ao76.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPEAL FROM ORDER NO. 76 OF 2010 Ramprasad s/o Gulabrao Mutkule age 29 years, occ. agril r/o Nandapur, Tq. & Dist. Parbhani. .. APPELLANT VERSUS Sumanbai w/o Prasad Raut age 41 years, occ. household r/o Dudhgaon, Tq. Jintur Dist. Parbhani. .. RESPONDENT Mr. M.V. Ghatge, advocate for the appellant. Mr. P.N. Kalani, advocate for the respondent. ===== CORAM : R.M. BORDE, J. DATE : 9 th MARCH, 2011. ORAL JUDGMENT : 1 Appellant is raising exception to the order passed by District Judge -3, Parbhani, in CMA(RJE) no. 31/2009, dated 12-3-2010. The learned District Judge while deciding the misc. application, quashed the order dated 24-10-2008 in respect of appointment of appellant as guardian of insane person by name Shivaji s/o Ganeshrao Mutkule. ao76.10 2 2 Appellant herein is the son of Gulabrao, brother of deceased Ganeshrao. Deceased Ganeshrao had three children namely Sumanbai / respondent herein, Shivaji, who is admittedly insane and, Jayashree who is minor. Appellant is appointed as guardian in respect of person and property of insane person Shivaji. Appellant is also appointed as guardian of Jayashree, minor daughter of Ganeshrao. It is stated that Jayashree is born out of the wedlock of deceased Ganeshrao with his second wife. 3 Appellant herein presented application being M.A. (RJE) no. 56/2007 requesting the court to appoint him as guardian in respect of person and property of insane person Shivaji as well as manor daughter of Ganeshrao by name Jayashree. Application tendered by the appellant seeking his appointment as guardian was uncontested and, considering the documents placed on record including the will-deed alleged to have been executed by deceased Ganshrao in favour of the appellant, the court was pleased to appoint the appellant as guardian in respect of person and property of insane person Shivaji as well as minor child Jayashree. Sumanbai / respondent herein presented an application to the District Court at exh. 30, requesting for recalling of the order passed earlier in respect of appointment of the appellant as guardian. In the application tendered by Sumanbai, it is ao76.10 3 contended that the appellant has suppressed material facts from the court and has secured the order by misleading the court. It is contended by respondent that Shivaji is her real brother. It is also contended by respondent that appellant has adverse interest against Shivaji and it would not be prudent to appoint him as guardian in respect of the person and property of Shivaji. 4 The learned District Judge, after considering the contentions raised by respective parties was pleased to allow the application in view of order passed on 12-3-2010 and ordered cancellation of appointment of the appellant as guardian in respect of person and property of insane person Shivaji. Order passed by the learned District Judge on 12-3-2010 is subjected to challenge in this appeal. 5 Mr. Ghatge, learned counsel appearing for the appellant has vehemently contended that the learned District Judge has not appreciated the documentary evidence placed on record and proceeded to draw inference against the appellant without applying his mind to the record of the case. It is contended by the appellant that a suit being Regular Civil Suit no. 246/99 was presented by father of the appellant claiming injunction ao76.10 4 against respondent Sumanbai, her husband as well as Ganeshrao. Father of the appellant, Gulabrao, claimed decree of perpetual injunction restraining the defendants in the said suit from transferring or alienating the agricultural land. It was contended in the suit that the property belongs to the joint family and no partition is effected. Defendants in the said suit raised contention that partition is already effected in the year 1969. It is stated that deceased Ganeshrao as well as Shivaji did not contest the suit and remained ex-parte. It is thus contention of the appellant that presentation of the suit by father of the appellant cannot be construed as an act of adverse nature against the interest of insane person Shivaji, in respect of whom guardianship is claimed by the appellant. It is further contended that Sumanbai also presented suit being Regular Civil Suit no. 161/2001 against her father Ganeshrao claiming declaration and injunction in respect of landed property. Said suit came to be dismissed for want of prosecution. Suit presented by Sumanbai was on behalf of Shivaji, her insane brother. It is also contended that before presentation of the suit, no permission as required by the Guardian and Wards Act, for prosecuting litigation on behalf of the insane person was sought by Sumanbai. It is thus contended that presentation of suit by respondent Sumanbai on behalf of Shivaji cannot be construed to be an act in furtherance of protection of interest of Shivaji by ao76.10 5 the respondent. Learned counsel for the appellant has also contended that there is a complaint presented by deceased Ganeshrao against the husband of respondent Sumanbai, in respect of commission of offence punishable under sections 420, 468, 471 r/w section 34 of the Indian Penal Code. After demise of Ganeshrao, appellant requested the court to implead him as complainant in place of deceased Ganeshrao. Request made by the appellant has been accepted and the complaint is now being prosecuted by the appellant. It is thus contended that respondent Sumanbai has adverse interest against Shivaji. Reliance is also placed on the will-deed executed by Ganeshrao in favour of appellant on 7-12-1999. It is contended by the appellant that the will-deed has not been challenged till this date. Relying upon the will-deed executed on 7-12-1999, it is claimed that Ganeshrao has appointed appellant as guardian in respect of person and property of insane person Shivaji. It is also contended that appellant has presented Regular Civil Suit no. 331/2008 claiming decree of perpetual injunction against respondent. The