Sarbati vs Krishna Devi And Others on 10 September, 2009

C.R. No. 5932 of 2006                                                   [1]




          IN THE HIGH COURT OF PUNJAB AND HARYANA AT

                                CHANDIGARH.

                                 C.R. No. 5932 of 2006

                                 Date of Decision: September 10, 2009



Sarbati

                                      .....Petitioner

             Vs.

Krishna Devi and others

                                      .....Respondents


CORAM:       HON'BLE MR. JUSTICE M.M.S. BEDI.

                          -.-

Present:-    Mr. R.A. Sheoran, Advocate
             for the petitioner.

             Mr.M.R. Verma, Advocate
             for respondents No.1 to 6.

             Mr.R.N. Lohan, Advocate
             for respondents No.7 to 9.

                   -.-


M.M.S. BEDI, J. (ORAL)

C.R. No. 5932 of 2006 [2]

Legality of the order dated October 17, 2006 has been

challenged by petitioner- Sarbati (defendant No.3) in a civil suit Krishna

Devi Vs. Ashish Kumar and others, appointing Phoolwati, the grand-mother

of Ashish Kumar and Pooja, (defendants No.1 and 2) as Court Guardian of

the minor defendants.

A perusal of the plaint indicates that Krishna Devi and her five

sisters have filed a suit for declaration that they are owners to the extent of

3/4th share in the property in dispute after the death of their father Dariya

Singh. Kuldeep Singh, brother of the plaintiffs had pre-deceased Dariya

Singh. In the suit, a Will date November 4, 2004 executed by Dariya Singh

in favour of his grand-son Ashish and Sarbati (daughter-in-law), defendant

No.3 has also been challenged. Ashish Kumar and Pooja, the minor

children of Sarbati, defendant No.3 have been impleaded through their

natural guardian by giving their address as resident of Surya Nagar, Hissar,

whereas the address of the mother has been given as resident of Village

Budhwar, Tehsil and District Hissar.

Counsel for the petitioner has submitted that she being the

natural guardian ought to have been appointed as Court Guardian as her

interests do not clash with the interests of the minor. It is also claimed that

the suit has been got filed by her mother-in-law-Phoolwati, with whom the

minor children are residing and her six daughters, to jeopardize the rights of

the petitioner as well as her minor son as her husband has already died.

On the other hand, counsel for the respondent-Phoolwati, the

mother-in-law/ defendant No.4 has contended that the welfare of the minor
C.R. No. 5932 of 2006 [3]

children is being watched by her and that Sarbati, the mother of Ashish had

intentionally not appeared before the Court despite service. She had though

put in appearance in the Court in her individual capacity but did not

represent the minors as such the petitioner is not concerned about the

welfare of the minor children.

I have heard counsel for the parties and considered all the

relevant documents attached with the petition and I am of the opinion that

from the order passed by High Court in Crl. W.P. No. 79 of 2006, decided

on February 29,2008, it is apparent that the minor children are staying with

their grand-mother and an attempt had been made by the mother to take the

custody of the children by filing a habeas corpus petition. The said petition

has been dismissed by observing that in peculiar set of circumstances

existing in the case, it would be against the interests of the children to

remove them from the environment where they were safely enconseed.

Copy of the order of the High Court has been placed on the record as

annexure R-3. Since the petitioner is the mother of the children claims that

interests of the minors will not be watched by the grand-mother as suit has

been got filed by her and her daughters. On the other hand, the case of the

mother-in-law is that the mother will not look after the welfare of the minor

children in the capacity of natural guardian. Court has rightly appointed the

grand-mother as Court Guardian. The provisions of Order 33 Rule 3 CPC

require that where the defendant is a minor, the Court on being satisfied of

the fact of the minority, shall appoint a proper person to be guardian for the

suit for such minor. No doubt, the plaintiffs in the present case had
C.R. No. 5932 of 2006 [4]

impleaded minors through the natural mother but they were very well aware

that the minor children were staying with grand-mother. No explanation is

forth-coming as to why the address of the minors is different from the

address of the natural guardian Sarbati or from the address of Phoolwati, the

grand-mother.

In view of the above circumstances, the impugned order dated

October 17, 2006, deserves to be set aside. Ordered accordingly. The trial

Court is directed to exercise the discretion to appoint proper person to be

the guardian of the minors under Order 33 Rule 3 CPC by taking into

consideration all the relevant circumstances and by giving opportunity to

the petitioner as well as the respondents. Parties are directed to appear

before the trial Court on October 24, 2009. In case the Court is satisfied

that the interests of the minors can be watched by any other appropriate

person, it will be open to the Court to appoint an independent Court

Guardian.

September 10, 2009                                 (M.M.S.BEDI)
 sanjay                                              JUDGE