Sunil Gulabrao Satav vs Balu Karbhari Kutal
2011 Latest Caselaw 18 Bom

                                              1




                                                                                   
               IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                           
                               BENCH AT AURANGABAD


                         FIRST APPEAL NO.2009 OF 2011




                                                          
    Sunil Gulabrao Satav,
    Age-35 years, Occu-Service and
    Agriculture, R/o.Arangaon Dumala,
    Tal.Shrigonda, Dist.Ahmednagar                                        APPELLANT




                                            
                 VERSUS
                          
    1. Balu Karbhari Kutal,
                         
        Age-55 years, Occu-Agriculture,
        R/o.Arangaon Dumala, 
        Tal.Shrigonda, Dist.Ahmednagar,
      

    2. Sanket Sunil Satav,
        (Through respondent no.1)

R/o.As above. RESPONDENTS

Mr.V.D.Sapkal, learned counsel for the appellant. Mr.V.D.Hon, learned counsel for respondents no.1 and 2.

(CORAM : A.V.POTDAR, J.)

DATE : 08/11/2011

ORAL JUDGMENT :

1. Challenge in this first appeal is to the order passed by the

Principal District Judge, Ahmednagar in Misc.C.A.No.66/2010 by

judgment and order dated 02/07/2011, by which the application filed

by the first respondent for the custody of minor child by name Sanket

Sunil Satav, the son of the appellant u/s. 7 and 17 of The Guardian

and Wards Act of 1956 was allowed.

2. Admit. By consent, heard finally at this stage.

3. Few facts, which gave rise to file the present appeal can be

summarized as follows :

Respondent no.1 herein, who is the grand father of minor

Sanket Sunil Satav, the son of the present appellant, has applied

u/s. 7 and 17 of The Guardians and Wards Act of 1956 to appoint

him as a guardian of the minor. It is alleged in the said application

that daughter of respondent no.1 by name Rekha was married with

the appellant herein. Minor Sanket and daughter Shweta were

borne out of the said wedlock. There are allegations of harassment

at the hands of appellant. It is alleged that due to harassment

caused at the hands of present appellant, said Rekha has committed

suicide on 13/11/2009. Accordingly, complaint came to be lodged in

Shrigonda Police Station against the present appellant, his parents

and wife of younger brother of the appellant for an offence punishable

u/s. 306, 498, 323, 504, 506 r/w. 34 of The IPC. It is further

alleged that even though the appellant is the father of minor Sanket,

appellant has never discharged his responsibility towards minor

Sanket. According to respondent no.1, the appellant had not taken

proper care of welfare of the minor. It is also alleged that the first

respondent is retired from the defence services and is getting monthly

pension in the sum of Rs.4,000/- He is having sufficient bank

balance and having agricultural land at his native place. The

respondent no.1 claims that he has one more son and one more

daughter who are well educated and his family is well educated

family. In the light of this, for the welfare of the minor, the

respondent no.1 prayed that he may be appointed as the guardian of

the minor Sanket and accordingly certificate be issued.

4.

In the say cum written statement filed by the appellant, he has

denied all the allegations lavelled against him. According to him, he

is having sufficient agricultural land and is able to take care of his

minor son. With an intention to grab the property of the minor, false

application is moved by the respondent no.1 before the District Court

to appoint him as the guardian of the minor.

5. Considering the pleadings of the parties, it appears that the

learned Principal District Judge, Ahmednagar has framed the point

for consideration -

"whether applicant is entitled to be appointed as

guardian? If yes, whether his appointment shall be

beneficial in the interest of minor."

The parties were directed to lead evidence and thereafter considering

it, the application was allowed by the learned Principal District

Judge, by its order dated 02/07/2011, which is impugned in this

application.

6. During the course of submissions across the bar, learned

counsel appearing for the appellant has drawn attention of this Court

towards Chapter II of The Guardians and Wards Act, 1890, which

deals with appointment and declaration of guardians. In the said

chapter, my attention is drawn towards section 19 sub clause 'B' of

the Act of 1890, which reads as :

Guardian not to be appointed by the Court in

certain cases - Nothing in this Chapter shall authorise

the Court to appoint or declare a guardian of the

property of a minor whose property is under the

superintendence of a Court of Wards, or to appoint or

declare a guardian of the person

**** (a) - ......,

(b) of a minor whose father is living and is not, in the

opinion of the Court, unfit to be guardian of the person

of the minor, or

(c) .........