suit is presented on behalf of insane person Shivaji and minor daughter Jayashree and, the same is pending. Respondent has approached the court for cancellation of appointment of appellant as guardian and seeking her appointment as guardian in respect of the person and property of Shivaji. ao76.10 6 6 I have perused the order passed by the court in respect of appointment of appellant as guardian as well as the subsequent order passed on 12-3-2010 whereby the earlier order passed by the court came to be recalled. On consideration of the orders passed by the court as well as on going through the record and proceeding, I am of the view that both the parties are claiming their entitlement for appointment as guardian in respect of insane person Shivaji only for the purpose of putting their claim forward in respect of the property belonging to said Shivaji. Respondent surprisingly has not challenged the part of the order passed by the District Court on 24-10-2008 whereby the appellant is appointed as guardian in respect of the person and property of minor daughter Jayashree. Respondent has only challenged the order in respect of appointment of appellant as guardian in respect of person and property of Shivaji. If appointment of appellant in respect of the person and property of minor daughter Jayashree is acceptable to the respondent, it is quite surprising as to how the order would be unsustainable only so far as appointment of appellant as guardian of insane person Shivaji is concerned. The Court while revoking the order has not applied mind to this aspect of the matter. Appointment of appellant as guardian in respect of person and property of Shivaji is based on the same set of facts and the documents on which he has been appointed as ao76.10 7 guardian in respect of person and property of minor daughter Jayashree. The learned District Judge is expected to consider the effect of acceptance of part of the order by respondent in relation to appointment of the appellant as guardian of minor daughter Jayashree. 7 On perusal of the order passed by the District Court, I am convinced that the court has not discussed the documents nor has considered the effect of execution of will deed by deceased Ganeshrao in favour of the appellant. Mr. Ghatge, learned counsel appearing for the appellant has invited my attention to the will deed executed by Ganeshrao on 7-12-1999. It is his contention that the document was placed before the court in the proceeding and the appellant had placed reliance on the said document in earlier proceeding also. On perusal of the will-deed it is noticed that deceased Ganeshrao has put his thumb impression below the written contents of the document. It is recorded in the document that after demise of Ganeshrao, appellant herein would be entitled to look after the property belonging to him as well as his insane son Shivaji. Placing reliance on the document, it is contended by the appellant that appellant is recognised as the guardian in respect of the person and property of Shivaji who is insane son of deceased Ganeshrao. It is to be noted that the original will deed is ao76.10 8 not placed on record nor the will deed is proved in accordance with the provisions of section 69 of the Indian Evidence Act. Mr. Ghatge, learned counsel appearing for the appellant contends that an opportunity may be given to the appellant to place original will deed on record and the appellant would further be granted opportunity to prove the document in accordance with the provisions of law. On perusal of the document it transpires that although deceased Ganeshrao was totally blind, the document does not appear to have been readover and explained to him. Such endorsement is not found in the document. At this stage, it would be very difficult to accept the contentions raised by the appellant, based on the document i.e. will-deed allegedly executed by deceased Ganeshrao. 8 As I have noted above, both the parties i.e. appellant as well as respondent appear to be interested in the property recorded in the name of insane son of Ganeshrao by name Shivaji. Considering the facts and circumstances of the case, it would be open for the District Court to appoint a suitable person as a guardian in respect of the person and property of insane person Shivaji or the court may appoint either the officer of the court or any other individual capable of protecting the interest of insane person. ao76.10 9 9 It is informed that the application presented by respondent being Misc. Application no. 178/2009 claiming her entitlement for appointment as guardian in respect of the person ad property of her insane brother Shivaji is pending for consideration before the District Court. Taking into consideration this aspect as well as considering the need to look into the details and to probe into the correctness as regards the contention raised by the appellant, it would be in fitness of things to remit the matter back to the District Court for reconsideration. It would be open for the District Court to permit the appellant as well as respondent herein to lead further evidence to substantiate their case. The court may after considering the evidence that would be placed on record, as well as having regard to the observations made in this judgment, may proceed to decide both applications in accordance with law. Hence the following order : 1 Appeal from order is allowed. 2 Order passed by the District Judge – 3, Parbhani in CMA(RJE) 31/2009 decided on 12-3-2010 is quashed and set aside and the matter is remitted back for reconsideration in accordance with the provisions of law. ao76.10 10 . R & P be transmitted to the court of District Judge, Parbhani, forthwith. 3 District Court is directed to consider the instant application i.e. CMA (RJE) 31/2009 presented by the respondent herein, simultaneously, and decide the same in accordance with law. 4 In the facts and circumstances of this case, there shall be no order as to costs. ( R. M. BORDE ) JUDGE dyb