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2012 DIGILAW 995 (AP)

Bula Yedukondalu v. .

2012-10-09

N.RAVI SHANKAR, V.ESWARAIAH

body2012
Judgment Order of the Court Appellant in this civil miscellaneous appeal is the applicant in Guardian O.P.No.120 of 2009 on the file of the Court of the Principal District Judge, East Godavary, Rajahmundry (District court). He filed that OP for appointing him as guardian of the minors Mande Naga Vinay and Mande Devi and for their property. That OP was dismissed by the District Court by order dated 15.09.2009. It is the correctness of that order which is questioned in this appeal. 2. It is not necessary to go into all the facts and circumstances under which the appellant claims to be appointed as guardian of the minors and their property. It would be sufficient to note that the appellant earlier filed a similar application i.e. O.P.No.19 of 2007 before the District Court but that was made over by that court to the Family Court at Rajahmundry and was re-numbered there as O.P.No.59 of 2008 and it was decreed by the Family Court by its order dated 18.06.2008. 3. On the plea that the Family Court has no jurisdiction to appoint a person as guardian for the property of minors and therefore the decree granted by the Family Court is null and void, the appellant again filed the present OP seeking his appointment as guardian of the aforesaid minors and their property. The District Court dismissed the present OP by the impugned order on the ground that the appellant should have taken objection to the jurisdiction of the Family Court before that court itself and since he failed to do so, the decree passed by the Family Court must be held to be in force until it is set aside and consequently the present OP is not maintainable. 4. It may be noted that Section 7 of the Family Courts Act, 1984 (for short Act), specifies the matters over which the Family Court can exercise jurisdiction. Sub-section (1) of section 7 says that a Family Court shall have and exercise all the jurisdiction exercisable by any District Court or any Subordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation to that sub-section. The Explanation contains clauses (a) to (g) specifying about the suits having regard to their nature. The Explanation contains clauses (a) to (g) specifying about the suits having regard to their nature. Clause (g) of the said Explanation says “a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor”. This clause (g) read with Sub-section (1) of section 7 of the Act thus says that a Family Court can have jurisdiction only in respect of a suit or proceeding in relation to the guardianship of the person or custody or any access to any minor and it is conspicuously silent about the guardianship of the property of a minor. It can thus be said by reason of the above clause (g), a Family Court cannot exercise jurisdiction to appoint a guardian for the property of a minor. 5. In Susila Naik v. Judge, Family Court, Rourkela (AIR 1998 ORISSA 61)a Division Bench of the Orissa High Court (relied upon by appellant’s counsel) has also taken the above view that a Family Court has no jurisdiction to appoint a guardian or manager in respect of minor’s property. It is not necessary to go into the same in further detail as the law is clear from the above Clause (g) in the Explanation as laid down by the Orissa High Court in its above decision with which we are in respectful agreement. 6. It may however be noted that as to what should happen to the Family Court’s decree passed earlier in this case at the instance of the appellant and whether it can be ignored treating it as void abinitio are all questions which have to be decided in more detail. It is brought to our notice that even by the date of the present OP, which was originally filed in the year 2007, both the minors were aged 14 and 11 years respectively and the appellant being a close relative filed the said OP for getting the service benefits of the late father of the minors from his employer and that he has to take up the matter as the mother of the minors also subsequently died. 7. The appellant’s counsel did not file copies of the pleadings and judgment of the Family Court passed in the aforesaid OP disposed of by it. No third party may also be interested in challenging the decree of the Family Court on the ground of want of jurisdiction. 7. The appellant’s counsel did not file copies of the pleadings and judgment of the Family Court passed in the aforesaid OP disposed of by it. No third party may also be interested in challenging the decree of the Family Court on the ground of want of jurisdiction. Further in any event the decree granted by the Family Court can also be held to be valid insofar as it relates to appointment of the appellant as the guardian of minors i.e. for their person, though not for their property, in view of the above legal position. This aspect can be better considered by the District Court and we are of the opinion that it has got full liberty under law to restrict the Family Court’s decree to the person of the minors and pass appropriate orders in the present OP after considering the legal position as we do not have the necessary material before us to dispose of the OP on merits as the District Court dismissed it only on the question of maintainability alone. 8. In the above circumstances, without going into the above questions in detail and having regard to the ages of the minors and their plight, we are of the opinion that the order under appeal should be set aside and the present OP should be remanded to the District Court for fresh disposal having regard to the above legal position. It shall be open for the District Court to pass appropriate orders on the merits of the matter after following the procedure prescribed for disposal of Guardian OP. 9. This Civil Miscellaneous Appeal is accordingly allowed and the matter is remanded in the above terms. No costs.