7. Further, he has drawn attention of this Court towards section 2

of The Hindu Minority and Guardianship Act, 1956, which reads as :

The provisions of this Act shall be in addition to, and

not, save as hereinafter expressly provided, in derogation

of, the Guardian and Wards Act, 1890 (8 of 1890) .

In the light of Section 2 of The Act of 1956, learned counsel for the

appellant would urge that the provisions of the Act of 1956 are

supplementary to the Act of 1890 and not in derogation. In the light

of this legal position, learned counsel for appellant would urge that

while deciding the application moved by the respondent no.1, u/s. 7

and 17 of The Act of 1956, the learned Trial Court ought to have

frame the issue in the light of provisions u/s. 19 Sub Clause B of

1890, where the appellant, as the father of the minor, whether is

competent to act as a guardian of the minor or not and then an

opportunity to be given to the parties to lead the evidence to that

effect and then to decide the application in accordance with law.

Attention of the Court is drawn towards the judgment and order

impugned passed by the learned Principal District Judge,

Ahmednagar in Misc.Civil Application No.67/2010 and it is urged

that the requisite issue about the competency of the father, the

natural guardian of the minor, the appellant herein, was not framed

by the Court below, which amounts to an illegality. On this ground

alone, the order passed by the Court below is required to be quashed

and set aside and it is prayed that the matter be remitted back to the

Court below, to frame the issue accordingly and after giving an

opportunity to both the sides to lead the evidence in the light of the

issue framed, to decide the application in accordance with Law.

8. While opposing these submissions, learned counsel appearing

for the first respondent would urge that considering the observations

of the Court below, particularly in para no.9, it is observed by the

Court that the appellant is not competent to act as a guardian of the

minor and in view of this, there is no necessity to remit the matter

back to decide afresh in accordance with Law in the light of Section

19(b) of The Act of 1890.

9. Considering the submissions advanced by both the sides, it

can not be disputed that the appellant herein is the father of minor

Sanket Satav and prior to the sad demise of the mother of minor

Sanket by name Rekha, the wife of the appellant, the minor was

residing with the appellant, his father. Custody of the minor Sanket

was obtained by respondent no.1 after the demise of his daughter/

the wife of appellant and the mother of minor Sanket. This Court do

not intend to dilute on the issue whether the appellant is competent

to be appointed as aguardian of minor Sanket or not as this fact

required to be considered in the light of the evidence to be lead by the

parties before the Court below, but the fact remains that as there is

embargo on the appointment of guardian by virtue of the provisions

u/s. 19(b) of The Act of 1890 and Act of 1956 is supplemental to the

Act of 1890, it is the duty of the Court to frame proper issue, while

deciding the application of the appointment of the guardianship.

Admittedly, the learned Lower Court has not framed the issue to that

effect to decide the competency of the natural guardian/ the father of

the minor and in absence of such specific issue, parties have not lead

evidence in support of the issue framed by the Court below.

10. Considering this legal aspect, the appeal ought to be allowed.

The order impugned passed by the Principal District Judge,

Ahmednagar in Misc.Civil Application No.67/2010 dated 02/07/2011

is hereby quashed and set aside. The matter is remitted back to the

Lower Court with the directions to frame issue in accordance with

the provisions of section 19(b) of The Act of 1890 and then to give an

opportunity to the appellant and the first respondent to lead evidence

in support of the issue to be framed u/s. 19(b) of The Act of 1890 and

then to decide the application in accordance with Law. The parties

to appear before the Lower Court on 22/11/2011. Thereafter, the

learned Lower Court to frame the issue as directed in this judgment

and then to decide the application in accordance with Law within the

period of 3 months thereafter. Appeal is allowed accordingly. No

order as to costs.

11. In view of the fact that the appeal is itself decided at the stage

of admission, civil application no.9947/2011 does not survive, hence

dismissed.

(A.V.POTDAR, J.)

khs/NOV.2011/fa2009-11