Case: Sahibzada Saiyed Muhammedamirabbas Abbassi &amp; Others Vs. The State Of Madhya Bharat&amp; Others

Ratlam for an order that he be appointed a guardian of the person and property of petitioners 2 and 3. On November 23, 1949, the second respondent, Sultan Hamid Khan, cousin of Musharraf Jehan Begam applied that he be appointed guardian of the person and property of petitioners 2 and 3 and by order dated December 5, 1949, the District Court appointed him guardian and rejected the application filed by the first petitioner. Against the order passed by the District Court, Ratlam, Appeal No. 20 of 1950 was filed in the High Court of Madhya Bharat. This appeal was dismissed on March 29, 1954. An application for special leave to appeal to this court under Art. 136 against that order of the High Court was rejected on November 12, 1956.4. The first petitioner had, in the meantime, applied to this court under Art. 32 of the Constitution for the reliefs which have already been set out. To this petition, petitioners 2 and 3 were impleaded as party petitioners, the first petitioner alleging that he was their natural guardian and next friend. Evidently, the first petitioner could not claim to be the next friend of the minor petitioners 2 and 3, a guardian of their person and property having been appointed by the District Court, Ratlam unless this court for reasons to be recorded deemed it to be for the welfare of the minors that the first petitioner be permitted to act or be appointed as the case may be (vide O. 32, R. 4 of the Code of Civil Procedure). The first petitioner did not obtain any order of this court permitting him to act as the next friend of petitioners 2 and 3 notwithstanding the order passed by the District Court appointing respondent No. 2 as their guardian.5. The petition filed by the first petitioner is a somewhat prolix document. The first petitioner claimed that the interest of the second respondent who was appointed a guardian by the District Court was adverse to the interests of the minors, and that the latter was, in any event, unfit to be appointed a guardian of the minors, that the second respondent had misappropriated the property of the minors and that he was not looking after the minors and was acting contrary to their interests and that proceedings in the District Court were vitiated on account of partiality and collusion and by reason of deliberate violation of the order passed by the High Court. The petitioner also claimed that the State of Madhya Bharat was bound to take steps to protect the entire property of the minor petitioners 2 and 3, but the first respondent had neglected to do so and had thereby rendered itself liable to make good the loss.6. On these allegations, the first petitioner submitted that the minor petitioners were deprived of the equal protection of the laws in force including the Personal Law and were accordingly discriminated against and their property was, by reason of such discrimination in serious danger of being wasted or misappropriated. He also submitted that he could not be denied his rights under the Personal Law governing the minors as their natural guardian, merely because he had acquired a foreign domicile.7. Exercising jurisdiction under Art. 32 of the Constitution, this court may grant relief for enforcement only of the rights conferred by Part III of the Constitution.The alleged right of the first petitioner to guardianship of his minor children under the Personal Law is not one of the fundamental rights guaranteed to him by the Constitution; nor by appointing respondent No. 2 as the guardian of the minors under the Guardians and Wards Act is discrimination practised against the minors. The second respondent was appointed guardian of the minors by order of a competent court, and denial of equality before the law or the equal protection of the laws can be claimed against executive action or legislative process but not against the decision of a competent tribunal. The remedy of a person aggrieved by the decision of a competent judicial tribunal is to approach for redress a superior tribunal, if there be one.In the present case, against the order of the District Court appointing the second respondent the guardian of the person and property of the minors, an appeal was preferred to the High Court and that appeal was dismissed. Even an application for special leave to appeal to this court was rejected, and the order of the District Court became final. If, since the date on which the order appointing the guardian of the minors, events have transpired which necessitate a modification of that order the proper remedy of the first petitioner is to apply to the District Court for relief in that behalf and not to approach this court for a writ under Art. 32 of the Constitution.8. This court has rejected the application for special leave to appeal under Art. 136; and that order cannot be circumvented by resorting to an application for a writ under Art. 32.Relief under Art. 32 for enforcement of a right conferred by Ch. III can be granted only on proof of that right and infringement thereof, and if, by the adjudication by a court of competent jurisdiction the right claimed has been negatived, a petition to this court under Art. 32 of the Constitution for enforcement of that right, notwithstanding the adjudication of the civil court, cannot be entertained.9. The relief claimed by the first petitioner for assessing the liability of the respondents on the plea that they have either misappropriated the estate or by negligence caused loss to the estate of the minors, may be obtained in a properly constituted suit and not in a petition under Art. 32 of the Constitution. The property to which the minors are or may be entitled may be ascertained in a proceeding under the Guardians and Wards Act or in a suit in the civil court and not in a petition under Art. 32 of the Constitution.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]4. The first petitioner had, in the meantime, applied to this court under Art. 32 of the Constitution for the reliefs which have already been set out. To this petition, petitioners 2 and 3 were impleaded as party petitioners, the first petitioner alleging that he was their natural guardian and next friend. Evidently, the first petitioner could not claim to be the next friend of the minor petitioners 2 and 3, a guardian of their person and property having been appointed by the District Court, Ratlam unless this court for reasons to be recorded deemed it to be for the welfare of the minors that the first petitioner be permitted to act or be appointed as the case may be (vide O. 32, R. 4 of the Code of Civil Procedure). The first petitioner did not obtain any order of this court permitting him to act as the next friend of petitioners 2 and 3 notwithstanding the order passed by the District Court appointing respondent No. 2 as their guardian.5. The petition filed by the first petitioner is a somewhat prolix document. The first petitioner claimed that the interest of the second respondent who was appointed a guardian by the District Court was adverse to the interests of the minors, and that the latter was, in any event, unfit to be appointed a guardian of the minors, that the second respondent had misappropriated the property of the minors and that he was not looking after the minors and was acting contrary to their interests and that proceedings in the District Court were vitiated on account of partiality and collusion and by reason of deliberate violation of the order passed by the High Court. The petitioner also claimed that the State of Madhya Bharat was bound to take steps to protect the entire property of the minor petitioners 2 and 3, but the first respondent had neglected to do so and had thereby rendered itself liable to make good thesince the date on which the order appointing the guardian of the minors, events have transpired which necessitate a modification of that order the proper remedy of the first petitioner is to apply to the District Court for relief in that behalf and not to approach this court for a writ under Art. 32 of the Constitution.8. This court has rejected the application for special leave to appeal under Art. 136; and that order cannot be circumvented by resorting to an application for a writ under Art. 32.Relief under Art. 32 for enforcement of a right conferred by Ch. III can be granted only on proof of that right and infringement thereof, and if, by the adjudication by a court of competent jurisdiction the right claimed has been negatived, a petition to this court under Art. 32 of the Constitution for enforcement of that right, notwithstanding the adjudication of the civil court, cannot be entertained.9. The relief claimed by the first petitioner for assessing the liability of the respondents on the plea that they have either misappropriated the estate or by negligence caused loss to the estate of the minors, may be obtained in a properly constituted suit and not in a petition under Art. 32 of the Constitution. The property to which the minors are or may be entitled may be ascertained in a proceeding under the Guardians and Wards Act or in a suit in the civil court and not in a petition under Art. 32 of the Constitution.