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2017 DIGILAW 661 (ALL)

JITENDRA SHUKLA v. SWAMI NATH DWIVEDI

2017-03-01

PANKAJ MITHAL, SHASHI KANT

body2017
JUDGMENT By the Court.—Heard Sri A.K.Trivedi, learned counsel for the plaintiff-appellant and Sri K.D.Mishra, Advocate, holding brief of Sri Ramanuj Tripathi, learned counsel appearing for all the respondents. 2. The plaintiff-appellant is the father of the minor Master Aditya, respondent No. 3. The respondent Nos. 1 and 2 are the maternal grand father and grand mother (Nana-Nani) of respondent No. 3. 3. The plaintiff-appellant i.e. the father of the minor applied for guardianship of his minor son under the provisions of Guardians and Wards Act, 1890 (hereinafter referred to as “the Act”) at Kanpur Nagar. 4. The application has been rejected by the impugned order dated 30.3.2010, on the ground that the Court has no jurisdiction and that Lucknow Court alone has jurisdiction in the matter as the minor, at the relevant time, was ordinarily residing at Lucknow. 5. The submission of Sri Trivedi, learned counsel for the plaintiff-appellant is that he was married on 16.2.2005 to Smt. Anita and after the marriage, both of them had started residing at Lucknow. However, the wife had left the matrimonial house at Lucknow on 18.2.2006 and had started living with her parents at Kanpur alongwith her minor son. Therefore, the minor, at the relevant time, was ordinarily residing at Kanpur and not at Lucknow. 6. Section 9 of the Act determines the jurisdiction of the Court for the purposes of applying for the guardianship of a minor. It reads as under : “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.” 7. Section 9 of the Act does not use the phrase “ordinarily residing” rather uses the phrase “ordinarily resides”. The expression “ordinarily resides” and “ordinarily residing” are not synonymous and are not interchangeable but contemplates two different situations. 8. The two phrases have a distinct meaning. The expression “ordinarily residing” is of present continuous tense and denotes the actual place of living whereas the expression “ordinarily resides” refers to the place where a person is expected or supposed to be living. A place of living under compulsion howsoever long it may be cannot be treated as a place where the person ordinarily resides. 9. A place of permanent abode of a person or where he actually resides or is supposed to reside is the place of his ordinary residence. It normally follows that the children of such a person would be deemed to ordinarily reside at the same place. 10. The expression “where minor ordinarily resides” used in Section 9 of the Act come up for consideration before the Supreme Court in the case of Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479 . The Court held the place of ordinary residence of a person depends much on the intention of the person whether he wants to make the place as his ordinary abode. 11. In Jagdish Chandra Gupta v. Dr. Kumari Vimla Gupta, AIR 2003 All 317 , a Division Bench of this Court observed that the place where the minor ordinarily resides means a place where he is expected to reside but for the special circumstances and it excludes the places to which he may be removed at or about the time of the presentation of application for appointment of guardian. The test is to find out the place where the minor was ordinarily residing and where his residence would have continued but for his removal to a different place. The place where the minor generally resides and would be expected to reside would be one where he ordinarily resides. 12. In the present case, the perusal of the pleadings exchanged between the parties establish that the wife of the plaintiff-appellant, after leaving the matrimonial house at Lucknow, had shifted to Kanpur in the year 2006 but as per paragraph 6 of the plaint allegations, it appears that she restarted residing in House No. D-1/319, Sector-F, Jankipuram, Lucknow where she died on the night of 8/9.2.2008. At that time, the minor was residing with her. This clearly means that the minor, at the time of the death of her mother, was ordinarily residing at Lucknow. He was shifted to Kanpur under the unprecedented circumstances of the death of her mother. Therefore, it happened to be the temporary shifting of the minor from Lucknow to Kanpur. It will not make him “ordinarily residing” at Kanpur. 13. The mother of the minor was residing at Lucknow with him before her death and Lucknow was her place of abode. There is no material to show that she never intended to live or settle at Lucknow. Therefore, the place of her abode would also be the place of residence of the minor. 14. Therefore, in view of the fact that the minor was residing with her mother at Lucknow, he would be deemed to be ‘ordinarily residing’ at Lucknow and not at Kanpur. 15. In view of the above, as Lucknow was the place where the minor was ordinarily resident at the time of the death of her mother, the Court below has not committed any error in holding that the application at Kanpur is not maintainable and it should be filed in the competent Court at Lucknow. 16. We, therefore, do not find any merit in this appeal so as to interfere with the impugned order. 17. The appeal is dismissed.