Sooka v. Ram Ratan — 1987 DIGILAW 481 (ALL)

JUDGMENT K. N. Misra, J. 1. Both the above appeals are directed against the same judgment and order dated 13-12-1983 passed by the Additional District Judge, Barabanki in Misc. Appeal No. 26 of 1981 by which Smt. Sooka mother of the minor Ram Saran son of Vishram has been appointed as guardian of her minor son and both Smt. Sooka and Ram Ratan son of Bhikha have been jointly appointed as guardian of the property of the said minor with a condition that they shall not have any right to dispose of the minor's property either by sale or compromise or otherwise in any suit in favour of any person. Aggrieved by this order Smt. Sooka filed F.A.F.O. No. 24 of 1984 and Ram Ratan has filed F.A.F.O. No. 43 of 1984. In her appeal Smt. Sooka had prayed that she be appointed sole guardian of the minor's property as well which consists of one house and agricultural plot measuring 2 bighas 19 biswansis situate in village Khahrenia, Pargana Kursi, Tehsil and District Barabanki. Ram Ratan in his appeal has prayed that he be appointed as sole guardian of the persons and property of the minor. 2. I have heard learned counsel for the parties and have perused the impugned order very carefully. It has been urged on behalf of appellant Ram Ratan that Smt. Sooka after death of her husband Vishram had remarried with Sheo Ram resident of village Khahrenia. It was, thus, urged that since Smt. Sooka had remarried, and, as such, she cannot be appointed as guardian of the minor son born from the wedlock of her first husband Vishram. I do not find any merit in this contention. In the matters regarding appointment of guardian of persons and property of the minor the welfare of the child is of prime importance. At the time when the question of appointment of guardian of the minor cropped up, he was aged 7 years. It has been asserted on behalf of Smt. Sooka that upon death of her husband Vishram the appellant Ram Ratan, who is grand son of the cousin brother of Vishram, had started harassing her and as a result of it there was danger to her life and property and also to the life and property of the minor child. It has been asserted on behalf of Smt. Sooka that upon death of her husband Vishram the appellant Ram Ratan, who is grand son of the cousin brother of Vishram, had started harassing her and as a result of it there was danger to her life and property and also to the life and property of the minor child. She had, therefore, no option but to leave the village and go to her father's place and ultimately she was left with no option but to marry with Shiv Ram of village Khahrenia. It is not disputed that Smt. Sooka has no issue from the wedlock of her second husband Shiv Ram. In these circumstances looking to the welfare of the child I find that the order appointing Smt. Sooka as guardian of the minor child is perfectly justified. She being the mother is the natural guardian of the minor Ram Saran can very well be appointed as guardian of persons and property of the minor child. The mere fact that the mother has remarried is no disqualification in law to the appointment of the mother as Guardian of the person and property of the minor child. It is fairly well settled that a Hindu widow does not by the mere fact of her marriage lose her right of guardianship. The primary and paramount consideration for the court in making any order for the appointment of guardian would be the welfare of the minor and remarriage would not disentitle the mother to act as natural guardian of the minor nor it would be a disqualification to her appointment as guardian-See Bakshi Ram Ladha Ram v. Mst Shila Devi, AIR 1960 Punjab 304. 3. It was, however, urged that since Smt Sooka has remarried and so the minor will not get any love, affection and protection from her and he will not be comfortable in the company of the mother and her second husband and especially when children may be born to her in future. I do not find any substance in this contention. It was, however, urged that since Smt Sooka has remarried and so the minor will not get any love, affection and protection from her and he will not be comfortable in the company of the mother and her second husband and especially when children may be born to her in future. I do not find any substance in this contention. The question whether the minor child would or would not feel happy and comfortable with his natural mother who has remarried would depend on several factors such as the nature of disposition of the mother, the behaviour of the second husband with the child and the extent of influence which he may be able to exercise requiring the mother to give more care and attention to his children, if any born to her with his union and to ignore the child of her first husband. IT is hardly acceptable that the mother would lose all love and affection and would treat the child with cruelty and indifference on bearing a child from second husband. IT is always expected that the mother's love and her affection will be equally distributed amongst all her children born from first and second husband. She being not the step-mother of the child cannot think of giving step motherly treatment and to treat the child from her first husband with roughness and cruelty. The second husband may show indifference to the child of her first husband but that is not always true nor on such probability it can be assumed that the child will not be properly looked after by the mother. Thus, unless there is evidence to suggest that the second husband is treating the child of her first husband with cruelty and that she is also treating him likewise under the pressure of husband or her own accord it cannot be said that the child's welfare will be in jeopardy merely on remarriage of the mother and possibility of bearing a child in future with the second husband. In the instant case there is no evidence to the effect that the child is being treated with cruelty and indifference by the mother and her second husband. 4. It has been stated in the affidavit filed by her dated April 4, 1986 that the minor at present is aged about 10 years and is studying in class III in Primary Pathshala. 4. It has been stated in the affidavit filed by her dated April 4, 1986 that the minor at present is aged about 10 years and is studying in class III in Primary Pathshala. She has further stated that she is looking after the welfare of the minor child with her meagre income of Rs. 5/- per day which she is getting by doing manual labour, domestic work and cutting fodder. IT has further been alleged that she is looking after the minor child with all due care, love and affection, and, as such I do not find any good ground to interfere with the order passed by the 1st Addl. District Judge, Barabanki, appointing Smt. Sooka guardian of the person of the minor Ram Saran son of Vishram. So far as the question of appointment of guardian of the property of the minor is concerned, I find that the learned I Additional District Judge has fell in error in appointing two persons as guardian of a very little property of the minor which consists of one house and agricultural plot measuring 2 bighas 19 biswansis. In Munawwar Khan v. Tasalli Khan, AIR 1930 Alld. 225 (1) it has been observed :- "Where property is not large and the Court has appointed separate guardians of persons of the minors, and the appointment of as many guardians of property as that of persons would lead to waste, property may be left in the hands of one of such guardians. 