: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. 134 OF 2007 IN SUIT (LODG) NO. 1871 OF 2007 In the matter of the Guardian and Wards Act, VIII of 1980 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) 1871 of 2007 wherein Raghavji R. Chheda is the plaintiff and the Board of Trustees of the Port of Bombay and Ors are the Defendants. Mr.Raghavji Ratansi Chheda ....Petitioner. ====== Ms.Mili V. Thakkar i/by. Rajan V. Thakkar, Adv. for the plaintiffs/petitioner. Mr.V.P.Sawant i/by. M/s. Rochi and Rochi Adv. for Respondent no.2. CORAM: S.C.DHARMADHIKARI, J. DATED: 4TH APRIL, 2008. :2: :2: :2: P.C. P.C. P.C. : : : 1. The petitioner claims to be the grandfather of the Minors and is desirous of preferring a Suit in this Court against the Bombay Port Trust and the persons who are more particularly mentioned in para-1 of the petition. 2. The Suit that he has filed is for a Declaration that he is the Tenant of the suit premiss i.e. Plot no.9 and 11 which is more particularly mentioned in para-2 of this petition and which is belonging to the MBPT. The Declaration is on the basis that after the death of the petitioners’ son he is the only surviving tenant. The deceased had joined him as a Joint Tenant and had satisfied all the conditions imposed by MBPT, to the exclusion of defendant nos.2 to 6. 3. The claim is on the basis that the deceased son died intestate on 19.5.2005 and the Minors are aged 9 and 12 years. Presently, they are in the custody of their Mother, Preeti Manish Chheda. The petition proceeds on the basis that the mother is in exclusive :3: :3: :3: possession of the Assets of the deceased. It is stated that the Mother of the Minors and daughter-in-law of the present petitioners is schizophrenic patient and she was administered treatment. She was under treatment during the life time of the deceased as well. Certain disputes between the petitioner and the deceased on one hand, so also, the daughter-in-law on the other hand are referred to including a Suit filed in the City Civil Court being Suit No. 5270 of 2006 which has been filed by the daughter-in-law against the petitioner and her sister-in-law, are also referred to, which is pending. 4. In para-7 of the petition, it is stated that the daughter-in-law had started intermedling with the Estate, so also, defeating the legal right of the other heirs and representatives. She had also started acting contrary to the interests of the Minors and those allegations are to be found in para-11 and 12 of the petition. 5. Based upon the above averments and allegations, the request is made to appoint some fit :4: :4: :4: and proper person or the Court Receiver or any Officer of this court or any of the Defendants other than the Defendant no.2-daughter-in-law as guardian Ad-litem for Defendant nos.3 and 4 who are the Minors and who can be represented in the suit. 6. An Affidavit-in-reply has been filed by the daughter-in-law, copies of which have been handed over to the petitioner. She has alleged that the present proceedings are instituted with a view to harass her and force her to give up her rights in the property of her husband. She has stated that the suit has been filed by her in the City Civil Court to protect her interest, so also, that of the Minors. It is stated that the present petition is nothing but an attempt to remove her as a Guardian of the Minors. She has stated that she is the natural guardian, being their mother. She has stated that very strong reasons and circumstances have to be set out and demonstrated if the petitioner desires that the Minors must be represented by somebody else other than their mother. It has to be disclosed as to how the Minors interests are not being protected or are adversely and :5: :5: :5: prejudicially affected by the acts of their natural guardian. Further, she has denied all contentions with regard to her physical and mental condition. She has levelled serious allegations against her in-laws and denied the allegations made against her of closing of any accounts. 7. When this petition was placed before me on the last occasion detailed arguments were canvassed in support of the petition by Ms.Thakkar. She has invited my attention to the allegations in the present petition and the Annexures to the petition including a copy of the plaint in the City Civil suit. She has contended that the relief in the petition be granted as there is a serious apprehension that the Minors would not be properly represented by the Natural Guardian and their interests would not be sufficiently protected. 8. Mr.Sawant appears on behalf of the daughter-in-law, on Notice. He has invited my attention to the Affidavit-in-reply and has contended that in the light of the statements made therein, it is clear that this is nothing but an attempt on the part :6: :6: :6: of the in-laws to harass their daughter-in-law after the death of their own son. It is the petitioner, who is acting contrary to the interest of the Minors. In his submission, the petition be dismissed. 