N.T. RAJU Vs. N. JYOTSNA

JUDGEMENT

(1.) THE petition under Secs. 7 and 25 read with Sec. 3 of the Guardians and Wards Act No. 8 of 1890 ('Act' for short) was filed in this court alleging that this court exercises ordinary original civil jurisdiction under Secs. 3 and 4(A) read with clause 17 of the Letters Patent. The respondent, white not disputing in the counter that the petition could be filed in this court, pleaded however that the minor is residing at Vijayawada in her protection and the petition has been filed in this court in order to harass her and compel her to part with the custody of the minor in favour of the petitioner and that the interests of Justice require that the petition should be transferred to the District Court, Krishna, which is the court having jurisdiction to try the proceeding and that such a transfer, if made, would be more convenient to her as well as to the minor. When the matter came up initially before our learned brother Raghuvir, J., the petitioner relied upon Sangeetha Raghuram Vs. R. Pushpa Raghuram, 1984 (II) APLJ 131 to submit that the High Court has concurrent jurisdiction to entertain the proceeding and inquire into the same. It would appear to have, however, been argued before our learned brother that the High Court cannot transfer the proceeding to the District Court acting even under Sec. 24 CPC. Raghuvir, J., was unable to agree with some of the observations made in Sangeetha's case (supra). The learned Judge was not also inclined to agree that the High Court has no power to transfer under sec. 24 CPC but, non -the less, felt it proper that the matter should receive consideration by a Division Bench. The matter has accordingly come before us on such reference. The submissions made before us have covered a wider range and they revolve round the following questions; (1) Whether the High Court comes within the definition of 'District Court' exercising ordinary original civil jurisdiction; (2) Whether the High Court exercises any, and if so what jurisdiction under clause 17 of the Letters Patent; (3) When there is jurisdiction for the High Court under the Letters Patent and for the District Court under the Act, whether the petitioner can as of right claim the matter to be entertained and disposed of only by the High Court in the absence of any special reasons for not initiating the proceeding in the District Court in whose jurisdiction the minor resides; (4) Whether, having regard to the facts, the petition ought to be filed under sec. 9 of the Act in the District Court in whose jurisdiction the minor resides; and (5) Whether, in any event, the High Court has no power to act under Sec. 24 CPC and transfer the proceeding pending before it to the District Court in whose jurisdiction the minor resides.

(2.) THE material facts can be set out The petitioners was by 1976, the Deputy Zonal Manager, LIC of India at Madras. He had one son by name Vijayakumar Raju and a daughter Indira, the latter of whom had settled in the United States, having taken up American citizenship. Vijayakumar Raju was married to the respondent in March, 1975, while he was a student of Engineering. The said Vijayakumar Raju, however, died on 20th August, 1976, by which date the respondent was pregnant. The minor Kalpana was born posthumously on 2 -12 -1976. On account of the sudden death of his son, the petitioner took voluntarily retirement in September. 1976, and settled at Hyderabad where he has since started practice as a Consulting Actuary and Registered Valuer under Wealth Tax, Income Tax and Gift Tax etc., By the date the petition was filed, the minor aged about 7 years, was living at Vijayawada in the protection of the respondent who has taken some employment at that place. The relief sought for by the petitioner is to appoint him as the guardian of the minor and direct the respondent to deliver the custody of the minor to him. The following provisions of the Act become material. Sec. 9 of the Act provides for the court having jurisdiction to entertain the application.

(3.) SEC . 4(4) defines "District Court" as having the meaning assigned to that expression in the Code of Civil Procedure and includes a High Court in the exercise of its ordinary original civil jurisdiction. Sec. 4(5) of the Act defines" the Court" as meaning: