PLJ 2009 Sh.C. (AJ&K) 115
Present: Sardar M. Ashraf Khan, J.
UMAR MEHMOOD--Appellant
versus
ARSHAD MEHMOOD--Respondent
C.A. No. 58 of 2006, decided on 14.2.2009.
Guardians and Wards Act, 1890 (VIII of 1890)--
----S. 47 & Scope of--Appealable order--Application
for cancellation of guardianship certificate was disallowed--Appeal for
reversal--Validity--Controversy between the parties--Suits pertaining to
appointment of guardian of a minor of person and property of the minor are
governed by Guardians and Wards Act--Held: Appeal against order for removal of
guardian was permissible, while an order made by a Court of competent
jurisdiction refusing to remove a guardian, as in instant case has not been
made appealable--Appeal was dismissed. [P.
117] A & G
Majority Act, 1875 (IX of 1875)--
----S. 4--Scope of--Minor means a person who under the
provision of Majority Act, is to be deemed not to have attained his majority.
[P. 117] B
Majority Act, 1875 (IX of 1875)--
----S. 3--Age of majority--Minor of whose person or
property or both has been appointed by a competent Court, before the minor has
attained the age of eighteen years, shall be deemed to have attained his age of
majority, while every minor of whose property, the superintendence has been
assumed by Court of wards before the minor has completed his age of twenty one
years shall & treated as minor and not before.
[P. 117] C
Age of Minor--
----The age of minor, whose guardian of person and
property is appointed by Court shall be less than eighteen years but where the
Court assumes the superintendence and control of the persons and property of a
minor, the minor shall be deemed to have attained his majority when he shall
have completed his age of 21 years. [P.
117] D
Guardians and Wards Act, 1890 (VIII of 1890)--
----Ss. 39 & 47--Removal of guardian--Application for
cancellation guardian was rejected--Appellant has crossed the age of eighteen
years and is also appointed by a Court of competent jurisdiction--Present
appellant is ceased to be a minor, as such the appeal has become
infructuous--Appellant has filed application for removal of the guardian u/S.
39 of Act, which was rejected--According to S. 47 of Act, an appeal is allowed
in circumstances enumerated in the provision of law. [Pp. 117 & 118] E & F
Bostan Choudhry, Advocate for Appellant.
Mr. Muhammad Younis Arvi, Advocate for Respondent.
Date of hearing: 14.2.2009.
Order
The above titled appeal has been directed against the
Order of Guardian Judge Mirpur dated 17.7.2006 whereby, the application of the
appellant was disallowed by the said Court.
2. The brief facts
forming the background of the instant appeal are that the petitioner/appellant
filed an application for cancellation of Guardianship certificate issued in
favour of the respondent by the trial Court on 30.10.2005. The trial Court
after due process of law, disallowed the same vide its order dated 17.7.2006.
Hence this appeal for reversal of the same.
3. Muhammad Younis
Arvi, the learned Counsel for the respondent raised a preliminary objection and
submitted that as the appellant Umer Mehmood has attained the age of 20 years,
as such the present appeal filed by him as minor through his mother as next
friend has become infructuous therefore, the same may be dismissed.
4. Muhammad Bostan
Choudhry, the learned Counsel for the appellant was confronted with the
situation, he has frankly admitted that although appellant has crossed the age
of 18 years, yet according to Majority Act 1875 (Act XI of 1875) the age of
majority persons is 21 years, as such the minor appellant being below to the
age of 21 years is competent to contest his suit through next friend.
Therefore, the present appeal may be disposed of on merits.
5. I have heard
the learned Counsel for the parties and perused the relevant record with great
care.
6. To resolve the
controversy between the parties, it will be relevant to mention here that suits
pertaining to appointment of Guardian of a minor of person and property of the
minor are governed by the Guardians and Wards Act, 1890. Wherein the age of
majority is defined in sub-section (1) of Section 4, which says that:--
"`minor' means a person who, under the provisions of
the Majority Act, 1875 (IX of 1875), is to be deemed not to have attained his
majority".
7. According to
Majority Act, 1875 (Act IX of 1875) minor means a person who under the
provision of this act is to be deemed not to have attained his majority. Now
the question is that what is the age of majority provided in the said Act.
Section 3 of the Act contains that:--
"Every minor of whose person or property or both a
guardian, other than a guardian for a suit within the meaning of Order XXXII of
the First Schedule to the Code of Civil Procedure 1908 (Act V of 1908), has
been or shall be appointed or declared by any Court of Justice before the minor
has attained the age of eighteen years, and every minor of whose property the
superintendence has been or shall be assumed by any Court of Wards before the
minor has attained that age shall, notwithstanding anything contained in the
Succession Act, 1925 or in any other enactment, be deemed to have attained his
majority when he shall have completed his age of twenty one years and not
before."
8. The plain
reading of the above provision of law shows that a minor of whose person or
property or both has been appointed by a competent Court, before the minor has
attained the age of eighteen years, shall be deemed to have attained his age of
majority, while every minor of whose property, the superintendence has been
assumed by the Court of Wards before the minor has completed his age of
twenty-one years shall be treated as minor and not before.
9. Thus, it
becomes abundantly clear that the age of the minor, whose guardian of person
& property is appointed by the Court shall be less than eighteen years, but
where the Court assumes the superintendence & control of the persons and
property of a minor, the minor shall be deemed to have attained his majority,
when he shall have completed his age of 21 years.
10. In the present
case, as it is admitted that appellant has crossed the
age of eighteen
years and is also
appointed by a Court of competent jurisdiction therefore, the present
appellant is ceased to be a minor, as such the appeal has become infructuous.
11. It will not be
out of place to mention here, that appellant has filed the application for
removal of the guardian under Section 39 of Guardians and Wards Act, which was
rejected through the impugned order dated 17.07.2006. According to section 47 of
the above Act, an appeal is allowed only in circumstance enumerated in the said
provision of law which are as under:--
"Orders appealable: An appeal shall lie to the High
Court from an order made by the Court:--
(a) Under Section
7, appointing or declaring or refusing to appoint or declare a guardian; or
(b) Under Section
9, sub-Section (3), returning an application; or
(c) Under Section
25, making or refusing to make an order for the return of a ward to the custody
of his guardian; or
(d) Under Section
26, refusing leave for the removal of a ward from the limits of the
jurisdiction of the Court, or imposing conditions with respect thereto; or
(e) Under Section
28, or Section 29, refusing permission to a guardian to do an act referred to
in the Section; or
(f) Under Section
32, defining, restricting or extending the powers of guardian; or
(g) Under Section
39, removing a guardian; or
(h) Under Section
40, refusing to discharge a guardian; or
(i) Under Section
43, regulating the conduct or proceedings of a guardian or settling a matter in
difference between joint guardian or enforcing the order; or
(j) Under Section
44 or Section 45, imposing a penalty."
12. It transpires
from the perusal of the above provision of law that an appeal against order for
removal of guardian is permissible, while an order made by a Court of competent
jurisdiction refusing to remove a guardian, as in the present case has not been
made appealable. Thus, in this view of the matter too, the present appeal is
not competent which stands dismissed.
(R.A.) Appeal dismissed
