SHARDABAI BABRUWAN HUSLURE AND ANOTHERversusKUM. MANSA VINOD HULSURE UNDER ILLEGAL CUSTODY OF UDDHAV PANDURANG GAMBHIRE AND ANOTHER

2026:BHC-AUG:43229



                                                              Writ Petition No.4450 of 2022.doc


                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   BENCH AT AURANGABAD

                                WRIT PETITION NO.4450 OF 2022

                                                                            District : Latur
            1.       Shardabai w/o Babruwan Huslure,
                     Age 60 years, occupation Household,
                     Residing presently at Sitaram Peth,
                     Near Prakash Talkies, Hyderabad.

            2.       Babruwan s/o Limbajirao Hulsure,
                     Age 69 years, occupation Nil,
                     Residing at Taadmugali,
                     Taluka Nilanga, District Latur,                 ..Petitioners
                                                                  (Orig. Plaintiffs)


                           VERSUS


            1.       Kum. Mansa d/o Vinod Hulsure,
                     Age 13 years, Age : Minor,
                     Under illegal custody of
                     Uddhav s/o Pandurang Gambhire,
                     Age 60 years, Occupation Nil,
                     Residing at Yerol, Taluka Shirur Anantpal,
                      District Latur

            2.       Mrs. Kavita w/o Vinod Hulsure,
                     Died, per L.R. Respondent No. 1 above
                                                                    ..Respondents
                                                                  (Orig. Respondents)

                                            ----
            Mr.Hemant Surve, Advocate i/b. Mr.Kshitij Surve and Mr.Rohan Sawant,
            Advocates for petitioners

            Mr.Pravin G. Patil, Advocate for respondents
                                                ----
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                       CORAM :              AJIT B. KADETHANKAR, J.
                 RESERVED ON :              SEPTEMBER 15,2026
               PRONOUNCED ON :              SEPTEMBER 23, 2026

ORDER :-

Subject-matter :

              “Whether if the Trial Court is justified to appoint

maternal grandfather of a minor girl, instead of appointing her father

as her “Guardian” in a suit instituted by her paternal grandparents

for cancellation of a registered Gift Deed executed in her favor” is

the issue to be decided in this case.

              Impugned order needs to be tested on the touchstone of

doctrine of parens patriae.

              Feeling aggrieved by the a common order dated 01-02-

2022 passed by the learned Civil Judge Senior Division Latur on

applications below Exh.29 and 33, the Petitioners/Plaintiffs are before

this Court.



Facts in Brief :-

2.            There was serious marital controversy between the

petitioners’ son    - Vinod and his wife Kavita (now deceased). The

couple had begotten a daughter namely Mansa. On account of

marital discord between the couple, deceased Kavita moved to her
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parental house together with her minor daughter Mansa somewhere

in the year 2016.


3.          A    number     of   litigations   including     matrimonial

proceedings, civil and criminal prosecution, etc., between the parties

arose out of the matrimonial disputes.


4.          In the meantime, the Petitioners executed a gift deed in

favor of their grand-daughter – Mansa (respondent no.1) in respect of

an agricultural property and a residential property. The Gift deed is

registered at Sr.No.7110 of 2017 on 21-10-2017 in the office of the

Sub-Registrar Class-II, Latur.


5.          Contending that the gift deed got executed forcibly by

Kavita’s father, the Petitioners instituted Special Civil Suit No.168 of

2018 in the court of learned Civil Judge, Senior Division, Latur

seeking cancellation of the gift instrument, recovery of possession

and injunction. The suit was filed against the Donee and the

Daughter-in-Law - Kavita. Since the defendant No.1 –Mansa (Present

R.No.1) was minor, the Defendant No.2- Kavita was shown to be her

guardian.


6.          While the suit was pending, Mrs. Kavita died on 21-04-

2021. Consequent to her death, the Petitioners filed an application
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(Exh.29) to add the name of their son – Vinod as legal heir of the

deceased Kavita. They contended that Kavita died leaving behind her

two legal heirs i.e. the Defendant No.1- minor daughter Mansa, and

husband – Vinod. Contending that Vinod happened to be husband of

deceased Kavita, permission was sought to add Vinod in the suit.


7.          While application Exh.29 was pending, deceased Kavita’s

father - Udhavrao Gambhire filed an application at Exh.33 to permit

him to represent the minor grand-daughter Mansa as per Will deed

executed by deceased Kavita. This application was on the backdrop

of the fact that Kavita died during pendency of the suit.


8.          Trial Court heard both the applications simultaneously,

and decided those vide a common order dated 01-02-2022. For the

reasons recorded, Trial Court rejected the application Exh.29 filed by

the Petitioners, while application Exh.33 filed by Kavita’s father

Udhavrao Gambhire came to be allowed. Impugning the order dated

01-02-2022 passed by the Learned 4 th Civil Judge, Senior Division,

Latur, the Petitioners are before this Court.


