RESHMA DUBAIN Vs. RAM DAWAN TEWARI

JUDGEMENT

(1.) This is an appeal by a plaintiff who sought a declaration in the Court below to the effect that she was a certain relation of a certain minor and that the minor was not married. It appears that the plaintiff made an application before the District Judge of Gorakhpur to obtain an appointment of herself as the guardian of the minor aforesaid. The District Judge appointed another person and dismissed her application. It is said that the learned Judge said something in the judgment which amounted to a direction to the applicant that she should obtain a declaration as to her relationship from the civil Court and also as to whether the minor is married or not. A copy of this order which, is in the vernacular, is on the record and has been perused by us. The question, however, remains whether a suit like this is maintainable in the civil Court. The only provision of law under which a declaratory suit as to status may be brought is Section 42, Specific Belief Act. It provides that any person entitled to any legal character or to any right as to any property may institute a suit....

(2.) The declaration which the appellant wants is not as to any "legal character," nor is it as to "any right to any property." If the declaration asked for be granted, it would not necessarily follow that the appellant would be appointed a guardian of the minor. Being a grandmother does not in itself carry with it a right to be the guardian of a grandchild. There are so many other things to be considered by the District Judge before a mere relation may be appointed a guardian. The appellant is neither a father nor a mother of the minor. The declaration would be in the nature of a brutum fulmen and no Court would sit solemnly to make such a declaration in the exercise of its judicial discretion. No party can claim a declaration as a matter of right.

(3.) The appellant's proper remedy was to have appealed against the order of the learned District Judge. It is a pity that she did not take that course and it is a pity that she was not advised properly in the matter. We cannot allow the appeal to be admitted because the suit is bound to fail on the ground mentioned above. We dismiss this appeal under Order 41, Rule 11 Civil P.C.