Sain Dass vs Hari Parkash @ Hari Krishan

V.K. Bali, J.—Sain Dass and Chanan Devi appellants herein who were petitioners in an application filed by them under Section 7 of the Guardian and Wards Act, 1890, have filed this appeal as their petition for obtaining custody of the then minor Sarita Devi was dismissed by the Guardian Judge vide orders dated Ist of September, 1987. The appeal was dismissed on 30.11.1987.

On filing of two misc. applications, one by the mother of the erstwhile minor and other by the minor who states that she has become major on consent the main appeal was also fixed for arguments. Mr. Sarin while pressing Civil Misc. No. 2765CII of 1996 contends that erstwhile minor has now become a major and the present appeal has become infructuous and therefore, there is absolutely no necessity to go into the merits of the case. Mr. Bahl, the learned Counsel representing the appellant vehemently opposes the prayer of Mr. Sarin. That being so, an opinion has to be expressed by this Court as to whether the erstwhile minor has become major and if so the present appeal has become infructuous or not.

It is not disputed that the father of minor died on 14.8.1976 and this is also not disputed that minor namely Sarita Devi is a posthumous child. However, whereas the case of the minor is that she was born on 22.9.1976 and to support this assertion a Matriculation Certificate has also been placed on record, the appellants do not admit it to be a correct date of birth. There is no necessity at all to determine the exact date of birth of the minor as the child being posthumous could only be born after the death of her father. As mentioned above, Vijay Kumar father of the deceased died on 14.8.1976 and therefore, at the most it can be presumed that the child was born in May end or beginning of June 1997. In any case, the child is now more than 18 years of age. Whereas the case of the minor Sarita Devi is that on attaining the age of 18 years she has become major, Mr. Bahl contends that to attain majority Sarita Devi has to be of 21 years of age. After hearing the learned counsel for the parties at considerable length, the Court is of the view that on attaining the age of 18 years, Sarita Devi has become major and therefore, this appeal deserves to be dismissed, having become infructuous.

As mentioned above, an application giving rise to this appeal was filed under Section 7 of the Guardians and Wards Act, 1890. Section 3 of the aforesaid Act reads thus :

``3. Saving of jurisdiction of Courts of Wards and Chartered High Courts. This Act shall be read subject to every enactment heretofore or hereafter passed relating to any Court of Wards by any competent Legislature, authority or person in any State to which this Act extends and nothing in this Act shall be constructed to effect or in any way derogate from the jurisdiction or authority of any Court of Wards, or to take away any power possessed by any High Court.''''

Section 4(1) defines `minor'' to mean a person who, under the provisions of the Indian Majority Act, 1875, is to be deemed not to have attained his majority. Section 3 of the Indian Majority Act, 1875, reads thus :

``3. Age of majority of persons domiciled in India. Subject as aforesaid, every minor of whose person or property, or both, a guardian other than a guardian for a suit within the meaning of Chapter XXXI of the Code of Civil Procedure, has been or shall be appointed or declared by any Court of Justice before the minor has attained the age of eighteen years, and every minor of whose property the superintendence has been or shall be assumed by any Court of Wards before the minor has attained that age shall, notwithstanding anything contained in the Indian Succession Act or in any other enactment, be deemed to have attained his majority when he shall have completed his age of twentyone years and not before.

Subject as aforesaid, every other person domiciled in India shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before.''''

At this stage it shall be useful to refer to the relevant provisions of the Hindu Minority & Guardianship Act, 1956. A `minor'' has been defined in Section 4(a) of the Act and means a person who has not completed the age of eighteen years. Section 5 which is with regard to overriding effect of other Acts reads thus :

``5. Overriding effect of Act. Save as otherwise expressly provided in this Act

(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.

In so far as thus the Hindu Minority & Guardianship Act, 1956 is concerned, minority comes to an end at the age of eighteen years.

