Narinder Singh vs General Public

R.S. Narula, J.—The circumstances in which the Senior Subordinate Judge, Ambala, has made this reference under sub-section 2) of section 14 of the Guardian and Wards Act (8 of 1890) (hereinafter called the Act) are these : Major Gurdial Singh Sandhawalia son of S. Harbans Singh Sandhawali was married to Shrimati Amarjit Kaur daughter of Shri Narinder Singh. Major Gurdial Singh having died while in active service on October 14, 1962, during the Chinese aggression, his minor daughter Miss Sonia (who had been born on April 10, 1962) came to live with her mother Shrimati Amarjit Kaur.

It is not disputed that since after 1962. Shrimati Amarjit Kaur was living with her father Narinder Singh who was at that time posted as Extra Assistant Commissioner at Ambala. On October 23, 1965, Narinder Singh filed an application in the Guardianship Court at Ambala u/s 10 of the Act for his being appointed as guardian of the person and property of Miss Sonia. On May 13, 1966, Harbans Singh, the paternal grandfather of the minor made a similar application in the Guardianship Court at Jullundur. The application pending in one Court having been brought to the notice of other Court, the proceedings in both the Courts were stayed under sub section (1) of section 14 of the Act. It is in this situation that the Guardian Judge at Ambala has made the present reference for a decision of this Court as to which of the two Courts should proceed to decide the dispute between Narinder Singh and Harbans Singh relating to the guardianship of person and property of their minor granddaughter. The reference has been made without giving any decision as to the place where the minor was ordinarily resident. Though originally the minor had some interest in some property at Chandigarh, the said property has been sold out and the share of the minor therein is stated to have been received by her mother. The minor is entitled to receive an educational grant of about Rs. 360/ per annum from the Government of India. The only other property in which the minor is said to have any interest is the ancestral property of her deceased father which is situate in Jullundur district. This clearly shows that no part of the property of the minor is situate in Ambala district. At the same time it is clear from averments made in paragraph 4(a) of Narinder Singh''s application that the custody of the minor at the time of his making the application was with the minor''s mother who was at that time residing in 38, Model Town, Ambala City. In the corresponding paragraph of the written reply filed by Harbans Singh in the Ambala Court the correctness of the allegation made by Narinder Singh is admitted and it has been added that the mother of the minor was only staying with her father, i.e. with Narinder Singh "temporarily in Model Town, Ambala." It has not been shown any where on this record that the minor ever resided after the death of her father at any place other than Ambala. It is, however, the common case of both sides that during the pendency of these proceeding Narinder Singh who was staying at Ambala only on account of his appointment as Extra Assistant Commissioner there has been transferred during the last year to Patiala and that his daughter Amarjit Kaur along with her minor daughter Sonia is now living at Patiala, on account of the official residence of Narinder Singh being there. It is in this situation that I am called upon to decide as to which of the two Courts (Ambala or Jullundur) should adjudicate upon the dispute between two grandfathers as to the guardianship of the person and property of the minor.

Section 9 of the Act defines the Court which has jurisdiction to entertain applications under the Act in the following words:

(1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.

(2) If the application is with respect to the guardianship of the property of the minor it may it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property.

(3) If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction.

The only other provisions of the Act which is relevant for answering this reference is section 14 which is reproduced below:

(1) If proceedings for the appointment or declaration of a guardian of a minor, are taken in more Courts than one, each of those Courts shall, on being appraised of the proceedings in the other Court or Courts, stay the proceedings before itself.

(2) If the Courts are both or all subordinate to the same High Court, they shall report the case to the High Court, and the High Court shall determine in which of the Courts the proceedings with respect to the appointment or declaration of a guardian of the minor shall be had.

(3) In any other case in which proceedings are stayed under sub-section (1), the Courts shall report the case to, and be guided by such orders as they may receive "from, their respective State Governments.

From a reading of sub-section (2) of section 14, it appears that while giving a decision on a report made under that provision to the High Court, no order can be made for the cases in question being decided by any Court in which no proceedings were pending at the time of the reference. The jurisdiction of the High Court under sub-section (2) of section 14 of the Act is confined to selecting one of the two or more Courts in which proceedings under the Act were pending at the time of the reference or may indeed be pending till the decision of the reference by the High Court. That being so I have only to decide whether in the circumstances of the case the dispute between the parties should be decided by the Jullundur Court or the Ambala Court.

