KAMLA Vs. BHANU MAL

JUDGEMENT

(1.) This is a reference under Section 14 of the Guardians and Wards Act. The facts of the case are that there was one Krishna Kumar Who died leaving his widow Srimati Kamla and her four children. Krishna Kumar's father is Bhanumal. After the death of Krishna Kumar it appears that Smt. Kamla with her three children went to Tehri where her father was residing. But as the children had to be educated she shifted to Roorkee and is residing with her maternal uncle, who is a professor in the Roorkee University. Krishna Kumar had died in a motor accident in 1952 when a roadways bus, in which he was sitting, on account of the rash and negligent driving, collided with some trees. A sum of Rs. 10,000/-was sanctioned by the State Government as compensation and this appears to be the bone of contention between the grandfather and the mother of the children regarding the appointment of the guardian. Bhanumal made an application before the Civil Judge of Gonda for appointment of the guardian of the minor children, but this application could not be disposed of because the post of Civil Judge was vacant and there was nobody appointed at Gonda. Smt. Kamla filed another application for guardianship before the District Judge Saharanpur. The two simultaneous applications were pending for appointment of the guardian of the same minors and therefore a reference has been made to tills Court both by the District Judge, Saharanpur as also by the Civil Judge Gonda for a direction of this Court as to where the proceedings should proceed.

(2.) Learned counsel for Bhanumal has very strenuously argued that the proceedings should continue at Gonda and his arguments are firstly that the present residence of the minors was at Gonda and, therefore according to Section 9 of the Guardians and Wards Act it should be the place where the proceedings should continue. Secondly his contention is that the presence of Smt. Kamla is not at all necessary at Gonda except possibly on one day, and the proceedings can go on without any difficulty at Gonda. Thirdly his contention is that Bhanumal will have to engage counsel both at Gonda as well as at Saharanpur, because some of the witnesses may have to be examined at Gonda, and lastly it was contended, that the application was filed at Gonda, and therefore preference should be given to the court of Gonda.

(3.) The first question that has to be considered is whether Section 9 of the Guardians and Wards Act in any way restricts the wide powers given to the High Court to decide where the guardianship proceedings should continue. Secondly, if it is so, which was the place where the minors ordinarily resided in this case, and a further point arises, that in case there are other minors, some of them living at one place, while the other at another place, how can effect be given to Section 9, while exercising the discretion under Section 14. It may be possible for the learned counsel for Bhanumal to rely on the case -- 'Lakshman Moreshet v. Ganga Ram Narayan', AIR 1932 Bom (592 (A), where it was held that the considerations of convenience are relevant only when the minor ordinarily resides in two districts, but in case a minor resides only in one district that court will have jurisdiction. In my view, that may be one of the relevant considerations, but it cannot be the sole deciding question. The power given under Section 14 is very wide in its nature. While exercising the powers under Section 14, the residence of the minors is not the only or sole consideration which the High Court is bound to take in deciding the forum where the proceedings are to continue, and I respectfully disagree with the observations in AIR 1932 Bom 592 (A). I am supported in my view by Sapru L, in -- 'Ram Sarup v. Chimman Lal', AIR 1952 All 79 (B).