Mr. Bahl, learned counsel for the appellants, however, contends that till such time a person continues to be minor, as per provisions contained in the Guardians and Wards Act, 1890, it is the age mentioned in the said Act which is relevant to determine as to whether a person has attained majority or not.

He also contends that powers of a natural and testamentary guardian cease on the minor attaining the age of 18 years but the guardian of a minor appointed or declared by any Court of Justice or the superintendence of the property has been or shall be assumed by any Court of Wards, the minor shall be deemed to have attained his majority when he shall have completed 21 yeas of age and not before. Section 3 of the Indian Majority Act has been reproduced above. In view of this Court, this section is in two parts; one is with regard to one for whose person or property or both a Guardian has been appointed or shall be appointed before the age of 18 years and the other is one of whose person or property or both a guardian has not been appointed before the age of 18 years. The proviso to section makes it further clear that every other person i.e. the person who is not covered under the main section i.e. Section 3, shall remain minor only upto the age of 18 years. In the present case, no guardian admittedly for the person or property of the minor has been appointed. True, if the appeal of the appellants is allowed, the guardian shall be appointed before the minor attains the age of 21 years but this Court is of the clear view that the moment a minor attains the age of 18 years, no guardian for her can possibly be appointed. This Court in Surjit Singh and others v. Nazir Singh, 1970 P.L.R. 87 held that ``Hindu Minority and Guardianship Act, 1956 does not deal with the appointment of a Court Guardian and for that purpose one has to seek the help of the provisions of Guardians and Wards Act, 1890 and for the definition of minor as given in the Majority Act wherein it is provided that a minor for whose property and person a guardian has been appointed by the Court before his attaining the age of 18 years, shall be deemed to have attained majority on his completion of 21 years and not before.''''

That being the position of law, this Court is of the view that erstwhile minor namely Sarita Devi has become major and therefore, this appeal has become infructuous. Mr. Bahl, however, contends that the appeal is a continuation of original lis and simply because the minor has attained majority the appeal does not become infructuous. For his aforesaid contentions the Counsel relies upon a judgment of the Supreme Court in Pasupuleti Venkateshwarlu v. The Motor and General Traders, 1975 RCR(Rent) 486 (SC) : 1975 C.L.J. 305. The Court finds no merit in the contention of the learned Counsel. Even though it may be correct that the appeal is in continuation of the original lis but when in the original lis the relief asked for cannot possibly be granted, then the appeal even though a continuation of original lis has to be dismissed as having become infructuous. As mentioned above, the only prayer of the appellants was to appoint them as Guardian of the erstwhile minor. As has been held by this Court such a prayer could be allowed till such time the minor had not attained the age of 18 years. The moment the minor attains the age of 18 years, no Court under any provision of the Act can possibly appoint a Guardian for the minor. The ratio of the decision of the Supreme Court in Pasupuleti Venkateswarlu''s case (supra) is wholly inapplicable to the facts of the case. This appeal is, thus, dismissed having become infructuous.

During the currency of the appeal this Court on various occasions passed following three orders:

``The minor owns 70 Kanals of land, which came to her on the death of her father by inheritance. The mother of the minor remarried and has two children from the remarriage and the minor continued to live with the mother. The parental grandparents of the minor started proceedings for custody of the minor, that is by filing a petition of guardianship of the minor both regarding person and her property, which failed before the Guardian Judge and this is their appeal.

The parental grandparents have applied for issue of adinterim injunction to restrain the mother of the minor from alienating her property as she has obtained permission from the Guardian Judge to sell the land of the minor on the conditions prescribed by order dated 26th November, 1984. In reply the mother''s counsel urges that the father of the minor died on 14th August, 1976 and the land falling to the share of the minor is being cultivated by the parental grandfather and he is not giving a penny out of the produce of the land of the minor and, therefore, in equity first the parental grandfather should be directed to place before the Court the share of the produce falling to the minor and only then their prayer for issue of adinterim injunction should be considered.

