ASGHAR ALI Vs. AMINA BEGAM

JUDGEMENT

(1.) THE two Appeals Nos. 159 and 215 of 1913 are connected and have arisen out of the following circumstances : One Abdul Ghafoor died some time ago leaving six daughters namely, Anwari, Hasina, Akbari, Asghari, Masiha and Amina. Hasina died after her marriage, leaving two children, Azizur-Rahman and Musammat Habiba Fatima. Musammat Anwari and the two children of Hasina are minors. On the 14th March of 1913 Asghar Ali applied to the District Judge of Moradabad to be appointed guardian of the person and property of the said three minors. No one objected to the application of Asghar Ali with regard to the minors, Azizur-Rahman and Musammat Habiba Fatima. But as regards the application relating to Musammat Anwari Begam, her two married sisters, Akbari Begam and Asghari Begam, filed objections and stated that Musammat Anwari was living then and had, all along since the death of their mother, lived with Musammat Akbari Begam. It was further "stated in their enjection that the personal wishes of the minor Musammat Anwari Begam were that she should be allowed to remain with her sister Musammat Akbari Begam. We may note that Musammat Anwari s date of birth as given in the application of Asghar Ali is June 1898, so that she is now almost 16 years of age. On the 23rd June 1913 Hamid Ali Khan, the husband of Musammat Akbari Begam, also applied to be made a guardian of the person and property of Musammat Anwari. Both the applications were dismissed by the District Judge and both the applicants have come up to this Court in appeal. THE appeal of Hamid Ali Khan must fail on the ground that he is not entitled to be appointed a guardian of his sister-in-law, either of her person or property, under the Muhammadan Law. THE appeal of Asghar Ali must also fail, but on other grounds. He admittedly lives in the District of Meerut and according to him Musammat Anwari Begam also ordinarily resides with him in that district. If so, the application with respect to the guardianship of the person of the minor should have been made to the District Judge of Meerut and that with respect to the guardianship of the property of the minor either to the District Judge of Meerut or Moradabad. But having regard to the provisions of Section 9 of Act VIII of 1890, the District Judge of Moradabad might very well have refused to entertain that application. We might also refer to Clause (h) of 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. We, therefore, think that the application of Asghar Ali should not have been made to the District Judge of Moradabad. We dismiss his appeal. But the dismissal of his appeal or the rejection of the application by the District Judge of Moradabad will not stand in his way, if he chooses to make a proper application according to law in a Court which has jurisdiction to entertain it. As the objection as to the want of jurisdiction was not taken by the objectors in the Court below, we think that the costs in the application of Asghar Ali should be borne by the parties.

(2.) IN the case of Hamid Ali Khan we make no order as to the, costs.