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