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1986 DIGILAW 260 (CAL)

PRASANNA KUMAR ROY v. .

1986-06-26

MUKHERJEE, SUSANTA CHATTERJI

body1986
MUKHERJEE, SUSANTA CHATTERJI ( 1 ) IN this Reference the point is whether a District Judge can transfer to an Additional District Judge an application with respect to guardianship either of the person or the property of a minor. In spite of service of notice none of the parties have appeared either in support of or to oppose this Reference made by the learned Additional District Judge, Jalpaiguri. ( 2 ) AT the outset we may point out that S. 4a of the Guardians and Wards Act, 1890 had no manner of application to the facts of the present case. Our attention "was not drawn to any general or special order under sub-s (1) of S. 4a of the Guardians and Wards Act, 1890 made by the Court empowering the Additional District Judges to dispose of the proceeding under the said Act or authorizing the District Judges to empower any officer subordinate to them to dispose of such proceeding. Only when jurisdiction is conferred under S. 44 (1) of the said Act, the Judge of a district court may be an order in writing under sub-s. (2) of S. 4a of the said Act transfer at any stage any proceeding under the Guardians and Wards Act pending in his court for disposal of any officer subordinate to him empowered under sub-s. (1) of the said section. ( 3 ) SUB-SECTION (1) of S. 7 of the Guardians and Wards Act 1890 provides :-"where the court is satisfied that it is for the welfare of a minor that an order should be made - (a)appointing a guardian of his person property, or both or (b)declaring a person to be a such a guardian, the Court may make an order accordingly. " ( 4 ) ACCORDING to clause (5) of S. 4 of the said Act 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 guardian; or (B)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 that 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 S. 4a the court of the officer to whom such proceeding has been transferred. ( 5 ) CLAUSE (4) of S. 4 lays down that the term District Judge, has the meaning assigned to that expression in the Civil Proceeding Code and includes a High Court in the exercise of its Ordinary Original Civil Jurisdiction. We set according to S. 2 (4) of the Code of Civil Procedure, 1908 of the expression "district" which means the local limits of the jurisdiction of a principal court of original jurisdiction (hereinafter called a district court) and includes the local limits of the Ordinary Original Civil Jurisdiction of a High Court. ( 6 ) IN each district, the District Judge is unquestionably the principal civil court of original jurisdiction. Sub-sections (1), (2) and (3) of S. 9 of the Guardians and Wards Act, 1890 require applications referred to in the said sub-sections shall be made only to the district courts, i. e. the judge of the principal civil court of original jurisdiction. In other words, applications in respect of the guardianship of the person or property of a minor can be presented only before the District Judge. The guardians entertain applications under the Act. The Guardians and Wards Act does not establish or create special courts nor does the Act constitute the District Judge a persona designate. Additional jurisdiction under the Act has been conferred upon the court of the District Judge which is amongst the classes of courts mentioned in S. 3 of the Bengal, Agra and Assam Civil Courts Act, 1887. The Guardians and Wards Act does not establish or create special courts nor does the Act constitute the District Judge a persona designate. Additional jurisdiction under the Act has been conferred upon the court of the District Judge which is amongst the classes of courts mentioned in S. 3 of the Bengal, Agra and Assam Civil Courts Act, 1887. ( 7 ) THE State Government under S. 8 (1) of the Bengal, Agra and Assam Civil Courts Act after consulting the High Court may appoint additional Judges when business pending before any District Judge requires the additional judges for its speedy disposal. Sub-section (2) of S. 8 of the Bengal, Agra and Assam Civil Courts Act provides that additional judges so appointed shall discharge any of the functions of a District Judge which the District Judge may assign to him in the and discharge those functions, they shall exercise the same powers as the District Judge. It is settled law that on transfer or assignment of a particular case to him by the District Judge under S. 8 (2) of the said Act, the Additional District Judge has all the powers, authority and jurisdiction of the learned District Judge himself so far as the case transferred to him (see Full Bench decision in the case of Rup Kishore v. Mt. Neman Bibi 19 CWN 791 : 1916 Cal 561, Mohabir Rahaman v. Hazi Abdur Rahaman ILR 48 Cal. 53, Lal Behari v. Akhil Chandra 27 Calwn 315 see also the other cases mentioned at page 250 of the decision of P. N. Mukherjee and Niyogi, JJ. in the case of Ajit Kumar Bhunia v. Kanan Bala Devi 64 CWN 246 ). ( 8 ) IN fact, the point raised in this Reference is practically concluded by the aforesaid decision of the Division Bench in the case of Ajit Kumar Bhunia v. Kanan Bala Devi (supra ). The Division Bench considered, inter alia, the question whether a petition under the Hindu Marriage Act, 1955 which is presented in the district court could be transferred under S. 8 (2) of the Bengal, Agra and Assam Civil Courts Act to an Additional District Judge for disposal. The Division Bench considered, inter alia, the question whether a petition under the Hindu Marriage Act, 1955 which is presented in the district court could be transferred under S. 8 (2) of the Bengal, Agra and Assam Civil Courts Act to an Additional District Judge for disposal. P. N. Mookerjee, J. who delivered the judgment in the case of Ajit Kumar Bhunia v. Kanan Bala Devi (supra), elaborately considered the question and upheld the jurisdiction of the Additional District Judge to hear a petition under the Hindu Marriage Act upon assignment made by the District Judge. We respectfully follow the said decision in Ajit Kumar Bhunia v. Kanan Bala Devi (supra), and apply the ratio of the said decision for answering this Reference. ( 9 ) THE Guardians and Wards Act also requires that applications under the said Act shall be made, i. e. presented before the District Judge. In other words, the District Judge alone can entertain applications under the said Act. He may himself finally dispose of such applications or may assign such applications to Additional District Judges. When the District Judge assigns an application to an additional district judge, the additional district judge shall discharge the functions of the District Judge and exercise his powers under the Guardians and Wards Act, 1890. ( 10 ) IN the above view, we dispose of this Reference by giving our opinion that a District Judge under S. 8 (2) of the Bengal Agra and Assam Civil Court Act, 1887 may assign any particular application under the Guardians and Wards Act, 1890 which had been presented before the District Judge and upon such assignment the Additional District Judge may exercise same powers as the District Judge. The Additional District Judge to whom a case is assigned under S. 8 (2) of the Bengal, Agra and Assam Civil Courts Act cannot question the authority of the District Judge to make the said assignment. Susanta Chatterjee, J : I agree. . .