Submissions :-


9.          Mr. Hemant Surve, learned advocate for the Petitioners

submitted his predominant objection that since marital relations
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between the deceased Kavita and Vinod were in existence on the

date of Kavita’s death, Trial Court ought to have permitted the

Plaintiffs to amend the title clause by adding Vinod as legal heir of

deceased Kavita.



10.         It is further contention of Petitioners’ learned advocate if

the biological father of the minor child was alive, the Trial Court was

not justified in allowing Udhavrao’s application at Exh.33. He further

submits that the will deed, as could be seen from its recitals itself, is

highly doubtful as regards to its execution and legality. Questioning

rationality in the reasoning rendered by the Trial Court in holding

Petitioners’ son disqualified to represent his own daughter as her

guardian, it is prayed to quash and set aside the impugned order.

Consequent prayer to allow the application below Exh.29 is also

averred. Learned advocate places reliance on Section 38 and 29 of

the Guardianship and Wards Act, 1890, and sought to justify the

prayers.



11.         Per contra, learned advocate Mr.Pravin G Patil for the

responding side, would advocate the reasons recorded by the Trial

Court while passing the impugned order dated 01-02-2022. He would

submit that considering the nature of controversy and the litigation
                                      6                  Writ Petition No.4450 of 2022.doc



pending among the parties, the Trial court has rightly passed the

impugned order. He thus prays to dismiss the Writ Petition.



Discussion and consideration:-

12.         I heard both the sides extensively. Although prayers in

both the applications look different, but they are inter-linked as could

be seen further.


            First, I shall deal with Petitioners’ application at Exh.29.


13.         In first application i.e. Exh.29, the plaintiffs seek to

amend the title clause by incorporating their son’s name (Vinod) as

party defendant No.2, in the capacity of legal heir of deceased

defendant No.2.


14.   The suit is filed challenging legality and validity of a registered

gift deed executed by the Plaintiffs in favor minor defendant Ms.

Mansa. Deceased Kavita is not         party to the instrument in any

capacity. Hence for the purpose of seeking declaration as to the

nullity of the gift deed, deceased Kavita is neither a necessary party

nor a proper party.


15.         It is contended in the plaint that the gift deed was

executed at the behest of and with illegal indulgence of deceased
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Kavita, and her maternal relatives. Other prayers of Possession and

Injunction are the reliefs claimed against minor granddaughter Ms.

Mansa and the deceased Kavita. Undisputedly, Ms. Mansa severed

from Plaintiff’s son Vinod since 2016 together with deceased Kavita.

They were living with deceased Kavita’s father – Udhavrao. Ms.

Mansa is still living with her maternal grandfather- Udhavrao. The

whole case is that due to marital controversy between deceased

Kavita and Vinod, the gift deed has taken place. It would be an

unacceptable perception that in the peculiar facts, Vinod would be

succeeding deceased Kavita’s possession over the 'suit-property' in

any capacity.


16.        Plaintiffs are absolutely under misconception of law that

their Son – Vinod could be impleaded in the suit as ‘Legal Heir’ of

deceased Kavita in the light of the averments against deceased

Kavita in the suit. Deceased Kavita is alleged to be holding

possession over the 'suit-property' in the capacity of Guardian of

minor defendant Mansa. Hence for the Decree of Possession and

consequential relief of Injunction, deceased Kavita was made party

to the suit. This is not a situation where any right or liability in

succession accrues in Vinod.
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               For the reasons recorded above, the application at

Exh.29 cannot be granted. The Trial court has rightly rejected the

application.

                     Now, I shall deal with application exh.33

17.            It is evident that the marital discord between Petitioners’

son Vinod and his wife deceased Kavita is the base of all the

controversy.     During   the   lifetime       of   deceased   Kavita,       various

litigations among the parties took place as observed supra. The

relationship among the parties is not in dispute, although there are

disputes among them. It is a matter of fact that Respondent no.1 –

Ms.Mansa, a minor is living with her maternal grandfather Mr.

Udhavrao Gambhire, since when her mother left her matrimonial

home. Proceedings for custody of the minor Mansa is still pending

before the concerned family court.


18.            The suit is filed by petitioners/grandparents of the minor

Donee- Mansa, against her and her deceased mother. Obviously, in

the light of the controversy between deceased Kavita on one hand

and her husband, parents-in-laws on other hand, it would be in the

interest of justice that the minor – Mansa stands represented by her

maternal grandfather with whom she is residing since a long.
                                      9                    Writ Petition No.4450 of 2022.doc



19.        Plaintiffs’ contention is that the subject-matter - gift deed

was got executed from them forcibly at the instance of the deceased

Kavita, her maternal relatives, father and brother. The Trial Court

considered various litigations pending among the parties. The Trial

court considered the provisions under Section 9 (3) of the Hindu

Minority and Guardianship Act, 1956 (“Act of 1956”, for brevity) and

rightly observed that on the backdrop of the controversy, it would be

in the interest of the minor that her maternal grandfather be

appointed as her (Mansa) Guardian. It is trite law that welfare and

safeguard of a minor’s interest has paramount consideration in such

proceedings while appointing guardian of a minor.