9. Exhibit-C to the petition sets out various proceedings which are pending between the parties. Upon a query from me as to what is the relief claimed in this petition, Ms.Thakkar states that the relief claimed is to appoint somebody else, who this court thinks fit and proper to represent the Minors in the pending proceedings as Guardian ad-litem to take care of their share in the Estate of the Deceased Father. Upon a further query from me as to whether such a Relief would in effect mean, removal of Natural Guardian, or not, Ms.Thakkar states that the petition is not seeking her removal. However, on account of pending proceedings the parties which involve the Minors’ Mother and in the light of the averments in the petition, when an inconsistent and contrary stand has been taken by the Mother, then, this court should exercise its jurisdiction under the Guardian and Wards Act and pass necessary orders. :7: :7: :7: 10. This is a petition in effect to remove the Natural Guardian but without necessary materials to support the said prayer. Guardian and Wards Act, 1890 is an Act which has been enacted for the purposes of consolidating and amending the law relating to Guardian and Wards. The "Guardian" is defined to be a person having the care of a person of Minor or a property or of both, person and property and the Wards means a Minor for whose person or property both, there is a Guardian. Chapter II of the Act contains Section 7 which confers power of the court to make provision for Guardianship. A combined reading of the sub-sections of Section 7 would indicate that the court can appoint a Guardian of a Minor or of his property or both or declare a person to be such a Guardian and this power would imply the removal of any Guardian who has not been appointed by Will or other instrument or appointed or declared by the Court. While Section 8 entitles persons desirous of being or claiming to be Guardian of the Minors or any relative or Friend of the Minor for such relief i.e. the one available under Section 7, ultimately, powers are conferred on the court to remove :8: :8: :8: a Guardian if the court is satisfied that the welfare and interest of the Minors is not safe in the hands of such a Guardian. Section 39 of the Act which is dealing with removal of Guardian confers power on the court to remove a Guardian appointed or declared by a Court or a Guardian by Will or other instrument for any of the following causes, one of them being ill-treatment, neglect to take proper care of the Ward. This is after the duties, rights and liabilities of the Guardian are provided for in Chapter-III. It has been repeatedly held that the welfare of the Minor is of paramount consideration for appointment of the Guardian. 11. In the present case, merely because the petitioners do not approve of the conduct of their daughter-in-law who is the Mother of the Minors and in their opinion she is acting contrary to the interest of the Minors, her removal cannot be directed. More so, when each of those allegations are denied by the Mother. The Mother of the Minors has instituted proceedings against her in-laws and those are pending. It is essentially agitated by them that the present :9: :9: :9: petition has been moved. Under the garb of protecting the interest of the Minors, the removal of their Natural Guardian is sought, but, without necessary averments being made and the above ingredients being satisfied. There is nothing in the petition and the Affidavit-in-rejoinder which would enable the petitioner to seek a relief to displace the natural guardian, the mother of the Minors. She has specifically denied their allegations. She has also set out as to how she is looking after the Minors and there is no substance in the allegation against her. She has asserted her right as the daughter-in-law in the property of her husband and that appears to be the reason for the petitioner moving this court. There are allegations and counter allegations. It is in such circumstances, that, I am of the opinion that no case is made out for granting the relief prayed for in the petition or for removal of the Mother of the Minors as their Guardian. Petition is dismissed. No costs. However, it is clarified that the above observations shall not preclude the petitioner from proving all the allegations against his daughter-in-law in pending Suit and proceedings. The observations should be seen as :10: :10: :10: restricted to the relief sought in this petition. Thus, they are without prejudice to the rights and contentions of both sides. Equally, the dismissal of this petition does not mean that the petitioner is prevented from applying for similar relief in future. sd/- ***********