JUDGMENT - H.W. DHABE, J.:---This is a revision by the applicant-husband whose petition for declaration and appointment as the guardian of the person and property of his minor child under section 10 of the Guardians and Wards Act, 1890 (for short, "the Act") is stayed by the learned trial Court under section 10 of the Code of Civil Procedure (for short, "the C.P.C."). Briefly, the facts are that the applicant was married to the non-applicant on 5-6-1968 in Tejpur, in the State of Assam. A daughter was born out of their wedlock on 21-5-1969. However, it appears that there were bickerings between the husband and the wife thereafter and the wife i.e. the non-applicant No. 1 instituted against the applicant-husband divorce proceedings at Tejpur in Title Suit Hindu Matrimonial petition No. 2 of 1978 which are, I am told by the parties, pending before the District Judge, Tejpur. It is clear from the prayer in her petition for divorce (see document No. 2, prayer clause) that she claimed in the divorce proceedings the following reliefs: "It is prayed, therefore, that the petition be admitted, notice be issued on the respondent and the marriage be dissolved by a decree of divorce, it be further ordered that he be directed to return the gifts made to her at the time of the wedding at Tejpur, the wrist watch, radio, set of gold buttons, gold ring set with a jewel which was presented to him at the marriage or money value thereof, and to pay a monthly sum of Rs. 300/- for the education and maintenance of the child until she is married away or is able to maintain herself." "It is also prayed, that the petitioner be appointed guardian for the minor child Monideepa Mukherjee until she attains majority. And she may be allowed to be kept in the custody of the petitioner pending disposal of this proceeding." It is, therefore, clear from the above petition filed by the non-applicant No. 1 that in the divorce proceeding she has claimed orders relating to custody, maintenance and education and also the guardianship of her minor daughter, under section 26 of the Hindu Marriage Act, 1955. The said proceedings were instituted by her on or about 4-5-1978. 2. The said proceedings were instituted by her on or about 4-5-1978. 2. In the said proceedings filed by the non-applicant No. 1 she also claimed interim orders for her maintenance as well as for custody, maintenance and education of her minor daughter under section 24 of the Hindu Marriage Act, 1955 pendents lite. The learned District Judge by his order dated 20-3-1979 (Document No. 4) granted custody of the minor child to the non-applicant No. 1 mother and varied with effect from June 1978 maintenance allowance from Rs. 150/- to Rs. 200/- for proper maintenance and education of the minor daughter. It is thus clear that by the order of the learned District Judge in the aforesaid cause the minor daughter is under the custody of her mother and the applicant is directed to pay an allowance of Rs. 200/- for her maintenance and education. 3. When the aforesaid divorce proceedings were going on end in fact after the aforesaid order relating to custody, maintenance and education of his minor daughter was passed in the said proceedings initiated by the non-applicant No. 1 at Tejpur, the applicant who is in service in the Geological Survey of India at Nagpur, filed the instant application under the Act. In the instant application the applicant has claimed in himself a declaration of being and or for his appointment as the guardian of the person as well as the property of his minor daughter. The non-applicant No. 1 made an application in the instant proceedings before the trail Court under section 10 of the C.P.C. claiming that since the question of guardianship was the subject-matter of the previous proceedings instituted by her in T.S. Hindu Marriage Petition No. 2 of 1978 against the applicant under the Hindu Marriage Act till the said proceedings are finally decided the instant proceedings should be stayed. The applicant resisted the said application upon several grounds including the ground that the provisions of section 10 of the Act are not applicable to the instant proceedings. 4. The learned trial Court held that in view of section 141 of the C.P.C. the provisions of section 10 of the C.P.C. are applicable to the instant proceedings. He further held that the substantial question involved in both the proceedings, is the same viz. 4. The learned trial Court held that in view of section 141 of the C.P.C. the provisions of section 10 of the C.P.C. are applicable to the instant proceedings. He further held that the substantial question involved in both the proceedings, is the same viz. whether the wife or the husband is entitled to get the custody of the minor child during the pendency of the matrimonial proceedings initiated by the wife and also after its conclusion the question of guardianship being not of much significance because the husband is statutorily the natural guardian of the minor. He also held that if the proceedings are held simultaneously they are likely to lead to a conflict of decision on the same point. Therefore, with a view to avoid multiplicity of suits and conflicting decisions he detected stay of the instant proceedings until the disposal of the T.S. Hindu Matrimonial Petition No. 2 of 1978 pending on the file of the District Judge, Tejpur in the State of Assam. Being aggrieved, the applicant husband has preferred the instant revision in this Court. 