20.        Section 9(3) of the Act of 1956 reads thus:

                 A Hindu widow entitled to act as the natural
                 guardian of her minor legitimate children, and a
                 Hindu mother entitled to act as the natural
                 guardian of her minor legitimate children by
                 reason of the fact that the father has become
                 disentitled to act as such, may, by will, appoint a
                 guardian for any of them in respect of the minor’s
                 person or in respect of the minor’s property
                 (other than the undivided interest referred to in
                 section 12) or in respect of both.

21.          Trial Court referred to the contents of the Will Deed

executed by the deceased Kavita whereby she recorded her will that

her father be entrusted to look after the properties gifted by her

Parents-in-law to minor daughter - Mansa. Obviously, this includes
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defending the suit too. The Petition is styled and argued as if the

Petition is filed by or on behalf of Vinod. No other circumstances

needed to observe that the petition seems to be a proxy petition so

far it advocates appointment of Vinod as guardian of minor Mansa,

and disputes the findings of the trial court to hold Vinod unfit to be

so appointed.     In view of these facts, the Trial court is justified in

appointing Mr. Udhavrao Gambhire as Guardian of the minor

Ms.Mansa in the suit taking recourse to the Section 9(3) of the Act of

1956.


22.         One more aspect I need to observe. The Petitioners are

dominus litis. In the peculiar circumstances when Kavita died, it is

but obvious that the Plaintiff would pray to the Court to appoint a fit

and competent person to represent the minor defendant Mansa.

Even they may suggest a name or dispute a name. However, it is for

the concerned court to exercise the parens patriae jurisdiction in

such situation.   In my opinion, the plaintiffs can neither insist for

their Son’s name nor can advocate him as to how despite such

serious controversies among the parties, only he could be appointed

as guardian of minor Ms.Mansa. The job is left to the concerned court

to take appropriate decision in the interest of justice.
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23.         I have taken on record the strong objection of the

petitioners to the recitals of the will deed. Mr.Surve, learned

advocate for the Petitioners vehemently pointed out that the scribe

of the instrument himself has signed on the instrument as one of the

attesting witnesses.


24.         Suffice to note, the law does not forbid a Scribe/writer of

a Will to be an attesting witness. Beneficial reference can be made to

the observations made by the Honorable Supreme Court in a case

reported at 2006 SCC Online SC 46 (Mathew Oommen Vs.

Suseela Mathew) that such course is quite natural and normal.


25.         During the course of hearing, the learned advocate for

the petitioners cited a 7/12 extract wherein name of minor’s

maternal grandfather is recorded as her guardian. Name of Ms.

Mansa is mutated on the basis of the registered gift deed.

Udhavrao’s name is recorded as guardian of a minor. No ownership is

created nor could be created in the name of the grandfather on the

basis of the will deed. Besides that, life of such mutation showing

grandfather’s name is only until minor girl attains majority.            Such

objection is absolutely irrelevant to the present controversy.
                                     12                   Writ Petition No.4450 of 2022.doc



26.         In so far as the petitioners’ contention as regards

reference to Section 38 and 39 of the Guardianship and Wards Act

1890 it shall not be of any avail to the Petitioners. Text of the Section

38 of the Act of 1890 reads thus:-


                  38. Right of survivorship among joint guardians.
                  On the death of one of two or more joint
                  guardians, the guardianship continues to the
                  survivor or survivors until a further appointment
                  is made by the Court.


27.          In the light of the facts of the case as are discussed

above, application of the aforesaid provision and section 39 of the

Act of 1890 are not at all attracted.


28.         For the reasons recorded above, I do not find that the

Trial Court committed any error in passing the impugned order dated

01-02-2022. In fact, I must appreciate that the Trial Court has very

cautiously exercised the parens patriae jurisdiction. I am of the

opinion that for the reasons recorded, the petition appears to be an

abuse of process and is liable to be dismissed with costs. However,

to avoid further bitterness among the parties, I refrain from imposing

cost.
                                      13                    Writ Petition No.4450 of 2022.doc




29.          Considering the pending controversies, it is clarified that

the    observations   recorded   herein    are   to   the   extent        of     the

applications exh.29 and 33 decided by the Trial Court. Hence, I pass

following order:-


                                 ORDER


                    The Writ Petition stands dismissed.




                                    [AJIT B. KADETHANKAR, J.]
                                  ………..
 KBP