:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION GUARDIANSHIP PETITION NO. 35 OF 2008 IN SUIT (LODG.) NO.3016 OF 2007 In the matter of the Guardian and WArds Act, VIII of 1890 AND In the matter of minors (1) Sahil Manish Chheda aged 12 years, unmarried and (2) Riya Manish Chheda aged 9 years, unmarried AND In the matter of Suit No.(Lodg) No.3016 of 2007 wherein Bharat Nagjibahi Gangar is the petitioner and Priti Manish Chheda and Others are the Defendants. Mr.Bharat Nagjibahi Gangar ....Petitioner Ms.Mili V.Thakkar i/by.R.V.Thakkar, Adv. for the petitioners. Mr.V.P.Sawant i/by. M/s. Rochi and Rochi Adv. for the Respondents. CORAM: S.C.DHARMADHIKARI, J. DATED: 4TH APRIL, 2008. P.C. P.C. P.C. : : : 1. This is a petition by a Creditor who has filed a Suit against the Family members including the minors :2: :2: :2: for recovery of sums more specifically set out in para-2. In para-5 of the petition, the petitioner claims to be a Creditor and has referred to the very facts which are subject matter of Guardianship Petition No. 134 of 2007 and Guardianship Petition No. 34 of 2008. He has adopted the very same allegations as is clear from the reading of para-5 of the petition. Prima-facie, there is substance in the contention of Mr. Sawant, that the same ground is incorporated by the petitioner to seek the same relief of removal of the Natural Guardian of the Minors. 2. In such circumstances and when the allegations are self-same, this petition must also fail for the very same reasons that are assigned while dismissing the other petitions. Therefore, for the reasons assigned while dismissing Guardianship Petition No. 134 of 2007, this petition must also fail and is accordingly dismissed. 3. Ms.Thakkar would urge that dismissal of Petition N0. 35 of 2008 would mean that Ms.Priti Manish Chheda, Mother of the Minors would not be able :3: :3: :3: to represent them. If prayer clause (a) of the said petition is perused, it is clear that what the petitioner is agitated is not by the fact that the mother being the Natural Guardian can represent the Minors but that this court should record an Undertaking from her that she will not act contrary to the interest of the Minors. In para-5 of the petition it is urged by the petitioners, that with a view to protect the share of the Minors and also to protect the right of the Minors and to represent them in the suit filed by the petitioner, either, Defendant no.1 being mother of the Minors subject to the Undertaking, that she does not have any interest adverse to that of Minors can be appointed as Guardian/ad-litem or this Court should appoint a fit and proper person or the Court Receiver as Guardian/Ad-litem. 4. It is clear that the petition proceeds on the basis that the mother is acting contrary to the interest of the Minors and her interest is adverse to that of the Minors. This was the basis on which the Father-in-law of Ms.Priti Manish Chheda had filed Guardianship Petition No. 134 of 2007. Having found :4: :4: :4: that the father-in-law could not substantiate any of the grounds in that petition and prove the allegations even, prima-facie, that the mother is acting contrary to the interest of the Minors, there is no question of any Undertaking being recorded from the Mother of the Minors as sought by the petitioner. Rejection of this petition therefore does not amount to her removal as their Guardian. She continues as a Guardian of the Minors without she being required to give an Undertaking to this Court. The Undertaking is sought on the basis that her interests are contrary to that of the Minors, which fact even this petitioner could not substantiate. Hence, petition dismissed. No costs. sd/- **********