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2008 DIGILAW 151 (PAT)

Rekha Gupta v. Devenandan Prasad Gupta

2008-01-22

body2008
ORDER Heard the learned counsel for the petitioners and counsel appearing on behalf of the opposite party. 2. This application has been filed on behalf of the petitioners for transferring the Guardian Case No. 10 of 2007 from the Principal Judge. Family Court, Munger to the Principal Judge, Family Court, Nalanda at Biharsharif. 3. The petitioner no.1 was married to the son of the opposite party and they had one son out of their wedlock born on 9.8.1999. In the year 2004 the husband of the petitioner no.1 left his house and he has not returned since then. 4. The opposite party filed a original case for being appointed the guardian of the person and property of the minor, namely, Mehul Raj son of the petitioner no.1. 5. Learned counsel appearing on behalf of the petitioners submits that the petitioner no.1, her son and her father have been made parties in the case under the Guardians and Wards Act, 1890 and they are living at Nalanda at Biharsharif and it is very inconvenient for them to appear at Munger where the case has been registered. It is stated that the petitioner no.1 and her son have been living at Nalanda at Biharsharif for the past three years ever since the petitioner's husband had left his home, and as such, it has been submitted that the case should be transferred to the Family Court, Nalanda at Biharsharif. 6. It is also an admitted fact that the petitioners had filed an application before the Family Court, Munger under Section 9 of the Guardians and Wards Act stating therein that the Family Court, Munger did not have the jurisdiction to hear the case under the Guardians and Wards At (hereinafter referred to as "the Act") in view of the provisions of Section 9 of the aforesaid Act. 7. Learned counsel for the opposite party submits that in view of the fact that the petitioners have already filed an application under Section 9 of the Act. There is no occasion for this court to exercise the jurisdiction under Section 24 of the Code of Civil Procedure. 8. 7. Learned counsel for the opposite party submits that in view of the fact that the petitioners have already filed an application under Section 9 of the Act. There is no occasion for this court to exercise the jurisdiction under Section 24 of the Code of Civil Procedure. 8. According to the learned counsel appearing on behalf of the petitioners the scope of Section 24 is different to the scope of Section 9 of the Act inasmuch the Section 24 is general provision and confers power to the High Court to transfer the case from one Judgeship to another. Whereas Section 9 of the Act defines the territorial jurisdiction where the case ought to have been filed. 9. It would be relevant to quote Section 9 of the Act: "9. Court having jurisdiction to entertain application :-(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. (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. (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." 10. Having given the provisions of Section 9 of the Act, I would like to refer annexure-1, which is application filed by the opposite party for being appointed as guardianship of the person and property of the minor Mehul Raj. 11. Paragraph No. 2(E) clearly states that Rekha Gupta wife of Prabhat Gupta is presently residing at Kagjee Mohalla, Thana Biharsharif, in the district of Nalanda. "It is further pertinent to mention that thereafter the daughter-in-law-Rekha Gupta and his grandson lived with the applicant but all of a sudden she left Jamalpur and went to Nalanda (her naihar) on 20.11.2004. 11. Paragraph No. 2(E) clearly states that Rekha Gupta wife of Prabhat Gupta is presently residing at Kagjee Mohalla, Thana Biharsharif, in the district of Nalanda. "It is further pertinent to mention that thereafter the daughter-in-law-Rekha Gupta and his grandson lived with the applicant but all of a sudden she left Jamalpur and went to Nalanda (her naihar) on 20.11.2004. When the applicant went to get his daughter-in-law and grandson Mehul Raj back to Jamalpur, his daughter-in-law flatly refused to come back to Jamalpur. The respondent no. 2 used filthy language and threatened him not to Come again otherwise the applicant shall have to face dire consequences or may also be subjected to jail in false and frivolous cases." 12. It appears from the pleadings that the opposite party himself has accepted that his minor grandson and daughter-in-law ordinarily reside "at Nalanda". It is thus submitted by the counsel appearing on behalf of the petitioners that on the own pleadings of the opposite party the Court ought to have returned the p1aint to the competent court. It is pointed out that even with respect to the Guardianship of the property the provision is that District Court which has jurisdiction gives preference to the place where the minor ordinarily resides. It also confers jurisdiction to a District Court where the property is situated. However, I may observe that there cannot be two conflicting decision with respect to the same or similar subject matter i.e., guardianship of person and property and it would be proper that the matter of guardianship should be heard by the Court hearing the application for Guardianship of the person of the minior. 13. It is clear that minor is living with the mother who resides at Nalanda (Biharsharif) and undoubtedly the petitioner no.1 would have to face great hardship, if she were to travel to Munger on each and every date to contest a suit for guardianship of the person/property of the Minor. 14. The law appears to be quite clear so far as the jurisdiction of the court is concerned. But this Court is not exercising its power under section 9 of the Guardians and Wards Act. 15. 14. The law appears to be quite clear so far as the jurisdiction of the court is concerned. But this Court is not exercising its power under section 9 of the Guardians and Wards Act. 15. In the present case there is an application pending in the lower court with respect to the jurisdiction of the court but over and above that the power of the transfer of the case under Section 24 of the Code of Civil Procedure is general in nature and the High Court can consider the question of convenience as well as any other factors for the purpose of transferring the case from one Judgeship to the other. In this case the mother and the child would have to travel to Munger which would be a problem for them as the child is school going age and his studies would be disrupted and his life would be disturbed if he had to be dislocated in this manner. As such the transfer application is allowed. 16. In the result the Guardian Case No. 10 of 2007 is transferred from the Principal Judge, Family Court at Munger to the Principal Judge, Family Court, Nalanda at Biharsharif. It may say that the share of the minor can be defined after full-fledged hearing.