5. Before I proceed to consider the merits of the contentions raised on behalf of the applicant it is necessary to refer to the most important question relating to the jurisdiction of the learned trial Court either to entertain the application or to proceed with the same. If the learned trial Court has no jurisdiction in the matter in my view it would be futile to keep the proceedings pending in the trial Court by exercising the power under section 10 of the C.P.C. I am told at the Bar that the said question was raised on behalf of the non-applicant No. 1 before the trial Court but the consideration of the same postponed. Section 9(1) of the Act provides that an application with respect to the guardianship of the person of the minor shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. In the instant case the minor appears to be residing with the non-applicant No. 1 at Tejpur as is clear from the orders in the matrimonial case referred to above granting custody of the minor to the non-applicant No. 1. In the instant case the minor appears to be residing with the non-applicant No. 1 at Tejpur as is clear from the orders in the matrimonial case referred to above granting custody of the minor to the non-applicant No. 1. If it is, therefore, found that the minor ordinarily resides at Tejpur then the District Court at Nagpur will have no jurisdiction to consider the application of the applicant for guardianship of the person of the minor daughter. 6. As regards the guardianship of the property it is provided in section 9(2) of the Act that if the application is with respect to the guardianship of the property of the minor the application in that regards can be filed either in the District Court having jurisdiction in the place where the minor ordinarily resides or in the District Court having jurisdiction in a place where he/she has property. However, sub-section (3) of section 9 makes it clear that if the application with respect to the guardianship of the property of the minor is made to the District Court other than that having jurisdiction in the place where the minor ordinarily resides, the said Court may return the application if in its opinion the application would be disposed of more judiciously and conveniently by any other Court having jurisdiction. It is clear from reading sub-sections (2) and (3) of section 9 that although the District Court at Nagpur may have jurisdiction to appoint the guardian of the property of the minor daughter in the instant case because some property of the minor may be situated within its jurisdiction it is open to the trial Court to return the said application to the applicant if in his opinion and the said application can be disposed of more justly or conveniently by any other Court having jurisdiction. 7. 7. In the instant case if it is found that the minor ordinarily resides at Tejpur in the State of Assam the District Court at that place would also have jurisdiction in regard to the application for guardianship of the property of the minor daughter and in that even taking into consideration the facts and circumstances in this case and particularly the fact that the minor is living far away from the Nagpur Court in the State of Assam and bearing in mind the paramount consideration of the welfare of the minor the trial Court can consider whether the application for guardianship of the property should be returned to the applicant on the ground that it can be more justly and conveniently disposed of by the District Court at Tejpur. It should be borne in mind that sometimes it may be necessary to interview the minor to consider his/her views particularly when he/she has reached the age of understanding as in the instant case. It may be emphasized that not only justness but convenience is also a criteria for application of sub-section (3) of section 9. In my view, in the interest of justice and from the point of view of welfare of the minor it was necessary for the learned trial Court to consider the above jurisdictional question first before deciding the application of the non-applicant No. 1 under section 10 of the C.P.C. I, therefore, direct the learned trial Court to decide first the question of jurisdiction in accordance with the provisions of section 9 and/or any other provisions of the Act applicable in the instant case, although I am deciding the other contentions raised in this case with a view to avoid multiplicity of the proceedings in case the learned trial Court decides to proceed with the instant case either partly or wholly. 8. Turning now to the contentions raised on behalf of the applicant the principal contention is that section 10 is not applicable in the instant case. The submission is that the whole of the application in the instant case cannot be decided by determination of any of the issues in the matrimonial case for divorce filed by the non-applicant No. 1 in the District Court at Tejpur. The submission is that the whole of the application in the instant case cannot be decided by determination of any of the issues in the matrimonial case for divorce filed by the non-applicant No. 1 in the District Court at Tejpur. The submission is that under the provisions of the Hindu Marriage Act there is no power to the Court to consider the question of guardianship of property of the minor. The further submission is that under section 26 of the said Act the only power conferred is with regard to the custody and maintenance of the minor. It may be seen that section 26 of the Hindu Marriage Act empowers the Court to pass any interim orders and make any provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of the minor children consistently with their wishes wherever possible and can pass even after the decree is passed such orders from time to time as are necessary in the interest of the minor. 