u/s 9 of the Act, an application in respect of guardianship of the person of a minor has to be made to the District Court having jurisdiction in the place where the minor ordinarily resides. On the facts of this case, the minor was ordinarily residing at Ambala at the time when the two rival applications were made. Under sub-section (2) of section 9, if the application is with respect to the guardianship of the property of the minor, it may be made either to the District Court in whose jurisdiction the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property. Out of Ambala and Jullundur the minor in the instant case can be said to have some property in Jullundur but admittedly none in Ambala. If Narinder Singh had not been transferred from Ambala, and the minor had continued to reside at Ambala, I would have been inclined to prefer the Ambala Court to the Jullundur Court. Mr. N.S. Grewal, the Learned Counsel for Narinder Singh, has referred to the judgment of the Lahore High Court in Uttam Singh v. Thakar Singh 157 I.C. 941, wherein it was held that where the minors actually reside at A, the application should be made in Court at A even though the father of the minors had ancestral lands at B. It was further held in that cease that when it was proved that the minor had resided with his mother at A for about one year and that there was no evidence of his residence elsewhere, application for guardianship could be entertained in the Court at A as the minor would be deemed to be ordinarily residing at that place. Counsel has also referred to the following other judgments:

Mst Firoza Begum v. Akhtaruddin Laskar AIR 1963 Ass 193.

Sarda Nayar v. Vakara Amma AIR 1957 Kar 158.

Lakshman Moreshet v Gangaram Narayan AIR 1932 Bomb. 592.

In the last mentioned case it was held that considerations of convenience are relevant only when the minor ordinarily resides in two districts and in case the minor resided only in one district, the Court in that district alone had the jurisdiction. In the face of the facts already stated above, it cannot be stated with any fairness that the previous residence of the minor at Ambala can be a relevant consideration for determining this dispute. The minor has admittedly not resided at Ambala for the last one year and there is no reason to believe that she would ever reside again at Ambala during the pendency of the guardianship dispute. She was at Ambala because her maternal grandfather was posted there. On the reorganisation of the erstwhile State of Punjab, Narinder Singh has been allocated to the State of Punjab. Ambala being in Haryana there is no likelihood of Narinder Singh being re-posted to that place. The consideration of the ordinary residence of the minor is, therefore, now irrelevant in so far as the contest lies between the Court at Jullundur on the one hand and Ambala on the other. Mr. Grewal has submitted that this Court has no jurisdiction to permit a petition u/s 10 of the Act with respect to the guardianship of person of the minor being tried by a Court within whose jurisdiction the minor does not ordinarily reside. In support of this proposition reliance has been placed by Learned Counsel on the following observations in the judgment of Ram Sarup Vs. Chimman Lal and Others,

I have some hesitation in this case, but my doubts are not sufficiently strong to induce men to disagree with the order proposed by my brother. I think Mr G. Kumar is right in contending that in determining in which Court guardianship proceedings should be had, this Court ought to be guided by a consideration of the question of jurisdiction; for I do not thing that it was the intention of the legislature as expressed in Section 14, Guardians and Wards Act, to confer upon the High Court power to vest a subordinate Court with a jurisdiction under that Act it would ordinarily not possess I have however a difficulty in accepting Mr. Kumar''s further contention that the minor childern must be held to be ordinarily resident in Chandausi. They are not in fact residing there; they have been taken away by their mother, and on such materials as are before us it seems to me that they were taken away with the intention that they should stay away. In these circumstances it appears to me that their ordinary residence in Chandausi thereupon came to an end and that they must be regarded, for the purposes of the Act as being ordinarily resident within the jurisdiction of the District Court of Moradabad.

Sapru, J. Who wrote the main judgment in Ram Samp''s case 5 (supra) did not, however subscribe to the view that a High Court has no jurisdiction to ignore the provisions of section 9 of the Act in coming to a decision under sub-section (2) of section 14. Mr. Mohinderjit Singh Sethi, the Learned Counsel for Harbans Singh, has relied upon the judgment of Bhargava J in Smt. Kamla v. Bhanu Mal AIR 956 All 328 to show that the Allahabad High Court itself did not follow the view expressed in the obiter dicta of Mottham J. in Ram Sarup''s case. It was held by Bhargava J. that while exercising the power u/s 14 of the Act, the residence of the minor is not the only or sole consideration which the High Court is bound to take in deciding the forum where the proceedings are to continue. The learned Judge held that section 9 of the Act does not restrict the wide powers of the High Court u/s 14(2). I am in respectful agreement with the view expressed by Bhargava J. in Smt. Kamla''s case (supra). The main consideration being the convenience and interest of the minor subject to the statutory restrictions already referred to, and the minor being no more in Ambala and no part of her property being in that district, there seems to be no reason whatever to prefer Ambala Court to Jullundur Court.

In these circumstances, I hold that proceedings with respect to the appointment or declaration of guardian of the person and property of Sonia minor shall be held in the Guardianship Court at Jullundur. The proceedings pending in the Ambala Court shall stand transferred to the Guardianship Court in Jullundur. In the circumstances of the case, there is no order as to costs of this reference.