The trial court is directed to return Ex. 1 of Civil Miscellaneous Application No. 1 of 1971 (Original No. 2 of 1970) to the respondent (original petitioner) for presenting it to the proper court. Mr. Bhatt fairly states that in the circumstances of the case the court may pass an order that each party should be ordered to bear its own costs throughout. Each party is ordered to bear its own costs throughout. Mr. Bhatt fairly states that in the circumstances of the case the court may pass an order that each party should be ordered to bear its own costs throughout. Each party is ordered to bear its own costs throughout. Cross objections do not survive in view of my finding regarding jurisdiction. They therefore stand dismissed with no order as to costs. Civil Application No. 2408 of 1971 does not survive. It stands disposed of with no order as to costs. ( 4 ) MR. Majmudar appearing for the respondent before the oral judgment dated 20th June 1970 was signed by me requested to the court that he had failed to point out to the court the provisions of sec. 21 of the Civil Procedure Code (which will be hereinafter referred to as the Code ). which in terms precludes the appellate or revisional court to entertain objection as to the place of suing unless such objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice. In the instant case admittedly the appellants had taken up such objection regarding the jurisdiction of the District Court Banaskantha at Palanpur at the earliest possible opportunity. It was therefore contended by Mr. Majmudar that the question that would arise for consideration was whether there had been a consequent failure of justice. In his submission the second condition is not satisfied and eventually this court cannot interfere with the order passed by the learned District Judge in Civil Miscellaneous Application No. 1 of 1971. The matter was therefore kept for re hearing on this point. ( 5 ) MR. Majmudar has submitted that sec. 141 of the Code indicates that the procedure provided in the (Code in regard to suits shall be followed as far as it can be made applicable in all proceedings in any court of civil jurisdiction. Mr. Majmudar has submitted that the proceeding in question could be said to be a proceeding in a court of civil jurisdiction. It was in the nature of original proceeding. Provisions of sec. 141 of the Code could therefore pressed into service. Mr. Majmudar has submitted that the proceeding in question could be said to be a proceeding in a court of civil jurisdiction. It was in the nature of original proceeding. Provisions of sec. 141 of the Code could therefore pressed into service. In support of his arguments he invited my attention to the decision of the Bombay High Court in re Bai Jamnabai wife of Liladhar Khetsey a minor and Haridas Naranji. Indian Law Reports 36 Bombay 20. At pages 26 and 27 the relevant observations made are :-AS the matter is one of very great importance in the administration of the courts jurisdiction in relation to infants I think it desirable to say that I have no doubt that the court would have had power in this case to appoint a receiver had it considered it necessary or proper to do so. After referring to the English practice it is further observed : -. . . . . TURNING to the Code very wide powers are given to the court as regards the appointment of a receiver. See. 141 of the Code provides that the procedure laid down in the Code in regard to suits should be followed as far as it can be made applicable in all proceedings of any Court of civil jurisdiction; and having regard to the terms of sec. 12 of the Guardians and Wards Act that the court may make such order for the protection of the person and property of the minor as it thinks proper I am of the opinion that sec. 141 of the Code makes applicable in a proceeding on a petition under that Act the sections and orders dealing with the appointment of the receiversin view of this decision it cannot be gainsaid that the provisions of sec. 141 of the Code will have application to a proceeding under the Guardians and Wards Act 1890 (which will be hereinafter referred to as the Act ). ( 6 ) THE important question for consideration is that in view of the scheme of the said Act the court would be justified in invoking the provisions of sec. 21 of the Code. Mr. Majmudar has invited my attention to the decisions of different High Courts and a decision of the Supreme Court in support of his argument that the respondent could get the benefit of sec. 21 of the Code. 21 of the Code. Mr. Majmudar has invited my attention to the decisions of different High Courts and a decision of the Supreme Court in support of his argument that the respondent could get the benefit of sec. 21 of the Code. A Division Bench of the Mysore High Court in Omprakash Dhawan v. Santosh Kumari. A. I. R. 1965 Mysore 110 while dealing with the provisions of the Hindu Marriage Act 1955 as observed at page 112 :-NOW sec. 13 (1) (viii) of the Hindu Marriage Act creates a right to a decree of divorce in cases where there has been non-resumption of cohabitation for a space of two years and more after the passing of a decree for judicial separation. We cannot accede to the view suggested by Mr. Nazereth that we should regard the earlier decree for judicial separation as a nullity since according to him there was neither the solemnisation of the marriage nor the required residence of the spouses within the jurisdiction of the District Judge. The argument overlooks the essential distinction between absence of territorial jurisdiction and absence of inherent jurisdiction which was explained by the Supreme Court in Kiran Singh v. Chaman Paswan A. I. R. 1954 S. C. 340 (to which my attention was also drawn by Mr. Majmudar) thus : -. . . . . WITH reference to objections relating to territorial jurisdiction sec. 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate or revisional Court unless there was a consequent failure of justice. . . . . . . THE policy underlying secs. 21 and 99 C. P. C. and sec. 11 of the Suits Valuation Act is the same namely that when a case had been tried by a court on the merits and judgment rendered it should not be liable to be reversed purely on technical grounds unless it had resulted in failure of justice and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court unless there has been a prejudice on the merits it is observed in para 11 :-ALTHOUGH Mr. Nazarath maintained an argument to the contrary it seems to us that the objection to jurisdiction now advanced on behalf of the wife in the context of the earlier application for judicial separation is an objection of a technical nature amounting as it plainly does to an objection to territorial jurisdiction. If appellate Court could not have listened to that objection aster an appeal had been preferred from a decree for judicial separation made by the Distort on the earlier occasion it should follow that we should not listen to that objection in these proceedings in which the application was for a decree of divorce on the foundation of the earlier decree for judicial separation. ( 7 ) IN Abdul Azeem v. Fahimunnisa Begum A. I. R. 1969 Mysore 226 at page 230 a Division Bench of the Mysore High (Court has taken the same view when dealing with the provisions of Dissolution of Muslim Marriages Act 1939 The relevant observations made in para 32 are :-THE only other submission made by Mr. Kagalkar was that the suit should have been instituted in the Munsiffs Court and not in the Court of the District Judge. But as Mr. Suresh Joshi has pointed out to us this objection to jurisdiction was raised very late and it was raised only when District Judge was called upon to make a decree on the application of the wife after the finding had been recorded on impotence. Mr. Joshi in our opinion is right in contending that in that situation sec. 2t of the Code of Civil Procedure stands attracted. We are satisfied in our minds that the assumption of jurisdiction by the District judge even if he did not possess it did not result in a failure of justice. We are of the opinion that we should overrule the objection as to want of jurisdiction. ( 8 ) IN Kishori Lal v. Firm Lajia Ram Ram Sarup A. I. R. 1951 Punjab 375 Harnam Singh J. has observed :-UNDER sec. 21 even though the objection as to place of suing has been raised at the earliest possible opportunity or wrongly disallowed the judgment will not be disturbed unless the trial in the wrong court has led to a failure of justice. 21 even though the objection as to place of suing has been raised at the earliest possible opportunity or wrongly disallowed the judgment will not be disturbed unless the trial in the wrong court has led to a failure of justice. In order to ascertain whether there has been a failure of justice the appellate Court must go into the merits of the case and form an opinion upon the justice or otherwise of the decision of the original Court. ( 9 ) MR. Majmudar has frankly stated that he could not find out any decision where in a proceeding under the Act it was held that sec. 21 of the Code was attracted. Mr. N. H. Bhatt appearing for the appellants has urged that in all the decisions to which reference has been made earlier orders have been set aside on the ground that the lower court had no jurisdiction to entertain the proceeding under the Act. He admits that it was true that in none of those cases including the decisions of the Bombay High Court to which I have made reference no argument was advanced on the basis of sec. 21 of the Code. Mr. Bhatt submits that the obvious reason was that such an argument was untenable and that was the reason why no such argument was advanced. He has urged that the legislature in its wisdom while enacting this special law had given jurisdiction to a particular court depending upon the place where the minor ordinarily resides. Jurisdiction to a particular court was given not on the basis of the provisions of secs. 16 to 20 of the Code. Mr. Bhatt submits that there was good reason for making such special provision in the Special Act. The reason was that the court had to supervise the administration of the estate of the infants. Several statutory duties were cast upon the court. With that object in mind the court which could effectively deal with such problems was invested with the jurisdiction. ( 10 ) MR. Bhatt has invited my attention to the decision of a Division Bench of the Bombay High Court in Rev. Robert Ward v. Velchand Umedchand 11 Bombay Law Reporter 1137. Several statutory duties were cast upon the court. With that object in mind the court which could effectively deal with such problems was invested with the jurisdiction. ( 10 ) MR. Bhatt has invited my attention to the decision of a Division Bench of the Bombay High Court in Rev. Robert Ward v. Velchand Umedchand 11 Bombay Law Reporter 1137. It was held by the Bombay High Court that the Ahmedabad Court had no jurisdiction to appoint guardian of the minor for the minor was living in Baroda and had no other place of residence; and therefore Baroda was the place where he ordinarily resided within the meaning of sec. 9 of the Act. In my opinion this decision cannot be of much use in determining the question