Bibi Birjis Jahan v. Sayed Jameel Ahsan — 1984 DIGILAW 229 (PAT)

JUDGMENT : 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. 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 Patna Court has no jurisdiction to entertain the application, the ORDER :amounts to refusal to appoint the appellant as the guardian and, therefore, the appeal is covered by clause (a). The argument does not appear to be correct. Mr. Asghar Hussain contended that since by the impugned ORDER :the Additional District Judge held that the Patna Court has no jurisdiction to entertain the application, the ORDER :amounts to refusal to appoint the appellant as the guardian and, therefore, the appeal is covered by clause (a). The argument does not appear to be correct. Clause (a) cannot be interpreted in isolation. It hat 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. By expressly providing an appeal against an ORDER :of return of an application under section 9 (3) and by omitting a similar provision from the Act in regard to other applications, the legislature clearly intended to confine the right of appeal to an ORDER :returning an application with respect to the guardianship of the property of a minor. I, therefore, hold that no appeal lies under section 47 (a) of the Act against an-ORDER :returning an application for appointment of a guardian of the person of a minor. The present appeal, therefore cannot be entertained. 7. Mr. Asghar Hussain, in the alternative, contended that this Court should• exercise its revisional powers conferred by section 115 of the Code of Civil Procedure and set aside the impugned ORDER :. The respondent no. 2 claimed that the section has no application to cases arising under the Guardians and Wards Act. Mr. Hussain referred to several decisions applying section 115 of the Code to the proceedings, under Special Acts, and urged that the section must be liberally construed so' as to cover the present case. I do not find any difficulty in holding that section 115 is available in appropriate cases, under the Guardians and Wards Act. Section 48 of the Act which is quoted below refers to the revisional power under the Code in express terms :- "48. I do not find any difficulty in holding that section 115 is available in appropriate cases, under the Guardians and Wards Act. Section 48 of the Act which is quoted below refers to the revisional power under the Code in express terms :- "48. Finality of other ORDER :s-Save as provided by the last foregoing section and by section 622 of the Code of Civil Procedure, an ORDER :made under this Act shall be final and shall not be liable to be contested by suit or otherwise." The reference to section 622 of the earlier Code has now to be read as that to section 115 of the 1908 Code. 8. Since the controversy in the case before me concerns the jurisdiction of the court be- low, it is fit to be considered and resolved under section 115 of the Code. I. therefore, proceed now to consider the point on merits. 9. The jurisdiction of the Court entertaining an application under section 9 of the Act in connection with the guardianship of the person of a minor is dependant on the minor ordinarily residing within its territorial jurisdiction. The expression ordinary residence of the 'minor' has not been defined in the Act. Mr. Hussain contended that although the minor boy was staying in Jamshedpur with his father when the application was filed in the court below and for a considerable period thereafter, he must be treated to be ordinarily resident of Patna also as he sometimes came during the holidays to Patna and stayed with his grand-father. The learned Additional District Judge has considered the evidence led by the parties in great detail and has recorded a finding against the appellant and I agree with his conclusion. 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, respondent no. 2. The point was considered by a Division Bench of this Court in Lakshmi Devi v. Chand rakala Saraogi (A. I. R. 1975 Patna, 83) (of which I was a member) and the observations made therein support the respondents. I, therefore, do not find any error in the finding of the court below. 10. 2. The point was considered by a Division Bench of this Court in Lakshmi Devi v. Chand rakala Saraogi (A. I. R. 1975 Patna, 83) (of which I was a member) and the observations made therein support the respondents. I, therefore, do not find any error in the finding of the court below. 10. Before concluding, I would like to state that during the course of the hearing of the appeal, the parties as also the minor were present in Court on one occasion and a futile attempt was made-to settle the dispute amicably. At that stage, it appeared toot there has further been a change in the residence of the minor and his father. In that view, if the appellant decides to file another application in connection with the guardianship matter, she will have to take fresh legal opinion about the place where a proceeding in this respect can be commenced. 11. I would also like to mention that during his argument, the respondent no. 2 repeatedly suggested that the counsel for the appellant were guilty of playing fraud on this Court by filing the present appeal which was not maintainable and in not stating all the relevant circumstances leading to the case which they were under a duty to do. The respondent's grievance in this respect does not have any merit whatsoever and this Court, therefore, need not take any step against any of the advocates suggested by him. 12. In the result, this appeal is dismissed but, in the circumstances, without costs.