MULUKH RAJ SHARMA Vs. DHANABANTA DEBI

JUDGEMENT

(1.) On the 12th March 1954, opposite party No. 1 Dhanabanta Debi applied before the District Judge, Howrah, for being appointed guardian of the person and property of her minor sons Syamser Sarma, Biswanath Sarma, Srinath Sarma and Sewbachan Sarma. In her said application, the opposite party No. 1 alleged inter alia that the said minors were her sons by her deceased husband Pandit Shanta Ram sarma and wore living with her under her care and in her custody, that they were owners in possession of holding No. 02 Sanatan Mistry Lane, Salkia, and that their debts amounted to Rs. 3,200/-. The application, however, did not contain any very specific relevant statement as to why it was necessary to appoint a guardian of the property of the minors. This defect appears to have been cured by subsequent applications, from which it appears that the minors' only source of maintenance was the income from the tenants of the said property and there was difficulty in the matter of realisation of rents from those tenants. The only near relative, mentioned in the guardianship application, was the minor's mother, the applicant herself.

(2.) After issue of general citation, objections were filed by one Rajnarayan Sarma for self and as guardian of his minor brother Shyamdeo Sarma but these were later withdrawn. Then the present petitioner, claiming to be a brother ,of the minor's deceased father Pandit Shanta Rani Sarma, filed a petition, objecting mainly to the applicant's appointment as guardian of the property of the minors concerned upon the ground that the property, mentioned for that purpose, namely, Holding No. 62 Sanatan Mistry Lane, was not the minor's separate property either in whole or in part or in any definable share and that the same was the joint family property of a Mitakshara coparcenary, of which the objector was one of the members. Upon this objection, a question arose whether the objector had any locus standi in the guardianship proceedings. The learned District Judge answered that question in the negative and against the objector by his Order No. 32, dated 7-4-55, and, having thus put him out of court, he allowed the mother applicant's prayer for being appointed guardian of the person and property of the minors and appointed her such guardian on her furnishing security to the extent of Rs. 300/-. This was done by the subsequent Order No. 33, dated 7-4-55/11-4-55. Against these two orders (Nos. 32 & 33) the present Rule was obtained by the objector petitioner.

(3.) It is clear that the real point for consideration is whether the learned District Judge's order, holding that the objector petitioner has no locus standi in the guardianship proceedings and putting him out of court on that ground, can be supported. If that order is a good order, it would serve no useful purpose to set aside the subsequent order, appointing the applicant mother as guardian of the person and property of the minors which, though somewhat irregularly made, as we shall show hereinafter, is substantially correct on the merits in the facts and circumstances of the present case. If, on the other hand, the petitioner was wrongly put out of court without an enquiry into his allegation whether the disputed property or any part or share thereof was the property, -- the separate property,--of the minors concerned or whether it was Mita-kshara coparcenary property as claimed by the objector, the subsequent order of appointment of guardian of property would be undoubtedly bad and it would require to be set aside and the matter considered afresh in accordance with law. We, therefore, proceed to enquire whether the earlier order of the learned District Judge, namely, Order No. 32, dated 7-4-55, can be supported.