SALUBAI GANESH HATWALNE Vs. KESHAVRAO VASUDEO KORTIKAR

JUDGEMENT

(1.) This is an appeal against an order of the District Judge selecting a bridegroom for a minor of whose person a guardian was appointed, and ordering the marriage to take place within four months from the date of the order.

(2.) The appeal is filed by the guardian of the person of the minor and a stay order has been obtained. It appears that one Ganesh Sakharam Supekar had two wives, one Mathurabai and the other Salubai, the appellant before us. The minors are the daughters of Ganesh from Mathurabai who predeceased her husband. The appellant is the step-mother of the two minors. After the death of Mathurabai, Ganesh adopted one Pandurang who brought a suit for partition and succeeded in getting a share decreed to him. After the partition decree was obtained by the adopted son, Ganesh died leaving a will dated August 19,1926, by which he bequeathed all his property to his minor daughters Sonubai and Vithabai. Damodar Harbaji, the brother of Salubai, the stepmother of the minors, was appointed by the District Judge on June 24, 1927, guardian of the property of the minors, and Salubai, the appellant, was appointed guardian of the person of the minors, On December 21, 1927, Damodar Harbaji, the maternal uncle, who was appointed guardian of the property of the minors, made an application to the Court to sanction the expenses of the marriage of the elder minor Sonubai, and put forward two eligible bridegrooms to whom the minor Sonubai should be married. One of the proposed bridegrooms, Bhagwant Shankar Kulkarni, aged 22, was described as a graduate of the Bombay University, and the other Harbaji Damodar Kulkarni aged twenty was stated to be the owner of a kulkarni watan of four villages with an annual income of Rs. 1000-1200 per year. The Sheristedar of the Court made a note on this application and suggested that the application of the guardian so far as it concerned the selection of the bridegroom should be sent to the Subordinate Judge, Pandharpur, for his report. It appears that in pursuance of the suggestion of the Sheristedar accepted by the learned District Judge the matter went before the Subordinate Judge who on January 16, 1928, recorded his opinion that the first boy Bhagwant Shankar Kulkarni was preferable as he was studying in the B. A. Class in the Fergusson College and his family owned an income of Rs. 1000, while the other bridegroom was studying in the local school and his income was Rs. 500-600, The learned District Judge, without examining the appellant Salubai, the guardian of the person of the minor Sonubai, or without consulting the wishes of the minor Sonubai who had attained the age of about sixteen years, apparently accepted the opinion of the Subordinate Judge and passed an order that he saw no good reason to reopen the question of selection of the bridegroom, sanctioned the marriage and further ordered that if the personal guardian put difficulties in the way by persuading the girl against the marriage she would be removed from the guardianship and another guardian would be appointed, and ordered the marriage to take place within four months. An application was made by Shankar Balaji Kulkarni, the father of the selected bridegroom, who agreed to bear all the expenses of the marriage on condition that he was paid Rs. 1,300 after the guardian of the minor obtained possession of the property. It appears that in the meanwhile Damodar Harbaji, the maternal uncle of the minor, was removed from his guardianship of the property and the Deputy Nazir was appointed guardian of the property. On the application of the father of the selected bridegroom the learned District Judge passed an order that he might spend the money for the marriage to be paid from the estate later. The appeal is filed against the order of the District Judge by the step-mother Salubai.

(3.) It is urged on behalf of the appellant that an appeal lies under Section 47, Clause (i), against an order directing the marriage of a minor ward and falling under Section 43 of the Guardians and Wards Act as being one regulating the conduct or proceeding of any guardian appointed or declared by the Court. This question was considered in Bai Diwali V/s. Moti Karson (1890) I.L.R. 22 Bom. 509, and it was doubted whether the order would fall under Section 43 read with Secs.24 to 26 having regard to Section 41 of the Guardians and Wards Act under which the powers of the guardian of the person would be terminated on the marriage of a minor female. In Laxminarayan Sheshgiri V/s. Parvatibai, s.c. 22 Bom. L.R. 399 it was held that under Section 43 the District Court could make an order regulating the conduct or proceeding of any guardian appointed or declared by the Court, but as no guardian was appointed in that case but the grandmother was allowed to retain custody of the minor under Section 12 of the Guardians and Wards Act, the order passed in connection with the marriage of the female minor was set aside as being without jurisdiction.