After considering the arguments, I find merit in the point raised by Shri Sarin appearing for the mother of the minor. Accordingly, I direct the appellants, particularly appellant No. 1, to place at the disposal of this Court the income of the land in regard to 70 Kanals which the minor owns. Let us see as to how the calculations are made by the grandparents about the share of the minor to vouchsafe their fairness in the custody of the minor.

At this state Shri Bahl states that the Court may tentatively assess the amount. In view of this I direct the appellants to place before this Court an amount of Rs. One Lac, as arrears along with interest which is due from 14th August, 1976. Shri Bahl says that this amount is excess. If it is so, let proper calculations be made by the appellants and deposit of that amount along with 12 per cent per annum interest thereon be made. They are given two months'' time to do the needful as prayed for Shri Bahl. To come up on 15.3.1988 for tendering the amount in Court.

Sd/

Gokal Chand Mittal

Judge''''

January 12, 1988.

``Shri Bahl has tendered Rs. 20,000/ in Court as the income from the land of the minor for the period commencing from Rabi 1976 to Rabi 1988. For paying the interest on the aforesaid amount at the rate of 12% per annum, he seeks one month''s time. I think one month''s time is much too much for calculating and paying the interest on Rs. 20,000/. Let the interest be tendered in Court or before 2.6.1988 when the case will be taken up for passing further orders in the matter.

The amount of Rs. 20,000/ tendered in Court today, be deposited in the State Bank of Patiala, High Court Branch, Chandigarh, in the name of the minor daughter, in Special F.D.R. for a period of three years, which should be renewed for similar periods from time to time, till further orders. The amount of Rs. 20,000/ has been handed over to the Manager. State Bank of Patiala, High Court Branch, Chandigarh, for preparing the F.D.R. The F.D.R. be kept in the safe custody of the Additional Registrar of this Court.

A copy of this order be sent to the Manager, State Bank of Patiala, High Court Branch, Chandigarh, for compliance.

Sd/

Gokal Chand Mittal

Judge''''

May 19, 1988.

``Shri Bahl has tendered Rs. 16,800/ towards interest as per order dated 12.1.1988 and 19th May, 1988 respectively. Let this amount be deposited in a special FDR for a period of three years in the State Bank of Patiala, High Court branch, Chandigarh, to be renewed from time to time till the disposal of the appeal. The amount be deposited in the name of the minor, in whose name it was already deposited, and the FDR be kept in the safe custody of the Additional Registrar of this Court. The amount has been handed over to Shri A.K. Sarin, Assistant Manager of the branch for preparing the FDR.

The copy of the order be sent to the Manager, State Bank of Patiala for compliance of this order.

The stay will continue till the decision of the appeal subject to the condition that the mesne profits for the land in dispute for the year 198889 will be deposited by the appellant in the FDR in the State Bank of Patiala, in the name of the minor by 30th June, 1989, and so the deposit will be made every year in the same manner till the decision of the appeal. The value of the annual mesne profits would not be less than Rs. 4000/ subject to the determination of the same by some competent Court in appropriate proceedings.

Miss Bahri states that the amount of Rs. 20,000/ deposited earlier towards the mesne profits was insufficient. This matter cannot be decided at this stage and should be got decided by the minor in some appropriate proceedings in accordance with law.

Sd/

Gokal Chand Mittal

Judge

July 15, 1988.''''

In the second Civil Misc. 2765CII of 1996 the prayer is for getting the amount that came to the deposited by virtue of the interim orders reproduced above. The amount that has been deposited by virtue of interim orders referred to above shall be paid to Sarita Devi, i.e. minor who has become major. It is clear from the orders that the money stands deposited in the State Bank of Patiala, High Court Branch, Chandigarh. On appropriate application made by Sarita Devi, Manager of the Branch would release the amount to her.

The appeal and the C.M. applications are disposed of in the manner indicated above.