These four applications were taken out for directing the applicant's son Dhanraj not to prevent the applicant from occupying the premises, directing the tenants in the properties in the hands of the respondent to pay rents to the applicant and directing the respondent to vacate the premises owned by the applicant and also for a further direction to the respondent to furnish accounts for the rent collected from the year 2000 till date.
2.The applicant was the respondent in O.P.No.267 of 1998. The original petition was filed by the respondent herein to appoint her as guardian of the minor children of the applicant S.Dhanaraj and S.Baby Rani. The respondent is the maternal grand mother of the children. This Court after trial, appointed the respondent as guardian of the two minor children, who were respectively born on 12.5.1987 and 25.5.1989. The applicant was disqualified from having the custody as he was a charge for murder of the mother of the minor children. This Court, by an order, dated 11.11.1998 gave the custody to the respondent with visiting rights to the applicant.
3.After the appointment of guardianship, the respondent filed an application in A.No.3500 of 2000 for enabling her to collect rents from the tenants of the building. It was stated that the minor children have proportionate interest in the property and the amounts were required to meet the educational, medical and upkeep of the minor children. This Court, by an order, dated 16.11.2000, passed the following order:
"5.The two minors are now under the care and protection of the petitioner. The respondent is now undergoing life sentence as he is said to have committed murder of his wife. The petitioner's daughter alone was given in marriage to the respondent. Admittedly, the respondent is undergoing life sentence and as the minors have to be maintained, it is just and necessary that the petitioner can be permitted to collect the rent as she was already appointed as guardian of the minors by this court. Under the circumstance, the petitioner is permitted to collect the rent from the property and maintain a true and proper account and file the same into the court once in a year."
4.The applicant has now come forward with the present applications on being released from the prison on 15.9.2008. When he went to stay in his own residence, he alleged that he was not allowed to go inside and the tenants also are paying rents only to the respondent. The applicant was made to sign papers as if he was willing to accept Rs.3000/- towards the entire rent. Since he was prevented from occupying the house and also prevented from collecting rents from the tenants and that the respondent is refusing to vacate the premises, these applications were filed.
5.On notice from this court, the respondent has filed a counter affidavit, denying the allegations. It was stated that his son Dhanraj is doing his B.Sc.(Maths) decree and he has also become a major and is occupying the premises on his own right. Therefore, the question of vacating the premises does not arise. In fact, it was the applicant who was giving trouble to the respondent and to his son. It was also stated that the applicant had agreed to receive Rs.3000/- p.m. and sine he had denied the same in his affidavit, has has suppressed a vital information. It was stated that the present applications taken out by the applicant are totally misconceived.
6.In a guardianship proceedings, only if the minor's properties are squandered or devastated, the Court can intervene and set right the injustice being done to the minor. In the present case, both minor children have become major. Therefore, this Court will cease to have any jurisdiction over the minors or their properties under the provisions of the GAWA. Further, the inter-se claim of the property dispute between the minor and their natural guardian cannot be resolved by this Court under this jurisdiction.
7.The allegation that the properties have been squandered by the court appointed guardian has been denied. It has also been stated that while his daughter is no more and the minor son is undergoing college education, it cannot be said that the respondent is not taking care of the children all these years. If at all, the applicant is aggrieved about the dispossession of his property and denied his share of profits arising out of the property, he has to institute appropriate legal proceedings against the person concerned and cannot convert the guardianship jurisdiction vested on this court under Clause 17 of the Letters Patent read with Section 3 of the GAWA into a suit for recovery of possession of the property. Section 41(c) of GAWA makes the power of a guardian to cease when the ward ceases to be a minor. Likewise, Section 41(2)(c) makes it clear that a guardian of the property will cease when the ward ceased to be a minor. Hence the relief claimed against the respondent/guardian is not maintainable.
8.This Court in V.N.Swaminathan vs. Angayarkanni Ammal and others reported in AIR 1964 Madras 11 held that notwithstanding the provisions of the Hindu Minority and Guardianship Act, 1956, Section 41(1)(c) of the GAWA will override. In page 12, it has been observed as follows:-
"The purpose of the Act is not to supersede the provisions of the Guardians and Wards Act 1890, but to supplement it. It follows, therefore, that to the extent the first part of Section 3 of the Indian Majority Act provides that where a Court guardian has been appointed for the person of a minor he shall be deemed to be minor until he shall have completed the age of 21 years, it is not inconsistent with the definition of a minor under S.4(1) of the Hindu minority and Guardianship Act itself had provided for a complete Code including provisions for appointment of guardians, it would have been a different matter. The definition in
Section 4(a) will therefore govern only the application of the other provisions of the Act, which do not include appointment of a guardian of a person of a minor."
9.This view was also followed by the Gujarat High Court in AIR 1986 Gujarat 116 in the matter of Prakash Navnitbhai. In paragraph 7, it was observed as follows:
"7....The overriding effect of the latter Act comes in only in case of inconsistency between its provisions and any other law in force immediately before its commencement. Similar view has been taken by the Madras High Court in the case of Swaminathan v. Angayarkanni Ammal reported in Air 1965 Mad 11."
10.Similarly, Kerala High Court in a judgment in G.P.Vijayakumar Vs. Punjab & Sind Bank reported in AIR 1999 Kerala 367, in paragraph 3 observed as follows:
"3....A person can act as guardian in respect of the property of the minor so long as he continues to be a minor. The son of the petitioner, on attaining the age of 18 years, is no longer a minor as defined in the Act. Therefore, he is free to deal with the property. The money deposited by the father is his property. So he can deal with the property as if he is not a minor. The order of the Court below is not legal and as such it is liable to be revised."
11.In the present case, even these controversies are not required, because admittedly, Dhanaraj has completed even 21 years. In the light of the above, the applications are misconceived. Accordingly, they are dismissed. No costs.
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