Bachcha Shankar Mishra vs Shri Krishna Pandey and Another

Sanjay Yadav, J.—Challenge put-forth in this petition under Article 227 of Constitution of India is to an order dated 18.10.2010 passed by the Family Court in case No. 2/2010, which is an application u/s 39 of the Guardians and Wards Act, 1890 (for short the Act of 1890); whereby, the Petitioner has sought the relief to remove Respondent Nos. 1 and 2 as guardian of baby Gauri.

During the pendency of said case Petitioner herein filed an application seeking amendment and proposed to amend the cause-title, pleadings as well as the prayer clause. The Trial Court after considering the application and the reply filed by Respondents herein, rejected the application on the ground that the same would lead to change the nature of application u/s 39 of the Act of 1890. Aggrieved whereof, the Petitioner has filed this petition on the ground that the trial court was not justified in dismissing the application for amendment.

In the proposed amendment the Petitioner intended to delete the cause-title by converting it into a petition u/s 7 of the Act of 1890. Furthermore, the Petitioner proposed to add new paragraph after existing paragraph 15; whereby, he intended to challenge the order dated 30.3.2009 passed by Family Court in Guardians and Wards Act Case No. 3/2009.

The Petitioner further intended to delete the entire prayer clause and substitute the same with the following:

It is, therefore, prayed that the order dated 30/3/2009, passed by the Learned Second Additional Judge of the Family Court, Jabalpur, passed in Guardian & Wards Act, Case No. 3/09 be set aside with cost on the ground that same was passed without jurisdiction and is a nullity for all purposes. For deciding this question, summary enquiry for recording the evidence of the parties may be allowed.

The application wherein proposed amendment is being sought is u/s 39 of the Act of 1890 filed by the Petitioner with a specific relief that Respondent Nos. 1 and 2 be removed as guardian of baby Gouri Pandey. They were appointed as guardian by order dated 30.3.2009 passed by II Additional Judge of the Family Court, Jabalpur in Guardians and Wards Case No. 3/2009.

As evident from the pleadings and documents on record Respondent Nos. 1 and 2 were appointed as guardian of Ku. Gouri Pandey. They are the paternal grand parent of the ward Ku. Gouri Pandey. The Petitioner herein is the maternal grand father of Ku. Gouri Pandey.

The question is whether the Petitioner can be allowed to convert a proceeding initiated u/s 39 into a proceedings u/s 7 of the Guardians and Wards Act, 1890 and whether the order passed by the trial court suffers from any jurisdictional error.

The controversy can be appreciated on the anvil of the scope of Section 7 and Section 39 of the Act of 1890.

Section 7 provides for:

Power of the Court to make orders as to guardianship.-

(1) Where the Court is satisfied that it is for the'' welfare of a minor that an order should be made-

(a) Appointing a guardian of his person or property or both, or

(b) declaring a person to be such a guardian the Court may make an order accordingly.

(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.

(3) Where a guardian has been appointed by will or other instrument or appointed or declare by the Court, an order under this section appointing or declaring another person to be guardian in his stand shall not be made until the powers of the guardian appointed or declare as aforesaid have ceased under the provision of this Act

Section 39 stipulates:

Removal of guardian.- The court may, on the application of any person interested, or of its own motion, remove a guardian appointed or declared by the Court, or a guardian appointed by will or other instrument, for any of the following causes, namely:

(a) for abuse of his trust;

(b) for continued failure to perform the duties of his trust;

(c) for incapacity to perform the duties of his trust;

(d) for ill-treatment, or neglect to take proper care, of his ward;

(e) for contumacious disregard of any provision of this Act or of any order of the Court;

(f) for conviction of an offence implying, in the opinion of the Court, a defect of character which unfits him to be the guardian of his ward;

(g) for having an interest adverse to the faithful performance of his duties

(h) for ceasing to reside within the local limits of the jurisdiction of the Court

(i) in the case of a guardian of the property, for bankruptcy or insolvency;

(j) by reason of the guardianship of the guardian ceasing, or being liable to cease, under the law to which the minor is subject.

Provided that a guardian appoint by will or other instrument, whether he has been declared under this Act, or not, shall not be removed-

(a) for the cause mentioned in Clause (g) unless the adverse interest accrued after the death of the person who appointed him, or it is shown that person made and maintained the appointment In ignorance of the existence of the adverse interest, or

(b) for the cause mentioned in Clause (h) unless such guardian has taken up such a residence as, in the opinion of the Court, renders it impracticable for him to discharge the functions of guardian.

Section 7 thus empowers the Court on being satisfied that it is for the welfare of a minor, to (a) appoint a guardian of his person or property or both, or (b) declaring a person to be such a guardian. The consequence of such an order has been spelt out in Sub-section (2) of Section 7 that it shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.

Placing emphasis on Sub-section (2) of Section 7 it is the contention of learned Counsel for the Petitioner that even when an application is filed u/s 39, first proviso thereunder empowers the applicant to seek a relief as is available u/s 7. The submission though at first blush sounds attractive but when probed on the anvil of provisions as contained under Sections 7 and 39 and the respective field in which they operate, the attractive submissions fall apart.

Section 7, as apparent, empowers the Court to appoint a guardian and when such order is passed, the same would lead to removal of any guardian who is not appointed by a will or other instrument or declared by the Court. The expression "appointed" or "declared" which appear under Sub-section (2) of Section 7 reflects the nature of order passed by the Court under Sub-section (1) of Section 7 which could be either under Clause (a) or (b) or Sub-section (1) of Section 7 as the case may be.

To elaborate further when there is a ''declaration'' the same recognizes a pre-existing right of such a person as a guardian, whereas in case of ''appointment'' there is no such pre-existing right and the same is on the basis of an application. The field of operation of Section 39, in our considered opinion is totally different than that of Section 7. It enumerates the grounds on the basis whereof a guardian appointed or declared by the Court, or a guardian appointed by will or other instrument is to be removed. The proviso to Section 39 carves out an exception to the main clause to the extent that a guardian who is appointed by will or other instrument whether he has been declared under the Act or not shall not be removed:

(a) for the cause mentioned in Clause (g) unless the adverse interest accrued after the death of the person who appointed him, or it is shown that person made and maintained the appointment In ignorance of the existence of the adverse interest,

Or

(b) for the cause mentioned in Clause (h) unless such guardian has taken up such a residence as, in the opinion of the Court, renders it impracticable for him to discharge the functions of guardian.

Thus, in a case as present one, removal of guardian as sought u/s 39, it will not be open for such person to seek a conversion of the same into that of an application u/s 7. As the Court has already exercised its power u/s 7 by appointing Respondent No. 1 and 2 as guardian of Ku. Gouri Pandey. Because if the same is allowed, it will tantamount to review the order passed u/s 7 of the Act of 1890; whereas, the scheme of Act of 1890 does not support such a course of action.

Therefore, in our considered opinion trial court was well justified in its approach in rejecting the application for amendment on the ground that the same would change the nature of the case.