NARAINI DEVI Vs. BANARSI DEVI

JUDGEMENT

(1.) THIS Special Appeal has been filed against the judgment of the learned Single Judge dismissing the Civil Miscellaneous Appeal of the appellant filed in this Court.

(2.) THE facts of the case out of which this appeal arises are simple and may lie in a narrow compass.

(3.) WHILE making his observations, the learned Single Judge did not take into consideration the various provisions of the Act. Sec. 7 of the Act deals with the powers of the Court to make order as to guardianship and sub-section (3) of the said section makes it clear that when a guardian is appointed or declared by the Court, an order under sec. 7 appointing or declaring another person to be guardian in stead shall not be made until the powers of such a guardian have ceased under the provisions of the Act. In sec. 41 of the Act, it is provided as to when the powers of a guardian of the person or property or both of the minor cease. Under sub-sec. (2) of sec. 41, the powers of a guardian of the property of the minor only cease on his removal, discharge or death. Under sec. 42 of the Act, when a guardian appointed or declared by the Court is discharged or ceases to be entitled to act, the Court of its own motion or application under Chapter 11 (2) may, if the ward is still a minor, appoint or declare any guardian of his person or property or both, as the case may be. Section 39 of the Act deals with removal of guardian, and a guardian appointed or declared by the Court can only be removed for any of the causes (a) to (f) of this section. It will, therefore, be clear from a reading of these provisions that under section 7 of the Act a fresh guardian in place of the one appointed or declared by the Court cannot be appointed unless the guardian appointed or declared by the Court ceases to act under sec. 41 of the Act on the grounds of his removal or discharge and the other grounds with which we are not concerned. A perusal of the judgment of the learned Single Judge will make it clear that he has treated the case essentially as one of appointment of the respondent as a guardian of the person and property of minor Geeta. We will like to observe here that so far as the minor Kumari Bhagwati is concerned, there is no dispute before us, and the only dispute is with regard to Kumari Geeta. The learned Single Judge has nowhere given a finding that the removal of the appellant from the guardianship of the person or property or both of minor Geeta is necessary for any of the causes mentioned in sec. 39 of the Act. On the contrary, he has observed that the respondent is the mother of the minor, and there is no allegation or ground whatsoever to hold that the respondent is in any manner unfit to be a guardian of the minor, and further that, merely because the appellant was appointed as guardian on 22-9-1976, it cannot deprive the respondent to move an application for her appointment, which can only be done by removal of the appellant as guardian of Kumari Geeta, and sec. 39 cannot come in the way. We have already referred to the various provisions of the Act, and we are of the opinion that once a guardian of the person and property of the minor is appointed or declared by the Court, no other person in his place can be declared or appointed guardian unless the guardian once appointed is removed and thereby ceases to act. We have also observed that the same was the approach of the learned District Judge, and she also fell in error when, inspite of the fact, she had framed issue No. 1 about the abuse of the trust, she essentially treated the application as one for the appointment, and at the fag end said that the order of the appointment of the appellant as guardian is cancelled.