that is posed before me. In that case the place where the minor was found to be ordinarily residing was Baroda which was then a native State. In the instant case the District Court at Mehsana and the District Court Banaskantha at Palanpur both are the Courts working within the limits of the Gujarat State. It is true that at page 1143 in the last but one para it is observed :-IT is argued on behalf of the respondent (with what correctness we do not know) that the Mission House in Baroda where the minor is living in British Cantonment and is within the jurisdiction of the judicial District of Broach. It may be 80 but even if it is so that does not give jurisdiction to the District judge of Ahmedabad. THE order of the District Judge was therefore set aside. It does not appear that any argument was advanced before the Division Bench of the Bombay High Court that in view of the provisions of sec. 21 of the Code s even if the District Court at Broach had jurisdiction and the Ahmedabad District Court tad no jurisdiction the order passed by the District Court at Ahmedabad cannot be set aside unless it had occasioned a failure of justice. ( 11 ) SEC. 21 of the Code s even if the District Court at Broach had jurisdiction and the Ahmedabad District Court tad no jurisdiction the order passed by the District Court at Ahmedabad cannot be set aside unless it had occasioned a failure of justice. ( 11 ) SEC. 3 (b) of the Hindu Marriage Act 1 55 defines district Court as under :-DISTRICT Court means in any area for which there a City Civil Court hat court and in any other area the principal Civil Court of original jurisdiction and includes any other Civil Court which may be specified by the State Government by notification in the Official Gazette as having jurisdiction in respect of the matters dealt with in this Act. Sec. 19 of the Hindu Marriage Act 1955 reads :-EVERY petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction the marriage was solemnized or the husband and wife reside or last resided together. A mere perusal of this section indicates that the jurisdiction has been vested for entertaining applications under the said Act in the courts referred to therein. Jurisdiction given to those courts was depending upon several factors referred to therein It is further significant to note that there is specific sec. 21 which reads;subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf all proceedings under this Act shall be regulated as far as may be by the Code of Civil Procedure 1908in the Act with which we are concerned there is no such section High sec. 21 of the Hindu Marriage Act 1955 In sec. 4 (4) of the Act District Court has been defined as under :-DISTRICT Court has the meaning assigned to that expression in the Code of Civil Procedure and includes a High Court in the exercise of its ordinary original civil jurisdiction. In sec. 4 (5) the phrase the court has been defined as under :- the Court means (A) the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian. A plain reading of this sub-sec. (5) of sec. 4 of the Act indicates that the court has been given a specific meaning. A plain reading of this sub-sec. (5) of sec. 4 of the Act indicates that the court has been given a specific meaning. It means the District Court which has jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian. It is therefore evident that when a question is posed whether a particular court is the court within the meaning of phrase the court referred to in the provisions of this Act that question has to be answered by posing a question whether that court would have jurisdiction to entertain an application under that Act for an order appointing or declaring a. person to be a guardian. ( 12 ) CLAUSE (b) of it reads :-WHERE a guardian has been appointed or declared in pursuance of any such application (I) the Court which or the Court of the Officer who appointed or declared the the guardian or is under this Act deemed to have appointed or declared the guardian; or (II) in any matter relating to the person of the ward the District Court having jurisdiction in the place where the ward for the time being ordinarily resides; or (C) in respect of any proceeding transferred under sec. 4a the Court of the officer to whom such proceeding has been transferred. IT is thus evident that to meet with all the eventualities special specific provisions have been made in this section to indicate which court would have jurisdiction taking into consideration the aforesaid factors. In clauses (i) and (ii) even deeming provisions save been introduced. Furthermore sec. 4 (b) (ii) indicates that when the question relates to the person of the ward that District Court in the place where the ward for the time being ordinarily resides will have the jurisdiction. ( 13 ) IN view of certain provisions in sec. 4a for transferring the matters the Legislature by incorporating the provisions in clause (c) has indicated the court or officer to whom such proceeding has been transferred is included within the meaning of the word Court. ( 13 ) IN view of certain provisions in sec. 4a for transferring the matters the Legislature by incorporating the provisions in clause (c) has indicated the court or officer to whom such proceeding has been transferred is included within the meaning of the word Court. It is significant to note that the High Court has been given power to confer jurisdiction by general or special order on any officer exercising original civil jurisdiction subordinate to a District Court or authorise the Judge of any District Court to empower any such officer subordinate to him to dispose of any proceedings under this Act transferred to such officer under the provisions of this section (sec. 4a (1) of the Act ). It is significant to note that the Legislature has advisedly made these provisions for transfer and the transfer is not intended to be made under the provisions of sec. 24 of the Code. ( 14 ) SUB-SEC. (2) of sec. 4a of the Act further empowers the Judge of a District Court by an order in writing to transfer at any stage any proceeding under under this Act pending in his court for disposal to any officer subordinate to him empowered under sub-sec. (1) of sec. 4a of the Act. Similarly provision is made by sub-sec. (3) of it to transfer such proceeding from such officer to his own court. Sub-sec. (4) of it reads :-WHEN any proceedings are transferred under this section in any case in which a guardian has been appointed or declared the Judge of the District Court may by order in writing declare that the Court of the Judge or officer to whom they are transferred shall for all or any of the purposes of this Act be deemed to be the Court which appointed or declared the guardian. IN my opinion such specific provisions have to be made as in view of the definition of the phrase the court jurisdiction is restricted to the court or the officer as specified in sec. 4 (5) of the Act. ( 15 ) SEC. 7 empowers the court to appoint the guardian of the person or the minor or his property or both or to declare a person to be such a guardian. Sub-sec. 4 (5) of the Act. ( 15 ) SEC. 7 empowers the court to appoint the guardian of the person or the minor or his property or both or to declare a person to be such a guardian. Sub-sec. (2) of it indicates that an order passed under that section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the court. ( 16 ) SUB-SEC. (3) of sec. 7 of the Act indicates:-WHERE a guardian has been appointed by will or other instrument or appointed or declared by the Court an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Actanother significant fact to be borne in mind is that amongst the persons entitled to apply for such order not only the persons desirous of being or claiming to be the guardian of the minor or any relative or friend of the minor are included but even the Collector of the District or other local area within which the minor ordinarily resides or in which he has property or the Collector having authority with respect to the class to which the minor belongs has been given powers to initiate such proceedings. It is in the section following these sections that the provisions have been made for indicating which court will have jurisdiction to entertain such application. ( 17 ) SEC. 9 (1) of the Act in terms states:- (1) If the application is with respect to the guardianship of the person of the minor it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. IT is therefore evident that in view of this wording of sec. 9 (1) if the application is in respect of the guardianship of the person of minor it is to be made to the District Court having jurisdiction in the place where the minor ordinarily resides and to no other court. 18 Sub-sec. IT is therefore evident that in view of this wording of sec. 9 (1) if the application is in respect of the guardianship of the person of minor it is to be made to the District Court having jurisdiction in the place where the minor ordinarily resides and to no other court. 18 Sub-sec. (2) of it reads:- (2) If the application is with respect to the guardianship of the property of the minor it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property. I therefore means that if the application is with respect to the guardianship of the property of the minor it may be made to any one of the courts referred to therein. ( 18 ) ANOTHER significant fact to be borne in mind is that in view of the aforesaid sub-sec. (2) of sec. 9 of the Act there was a possibility of several courts having jurisdiction to entertain the application with respect to the guardianship of the property of the minor. It may be because the minor may be ordinarily residing in the jurisdiction of one District Court while he may have property in the jurisdiction of another District Court. To meet with that eventuality the District Court has been given power to safeguard the interest of the minor by sub-sec. (3 ). That sub-sec. (3) reads:- (3)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. IT is therefore evident that even in such a case the court has to return the application if in its opinion the application could be disposed of more justly or conveniently by any other District Court having jurisdiction; The obvious reason is that the Legislature intended that such application should be entertained by the court which could effectively deal with it and the property of the infant could be properly administered. ( 19 ) SEC. 10 of the Act deals with the particulars to be given in such an application. ( 19 ) SEC. 10 of the Act deals with the particulars to be given in such an application. Sec. 11 deals with procedure on admission of application. Sec. 12 deals with power to make interlocutory order for production of minor and interim protection of person and property. It is significant to note that even in sec. 12 of the Act the words used are the Court. The court has been empowered to direct the person if any having the custody of the minor to produce him or cause him to be produced at such place and time. The meaning of the words the Court used in this section will have to be given as contemplated by sec. 4 (5) of the Act. If the minor is ordinarily residing within jurisdiction of the court that court could effectively deal with such a situation and take necessary steps contemplated under sec. 12. Sec. 13 of the Act deals with bearing of evidence before making of order. Sec. 14 in my opinion throws flood of light on the question posed before me. It reads:- (1) If proceedings for the appointment or declaration of a guardian of a minor are taken in more Courts than one each of those Courts shall on being apprised of the proceedings in the other Court or Courts stay the proceedings before itself. (2) If the Courts are both or all subordinate to the same High Court they shall report the case to the High Court and the High Court shall determine in which of the Courts the proceedings with respect to the appointment or declaration of a guardian of the minor shall be had. (3) In any other case in which proceedings are stayed under sub-sec. (1); the Courts shall report the case to and be guided by such orders as they may receive from their respective State Governments. THE incorporation of such provisions in this section indicates that the Legislature intended to deal with all such eventualities and that appears to be the reason why they have made all these specific provisions in this special Act. ( 20 ) IN sec. 25 of the Act which deals with the custody of the minor if a ward leaves or is removed from the custody of a guardian of his person the words used are the Court. ( 20 ) IN sec. 25 of the Act which deals with the custody of the minor if a ward leaves or is removed from the custody of a guardian of his person the words used are the Court. I have already held that it is the District Court at Mehsana which would be the court referred to therein as the minor in question ordinarily resides within the jurisdiction of that court. It is significant to note that this section even empowers the court not only to make an order for the return of the ward but also for the purpose of enforcing the order to case the ward to be arrested and to be delivered into the custody of the guardian. . ( 21 ) SUB-SEC. (2) of sec. 25 of the Act indicates that for the purpose of arresting the ward the court may exercise the power conferred on a Magistrate of the First Class by sec. 100 of the Code of Criminal Procedure 1882 ( 22 ) SEC. 26 of the Act deals with removal of ward from jurisdiction. For such removal courts permission has to be taken. Sec. 27 deals with duties of guardian of property. Sec. 31 deals with practice with respect to permitting transfers under sec. 29 Sec. 32 deals with variation of powers of guardian of property appointed or declared by the court. Sec. 33 deals with right of guardian so appointed or declared to apply to the court for opinion in management of property of ward. Sec. 34 deals with obligations of guardian of property appointed or declared by the court. Sec. 39 empowers the court to remove the guardian appointed or declared by the court in case the case falls within any of clauses (a) to (f) referred to therein. Sec. 40 deals with discharge of guardian. The guardian has to be discharged by the court. Sec. 42 deals with the power of the court to appoint successor to the guardian in cases specified therein. Sec. 43 empowers the court to pass orders for regulating the conduct or proceedings of guardians and enforcement of those orders. Sec. 46 empowers the court to call upon the Collector or upon any court subordinate to it for a report on any matter arising in any proceeding under the Act. Sec. 47 enumerates the orders which are made appealable. ( 23 ) SEC. Sec. 46 empowers the court to call upon the Collector or upon any court subordinate to it for a report on any matter arising in any proceeding under the Act. Sec. 47 enumerates the orders which are made appealable. ( 23 ) SEC. 48 of the Act states:-SAVE as provided by the last foregoing section and by sec. 622 (sec. 115 of the Civil Procedure Code 1908 of the Civil Procedure Code an order made under this Act shall be final and shall not be liable to be contested by suits or otherwise. THESE are the material sections which give us some indication regarding the mind of the Legislature. Looking to the scheme of the Act and the object of this Act in my opinion such a proceeding can be entertained by the court referred to in the relevant provisions of this Act. If the provisions of sec. 21 of the Code are invoked I am of the opinion the real object of this Act which is to deal with the minors and their property effectively by that court will be frustrated to a large extent. Looking to the scheme of the Act therefore in my opinion the provisions of sec. 21 of the Code cannot be pressed in to service. 25 It is significant to note that sec. 141 of the Code clearly states that the procedure provided in this Code in regard to suits has to be followed as far as it can be made applicable in all proceedings in any court of civil jurisdiction. In view of the specific provisions in the Special Act in my opinion provisions of sec. 21 of the Code cannot be made applicable. It is significant to note that the court dealing with such applications under the Act does not become functus officio on mere appointment of a person or declaration of a guardian of the person of the minor or his property or on making an order as to the custody. The court has to take follow up actions and perform supervisory duties. Court has to perform several obligations referred to in the Act. I therefore reject this submission made on behalf of the respondent by Mr. Majmudar. This submission therefore fails. ( 24 ) THE order passed on 20th June 1972 therefore does not require to be changed or modified in any manner. .