C.S. Nayudu, J. - (1.) THIS reference is made by the District Judge, Cachar at Silchar, before whom the guardianship proceedings were instituted and are pending. The learned District Judge points out that the Petitioner before him in the petition which was filed under Section 10 of the Guardians and Wards Act (Act' 8 of 1890), hereinafter referred to as 'the Act', is the mother of the two minor children. The petition was opposed before the learned District Judge, Silchar, by the father of the minors. It would appear from the reference that Misc. Case No. 29 of 1961 was before the Additional District Judge's Court, Lower Assam Districts, at Gauhati, for the same relief, namely the appointment of a guardian of the person of the minors. This reference was accordingly mode under Section 14 of the Act.
(2.) MR . Ghose, the learned Counsel for the father of the minors, the Petitioner before the District Judge at Gauhati, points out that as the proceedings were instituted by the father earlier, namely 21 -3 -1960, whereas the proceedings by the mother, in the District Judge's Court at Silchar, were Instituted only on 11 -12 -1961 and that as the proceedings in the District Judge's Court at Gauhati were instituted much earlier, that Court alone should be allowed to proceed with the matter. He also points out that the Additional District Judge's Court at Gauhati, recorded evidence in the case and had made some progress in the matter and that the request of the mother of the minors for having the proceedings transferred to the District Judge's Court at Silchar was rejected by the District Judge, Gauhati. The only point that requires to be considered in this reference is whether the proceedings should be allowed to continue in the District Judge's Court at Silchar or in the Additional District Judge's Court, Gauhati. In this connection, reference is required to be made to Section 9 of the Act, the relevant portion whereof is as follows: 9. Court having jurisdiction to entertain application, -(1) If the application is with respect to the guardianship of the person of the minor it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.
(3.) IT is contended by Mr. Ghose that the expression "ordinarily resides does not mean casual or factual resi dence of the minors at the time of the application being made, and that normally the residence of the minor should be taken as the place where the legal guardian is residing. He placed reliance in the cases of Jhala Harpalsinh v. Bai Arunkunvar,, AIR 1954 Sau 13; Chandra Kishore v. Smt. Hem lata Gupta, (S), All 1955 All 611 and Sarada Nayar v. Vayan kara Amma, : AIR 1957 Ker 158. In, AIR 1954 Sau 13, it is held that mere factual residence at a place at the time of the proceeding is not sufficient to give jurisdiction to the Court where such residence happens to be, and that the word 'ordinarily' has been intentionally used to bring in considerations other than that of mere factual residence. In : AIR 1955 All 611, it was held that the words "ordinarily resides" obviously mean more than temporary residence, even though such residence is spread over a long period. Again, in : AIR 1957 Ker 158, it was held that the expression "where the minor ordinarily resides" appears to have been deliberately used to exclude places to which the minor may be removed at or about the time of the filing of the application for the enforcement of the guardianship and custody of the minor, and that the phrase "ordinarily resides" indicates ordinary residence even at the time of Hie presentation of the application under Section 25 of the Act, and that the emphasis is undoubtedly on the minor's ordinary place of residence....;