GULAB BAI AND ANR. versus PUNIYA

Citation: [1966] 2 S.C.R. 102 · Decided: 07-10-1965 · Supreme Court of India · Bench: P.B. GAJENDRAGADKAR · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

102 
GULAB BAI AND ANR. 
v. 
PUNIYA 
October 7, 1965 
A 
.[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, M. HIDAYA-
B 
TULLAH, J. C. SHAH AND S. M. SIKRI, JJ.J 
Rajasthan High Court Ordinance 1949 (Raj, 15 of 1949), cl. 18-
.App/ication under Guardian & Wards Act-Appeal to Single Judge--!! 
further appeal to Division Bench competen;. 
· 
Guardian & Wards Act, 1890 (8 of 1890), ss. 47 and 48-Scope of. 
The responcknt's application under s. 25 of the Guardians and Wards 
Act for the custody of respondent's daughter was rejected by the Civil 
Judge. 
When the decision was reversed in appeal by a single Judge of the 
Rajasthan High Court, the appellants preferred an appeal to the Division 
Bench under cl. 18 of the Rajasthan High Court Ordinance. This was 
·dismissed on the ground that the appeal was incompetent having regard 
to ss. 47 and 48 of the Guardians and Wards Act. In appeal to this Court, 
FIELD : The appeal 
before the Division Bench of the Rajasthan 
'High Court under cl. 18(1) of the Ordinance was competent. [106 HJ 
The competence of an appeal before the Division Bench will have to 
be judged by the provisions of cl. 18 of the Ordinance itself and s. 48 of 
the Act has no restrictive impact. Section 48 saves the provisions of s. 4 7 
of the Act and s. !15 of the Code of Civil Procedure; and considered 
c 
D 
by themselves the prO\isions of s. 47 do not create any bar against the 
E 
competence of an appeal under cl, 18(1) of the Ordinance where the 
appeal permitted by s. 47 is heard by a single Judge. [106 G) 
Section 48 attaches finality to the order passed by the trial Court 
subject to the provisions prescribed by s. 47 of the Act and s, 115 of the 
'Code of Civil Procedure. [106 E] 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 729 of 
F 
1964. 
Appeal by special leave from the order dated February 1964 
Qf the Rajasilian High Court in D.B. Civil Appeal No. 2 of 1963. 
0. P. Varma, for the appellants. 
Mohan Behari Lal, for the respondent. 
The Judgment of the Court was delivered by 
Gajendragadkar, C.J'. 
This appeal by special leave arises from 
G 
an application made by the respondent Puniya in the Court of the 
Senior Civil Judge at Jhalawar under s. 25 of the Guardians and 
H 
Wards Act, 1890 (No. 8 of 1890) (hereinafter called 'the Act'), 
for the custody of his daughter Mt. Chitra. To this application, the 
• 
GULAB BAI v. PUNIYA ( Gajendragadkar, C.J.) 
A respondent had impleaded the two appellants, Guiab Bai and he; 
husband Onkar Lal. The respondent is a Kurnhar by caste, whereas 
the appellants ate Jat. The respondent's case was that the minor 
Chitra who was about 11 years of age at the date of the application, 
had been living with the appellants for the last 4 or 5 years with his 
consent. Whilst the minor girl was living with . .the appellants, she 
B used to come to spend some time with the respondent and his wife; 
but for some time past, the appellants did not allow Chitra to visit 
her parents. That is why the respondent thought it necessary to· 
move the Court for an ori:!er under s. 25 of the Act. 
The claim thus made by the respondent was disputed by the ap-
e pellants. They alleged that the respondent and his wife had lost 
some children in their infancy, and so, they decided to leave the 
minor in the custody of the appellants in the hope that their custody 
would save the child. Accordingly, the minor was entrusted to the 
appellants a few hours after her birth and in fact, she was given away 
by the respondent and his wife to the appellants to be looked after 
D as if she was their adopted child. During all these years, the appel-
lants have looked after the minor as their own child, have taken 
fond care of her, and have looked after her education. The appel-
lants and the respondent and his wife are neighbours, and the ap-
pellants denied the allegation made by the respondent that they ever 
obstructed the minor from visiting her parents. According to the 
E 
appellants, recently an unfortunate incident had taken place bet-
ween appellant No. 1 and the wife of the respondent and that was 
the real cau~e of the present application. They pleaded that as a. 
result of the ugly incident that took place between the two ladies, 
the minor was frightened and appeared to be disinclined to visit 
her parents any longer. 
F 
On these pleadings, the parties led evidence to support their 
respective contentions. The learned trial Judge held that the child 
had been entrusted to the appel

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