9. It is thus urged on behalf of the applicant that the question of guardianship of the property is not within the purview of the Court having jurisdiction to try the proceedings under the Hindu Marriage Act and, therefore, when the whole of the proceedings under the Act cannot be decided on the basis of any decision in the matrimonial case filed by the non-applicant No. 1 the provisions of section 10 of the C.P.C. would not apply. It is contended that at any rate the proceedings relating to the guardianship of the property cannot be stayed under section 10 of the C.P.C. On the other hand, it is contended on behalf of the non-applicant No. 1 that the subject matter of the list in both the cases is substantially the same and since the important question about the custody of the minor is in issue in both the proceedings the instant proceedings should be stayed under section 10 of the C.P.C. Both the parties have relied upon several decisions of the High Courts and upon two decisions of the Supreme Court in the case of (Padam Sen v. State of U.P.)1, A.I.R. 1961 S.C. 218 and (Manohar Lal v. Seth Hiralal)2, A.I.R. 1962 S.C. 527. 10. 10. One of the test made applicable for application of the principles of res judicata incorporated under section 11 of the C.P.C. is to find out whether the matter in issue in the subsequent suit was directly and substantially in issue in a previously instituted suit. With that view in mind let me examine the provisions of the Act. Section 4(2) defines the expression "guardian" to mean a person having the care of the person of a minor or of his property, or of both his person and property. Section 7 empowers the Court to appoint a guardian of the person or property, or of both, of the minor or to declare a person to be such a guardian if it is necessary for the welfare of the minor. Sub-section (2) of section 7 provides that an order made under this 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. Sub-section (3) of section 7 then provides that 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 Act. 11. Section 15(4) enables the Court to appoint or declare separate guardians of the person and of the property of a minor. Section 24 provides that a guardian of the person of a ward shall be charged with the custody of the ward and should look to his support, health and education and such other matters as the law to which the ward is subject requires. Section 25(1) enables the Court to pass the orders for return of the custody of the minor to the guardian if a ward leaves or is removed from the custody of the guardian and if in the opinion of the Court it would be for the welfare of the minor or return the custody of the minor to his guardian. Section 26(1) provides that a ward shall not be removed from the limits of the jurisdiction of the Court except with the leave of the Court. Section 26(1) provides that a ward shall not be removed from the limits of the jurisdiction of the Court except with the leave of the Court. Section 27 provides that the guardian of the property of a ward is bound to deal therewith as carefully as a man of ordinary prudence would deal with it if it were his own property. 12. The above provisions of the Act and, in particular section 7, empowers the Court to declare any person or to appoint any person as the guardian of the person and the property of the minor if it is in the interest or the welfare of the minor. It may be at this stage seen that section 6 of the Hindu Minority and Guardianship Act, 1956 lays down who the natural guardians of a Hindu minor are. In fact according to the said provision the applicant who is the father of the minor daughter is a natural guardian of the person and the property of his minor daughter. It may be seen that the provisions of section 7 of the Act are wide enough to appoint as guardian any person other than a natural guardian if it is necessary to do so in the interest or the welfare of the minor. Be that as it may, since I am not concerned with that aspect in the present revision, suffice it to say, that the provisions are comprehensive enough in regard to the question of the appointment of a guardian of the person and the property of the minor. 13. However, as already pointed out it is clear that there is no provision in the Hindu Marriage Act so far as the declaration or appointment of the guardian for the property of the of the minor is concerned. Even as regards the appointment of the guardian of the person of the minor it is urged that only the question of custody of minor is covered under section 26 of the Hindu Marriage Act and, therefore, all other matters relating to the question of the guardianship of the person of the minor would be outside the purview of section 26 of the said Act. What is submitted is that the concept of guardianship of the person is wider than the concept of mere custody of the person of the minor. What is submitted is that the concept of guardianship of the person is wider than the concept of mere custody of the person of the minor. In the definition of the word "guardian" what is covered is the care of the person of the minor and the expression "care" is according to the learned Counsel for the applicant wider than mere custody. He has drawn my attention to the provisions of section 24 of the Act in which it is provided that a guardian of a person of a ward charged with the custody of the ward and must look to his support, health and education and such other matters as the law to which the ward is subject requires. It is urged that all matters relating to the welfare of the person of the minor such at his education, maintenance etc. are covered under the expression "care of the person of a minor". The submission, therefore, is that all questions except custody of the minor would be open in the instant proceedings instituted by the applicant. 