Manoj Giri vs District Judge and Another

B.S. Verma, J.—Heard Mr. Parikshit Saini, Advocate for the Petitioner, Mr. P.C. Bisht, Brief Holder appearing for Respondent No. 1 and Mr. N.S. Negi, Advocate for Respondent No. 2.

By means of this petition the Petitioner has sought a direction for quashing the impugned order dated 23-07-2005 passed by the District Judge, Dehradun, in Misc. Case No. 148 of 2005, whereby the application u/s 29 Guardians and Wards Act moved by Smt. Sunita Giri, mother of minor Ashotosh Giri, was allowed and she was appointed guardian of the person and property of minor Ashotosh Giri and was permitted to sell the property.

Brief facts of the case giving rise to the present petition are that Vijay Giri, grand father of minor Ashotosh Giri was owner of the property in dispute, who bequeathed the property to Ashotosh Giri by virtue of Will dated 11-9-1998. Mother of Ashotosh Giri is living separately along with her children and is getting maintenance from her husband for herself and for her children.

By moving application u/s 29 Guardians and Wards Act, the applicant Smt. Sunita Giri sought permission of Court to sell the property in suit for bringing up and education of the children.

According to the Petitioner no notice was issued to him and the application was heard exparte by the District Judge. It is further contended that in view of Section 19(b) of Guardians and Wards Act, no court shall appoint or declare a guardian of a minor whose father is living and is not in the opinion of the court, unfit to be a guardian of the person of the minor.

Learned Counsel for the Respondent Sri N.S. Negi has submitted that the notices were issued to the Respondent/Petitioner but despite service he has not filed any objection against the application.

After having heard learned Counsel for parties and perusing the impugned order I am of the view that the District Judge has committed a manifest error by not giving a specific finding that the father is unfit to be appointed a guardian. Without giving finding on this point, mother cannot be appointed a guardian to look after the paramount interest of the minor. Therefore, the order impugned is liable to be set-aside on this ground alone.

The writ petition is allowed. The impugned order dated 23-7-2005, is set aside. However, the District Judge, Dehradun is directed to re-hear the parties and decide the application of the Respondent in accordance with law, expeditiously, as far as possible.

Parties shall appear before the Court below on 01.04.2011.