BENI PRASAD Vs. MTPARWATI

JUDGEMENT

(1.) The order in this case (First Appeal from Order No. 140 of 1932) will also govern and dispose of Civil Revision No. 543 of 1932. Beni Prasad is the uncle of one Mt. Shanti who is a minor. Mt. Parbati, the own sister of the minor is the wife of one Yagudatta. The minor, who lives with them, owns some movable property which is in the hands of Mt, Parbati and her husband who both reside at Hathras which is within the jurisdiction of the District Judge of Aligarh. Beni Prasad made an application to the District Judge of Agra fwhere he himself resides praying that he should be appointed to act as guardian of the person and property of minor. The learned District Judge of Agra found that at the time the application was made by Beni Prasad the minor was residing at Hathras and her property was in possession of her sister and sister's husband at that place. He therefore held that the Court having jurisdiction was the District Judge of Aligarh and returned the application to Beni Prasad for presentation to the Court having jurisdiction. Beni Prasad thereupon presented the application to the learned District Judge of Aligarh who relying on Clause (h), Section 39, Guardians and Wards Act, and a ruling of this Court reported in Asghar All V/s. Amina Begam AIR 1914 All 541 held that Beni Prasad who did not reside within his jurisdiction was not competent to make the application which was consequently dismissed by him. Beni Prasad has filed a revision application against the order of the learned District Judge of Agra and has preferred an appeal against the order of the learned District Judge of Aligarh

(2.) We have heard the learned Counsel on both sides In my opinion the order of the learned District Judge of Agra is correct and is not open to objection. S 9, Guardians and Wards Act, provides that if the application is with respect to the guardianship of the person of the minor then it should be made to the Court having jurisdiction in the place where the minor ordinarily resides and if the application is in respect of the property of the minor then it should be made either to the Court in whose jurisdiction the minor ordinarily resides or to the Court having jurisdiction in the place where the property is. Now, in the case before us the minor resides within the jurisdiction of the Aligarh Court and her property is also in the same district Under Clause 3, S 9, Guardians and Wards Act, the learned District Judge was justified in returning the application to Beni Prasad for presentation to the Aligarh Court So, the revision application of Beni Prasad against the order of the learned District Judge of Agra must be dismissed.

(3.) The next question for consideration is whether the view taken by the learned District Judge of Aligarh is a correct one. Admittedly, Beni Prasad applicant does not reside within the jurisdiction of Aligarh Court in which the minor resides at present and where her property is. The view taken by the learned District Judge is that the person applying to be appointed guardian must reside within the jurisdiction of the Court to which he makes the application. I find myself unable to agree with this view. In my opinion, there is nothing in the Guardians and Wards Act which debars a Court from appointing a guardian who is not residing within the jurisdiction of the Court to which an application is made. Under Section 7, Guardians and Wards Act, a Court will appoint a guardian wherever it is satisfied that it is for the welfare of the minor that an order should be made. Under Section 8 of the Act, any friend or relative can apply to be appointed as a guardian. It is nowhere laid down that a person not residing within the jurisdiction of the Court to which the application is made will be incompetent to make the same. The District Judge relics on Clause (h), Section 39 of the Act. The section mentions some of the grounds on which the Court may remove a guardian and Clause (h) says that one of the grounds for removal may be that the guardian had ceased to live within the jurisdiction of the Court which had appointed him a guardian. I do not think that Clause (h) implies that a person applying for appointment must be residing within the jurisdiction of the Court to which the application is made. What Clause (h) means is that in certain cases ceasing to live within the jurisdiction of the Court which made the order of appointment may be a ground for the removal of the guardian from his office and no more. The learned District Judge in his order re-lies on the ruling reported in Asghar Ali V/s. Amina Begam AIR 1914 All 541. I have read this case. At one place in their judgment the learned Judges make the following observations: We might refer to Clause (h), Section 39, of the same Act, which shows that the legislature contemplates that an applicant for guardianship should reside within the jurisdiction of the Court to which he makes the application.