IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.309 of 2009 DURGA DEVI Versus SUSHILA DEVI & ANR ----------- Advocate for the appellant: Dr. Manoj Kumar, Advocate Advocate for Respondent Nos.1 and 2 Mr. Krishna Mohan Upadhayay,Adv Mr. Diwaker,Adv. -------------- 5. 25.02.2010 Heard the parties. In the facts and circumstances of the case, prayer to condone limitation of about two years in preferring this appeal is allowed. The delay is condoned. Heard the parties on merits. It is not in dispute that respondent No.1 Sushila Devi filed a petition for being appointed as guardian of a minor boy Babul Kumar Sah who is said to be born on 22.11.1992. She described that the boy is the son of her own brother Manoj Kumar Sah, son of late Karo Sah and claimed for guardianship on the ground that the said Manoj Kumar Sah died in motor vehicle accident on 9.6.2002 leaving behind only the aforesaid minor son. It is her case that mother of Babul Kumar Sah i.e. wife of late Manoj Kumar Sah had pre-deceased her husband on 5.2.2002 and another brother of Manoj Kumar Sah namely, Bishun Sah, uncle of Babul Kumar Sah had died on 21.2.2003 and thus the minor boy does not have any relations or grand parents maternal or paternal. After a general notice, the court below has allowed claim of Sushila Devi accepting that minor boy Babul Kumar Sah does not have any other relations except Sushila Devi, his - 2 - father’s sister. The appellant has claimed that she is the second wife of Manoj Kumar Sah whom he married after the death of his first wife Munni Devi and the minor boy is actually a son of late Bishun Sah but only for the purpose of creating a claim over the property of Manoj Kumar Sah, a collusive claim was alleged through Sushila Devi by describing the minor as a son of late Manoj Kuamr Sah. On these allegations and on the ground that appellant had no notice of the Guardianship Case No.07 of 2004/04 of 2005 in which the impugned order was passed on 25th April, 2007, the appellant wants this Court to interfere in the matter. Although she admits that she is not related to the minor boy and has not claimed to be his guardian. Even after noticing the case of the appellant, we are not persuaded to interfere with the final conclusion of the Family Court, Bhagalpur that the minor boy should be placed under the guardianship of Sushila Devi. If so advised, the appellant may file a petition before the court below or a separate suit to establish her claim that she is second wife of Manoj Kumar Sah and that the minor boy Babul Kumar Sah is not the son of Manoj Kuamr Sah but is actually a son of Bishun Sah. With this liberty the appeal is disposed of. (Shiva Kirti Singh, J.) (C.M. Prasad, J.) Ravi/-