14. In my view although the above interpretation of the provisions of the Act in relation to the concept of the guardianship of the person of the minor is correct the limited view put forth on behalf of the applicant as regards the interpretation of section 26 of the Hindu Marriage Act is not correct. It is expressly provided in section 26 of the Hindu Marriage Act that the Court in any proceeding under the said Act can make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of the minor children which would show that not only the question of custody but the question of education and maintenance of the minor are also covered thereunder. According to me, the above matters represented the important aspects of the guardianship of the person of the minor and, therefore, all the important questions relating to the guardianship of the person of the minor are covered in section 26 of the Hindu Marriage Act. In fact in the instant case the learned District Court at Tejpur has passed interim orders as regards the custody as well as the maintenance of the minor which are within his jurisdiction in view of the provisions of section 26 of the Hindu Marriage Act. In fact in the instant case the learned District Court at Tejpur has passed interim orders as regards the custody as well as the maintenance of the minor which are within his jurisdiction in view of the provisions of section 26 of the Hindu Marriage Act. The considerations of criteria in regard to the appointment of the custody etc. of the minor under section 26 of the Hindu Marriage Act are the same as under the provisions of the Act. The contention, therefore, on behalf of the non-applicant No. 1 that the issues as regards the guardianship of the person of the minor are directly and substantially the same in both these proceedings has, therefore, to be upheld. 15. The next question is whether there can be partial stay under section 10 of the C.P.C. in regard to the question of guardianship of the person of the minor. The important question in that regard would be whether it is necessary to appoint the same person as a guardian of the person of the minor as well as of his property. If it is obligatory to appoint the same person as the guardian of the person and the property of the minor then necessarily the whole of the proceedings under the provisions of the Act would have to be stayed. However, from the provision of the Act it is clear that it is not necessary that the same person should be appointed as the guardian of the person and the property of the minor. Section 15(4) enables the Court to appoint separate guardians for the person and of the property of the minor. But, although the appointment of any separate persons can be made as the guardian of the person and the property of the minor it will have to be borne in mind whether it will be advisable and in the interest of the minor to appoint a common person to be the guardian of his person and the property which question would depend upon the circumstances in each case. Legally, however, it is open to the Court to appoint a separate person as a guardian of the property of the minor under the Act. Legally, however, it is open to the Court to appoint a separate person as a guardian of the property of the minor under the Act. Since the person appointed as a guardian of the person of the minor under the Hindu Marriage Act thus need not necessarily be appointed as a guardian of the property of the minor, the proceedings in regard to the guardianship of the property of the minor can continue since as already pointed out there is no provision under the Hindu Marriage Act for appointment of a guardian of the property of the minor. It is, however, made clear as shown above that it is open to the Court in the instant proceedings under the Act to appoint the same person as the guardian of the property of the minor daughter who is appointed as guardian of her person. 16. As regards the submission on behalf of the non-applicant No. 1 that under section 10 of the whole suit needs to be stayed, in my view, there is no merit in the said submission particularly in the facts and circumstances of this case where although a common application is filed for the appointment of the guardian of the person and the property of the minor under the Act in fact they are two separate proceedings for which certain different considerations in regard to the welfare of the minor may arise. The subject-matter of the application in the instant case in regard to the guardianship of the property of the minor can therefore, be considered and decided under the Act. The proceedings in the instant case relating to the guardianship of the person of the minor thus can be stayed under section 10 of the C.P.C. whereas the proceedings relating to the guardianship of the property of the minor can continue, if as already stated, the learned trial Court holds that it has jurisdiction to proceed or that if has jurisdiction to proceed it would be just and convenient to proceed in the matter. 17. In the result, the instant revision is only partly allowed. 17. In the result, the instant revision is only partly allowed. If the trial Court holds that it has jurisdiction to entertain the application for declaration and appointment of the guardian of the person of the minor it shall stay the proceedings relating thereto under section 10 of the C.P.C. If the learned trial Court holds that it has jurisdiction to entertain the application for appointment of the guardianship of the property of the minor and further that it would be just and convenient to proceed with the said matter it is open to the learned trial Court to proceed and decide the question of guardianship of the property of th 1987(1) Bom.C.R. 83