5. Thus in view of the above I find that in respect of the aforesaid property of the minor Ram Saran, the learned Court below should not have appointed two persons to act as guardian. It has been urged by learned counsel that as regards the property of the minor, there has been litigation and Ram Kumar and Ram Baksh had filed a declaratory suit, which was decreed in the revenue courts on the basis of admission contained in the written statement filed by Smt. Sooka wherein she had admitted the claim of Ram Kunwar and Ram Baksh adverse to the interest of the minor relating to his property in suit. Smt. Sooka has denied the fact and has alleged that she never filed any written statement in favour of Ram Kunwar and Ram Baksh and when she came to know about the fraudulent decree she filed restoration application in the revenue court. It is, thus, clear that Smt. Sooka was apparently duped by Ram Kunwar and Ram Baksh who apparently quite surreptitiously and fraudulently got the written statement filed as has been alleged by her. THUS quite apparently she cannot be said to have knowingly acted against the interest of minor and she has taken necessary steps for safe-guarding the interest of the minor seeking setting aside the decree. The Revenue Court would take care to safe-guard the interest of minor and rectify the wrong done safe-guarding interest of the minor by deciding the case on merits and in accordance with law. Learned counsel for the appellant Smt. Sooka has informed me that the said case is still pending. It is urged by learned counsel appearing for Ram Ratan that although the application for setting aside the decree was filed some time in the year 1983, but the learned court has not so far disposed of the application. The delay in disposal of said application and even if it is still pending would, however, not be of any hurdle in the matter relating to appointment of guardian of the property of the minor. The learned court below has appointed Smt. Sooka and Ram Ratan as guardian of property of the minor. As already observed above, the appointment of two persons as guardian of the property of the minor was not called for on the facts and circumstances of the case, and, as such, the impugned order dated 13-12-1983 passed by the learned court below appointing Smt. Sooka and Ram Ratan deserves to be modified. It is not disputed that the minor Ram Saran is living with his mother Smt. Sooka and she is looking after his welfare and education. She, therefore, requires funds for the upkeep of the child and to meet day-to-day expenses and also the expenses which are incurred by her in providing education to the child. The opposite party Ram Ratan, who is appellant in F.A.F.O. No. 43 of 1984 had claimed that he is in possession over the agricultural land belonging to the minor. She, therefore, requires funds for the upkeep of the child and to meet day-to-day expenses and also the expenses which are incurred by her in providing education to the child. The opposite party Ram Ratan, who is appellant in F.A.F.O. No. 43 of 1984 had claimed that he is in possession over the agricultural land belonging to the minor. He by order dated 17th April, 1984 was directed to cut and sell Arhar and wheat crop standing on the agricultural land and deposit the proceeds in Court. The respondents were restrained from interfering with the applicant's carrying out the order. In all other respects it was ordered that status quo be maintained. Inspite of this order, the appellant Ram Ratan had not deposited the sale-proceeds of the harvested crop. Subsequently by order dated 10th August, 1984 he was required to deposit Rs. 400/- which according to him was the sale proceeds of the Arhar and wheat crop. It was stated by Ram Ratan at that time that he could only harvest 1/4th of the crop and the remaining 3/4 crop was taken away by strangers. It, therefore, indicates that Ram Ratan is not able to look after the property of the minor. Either he had given wrong statement that 3/4th crop was harvested by strangers or if the said statement be taken to be correct that only l/4th crop was harvested by him, then it is quite evident that he is not able to look after the property of the minor properly. He has also not cared to furnish the accounts in respect of the crops sown by him subsequently in the year 1985-1986, it, therefore, appears that he has mis-appropriated the crops which he has grown on the minor's aforesaid agricultural land as Supurdar. Since the minor child is now living under the guardianship of his mother, and, as such, it appears quite appropriate that the mother Smt. Sooka be appointed as guardian of the property of the minor. There appears no necessity to appoint two persons as guardian of the property of the minor as already stated above. Since the minor child is now living under the guardianship of his mother, and, as such, it appears quite appropriate that the mother Smt. Sooka be appointed as guardian of the property of the minor. There appears no necessity to appoint two persons as guardian of the property of the minor as already stated above. In order to safeguard interest of the minor it appears necessary to provide a condition that Smt. Sooka, who will alone act as guardian of property and person of the minor, will have no right to dispose of the minor's property either by sale or compromise or otherwise in any suit in favour of any person. She may either get the land cultivated by herself through labourers etc. or may grant licence yearly for cultivating the land on 'Batai' on behalf of the minor. Such licence, if granted, will be only granted for a period of one year. It can be renewed from year to year or may be granted to other person for the best management of the property in question. The licence will not create any right, title or interest in the land of the minor. Smt. Sooka would also prosecute the case deligently which has been filed by Ram Kunwar and Ram Baksh in the revenue court and will safeguard the interest of the minor in all respects. 6. Learned lower court, namely, I Additional District Judge, Bara Banki will issue notice to Ram Ratan asking him to submit accounts regarding the crops shown by him in the year 1985, 1986 and 1987. He will be required to deposit the amount. The amount of Rs. 400/- which has been deposited by Ram Ratan in F.A.F.O. No. 43 of 1984 shall be paid to the respondent Smt. Sooka on her moving an application for withdrawal of the money. In the result, F.A.F.O. No. 24 of 1984 succeeds and is hereby allowed and Smt. Sooka is appointed guardian of person and property of the minor Ram Saran son of Vishram. F.A.F.O. No. 43 of 1984 is dismissed. Costs on parties.