Dhaninder Kumar v. Deep Chand — 1990 DIGILAW 553 (ALL)

JUDGMENT : S.R.Bhargava, J. 1. This appeal, under Section 47 of the Guardian and Wards Act, 1890, has arisen from dispute between maternal and paternal grand fathers of minor Nikhil Kumar. The lower court has preferred the grand father of minor Nikhil Kumar. The lower court has paternal grand father and has appointed him guardian of the minor. Maternal grand father has, therefore, preferred this appeal. , 2. Facts are that Vineeta daughter of appellant Dhaninder Kumar, resident of Saharanpur in U.P., was married with Rakesh Kumar, youngest son of respondent Deep Chand, resident of Jagadhari. previously district Ambala, now an independent district in Haryana, on 20th February, 1984. The wedlock was blessed with son Nikhil Kumar who was born on 29th December, 1984 Poor child lost his father Rakesh Kumar on 26th March, 1985. After a short time of the death of Rakesh Kumar Vineeta along with her child in lap went to her father's house and started living there. The child become poorer by losing his mother on 27th February, 1986. It is not disputed that after the death of his mother the child was retained by his maternal grand father Dhaninder Kumar. The maternal grand father moved application dated 1st August, 1986 in the court of District Judge, Saharanpur for being appointed guardian of minor Nikhil Kumar in prescribed form. In column No 4 of his application he showed only his son Arvind Kumar as near relation of the minor He showed cause of the application and asserted that after the death of Rakesh Kumar his parents ill-treated Vineeta They were cruel to her and threatened her Then there was arbitration and according to award of the arbitrators after 15 to 20 days of the death of Rakesh Kumar Vineeta along with her son went to her father's house. After the death of Vineeta Dhaninder Kumar, applicant, has been looking after the minor. In the list of property of the minor Dhaninder Kumar showed insurance policy on the life of Rakesh Kumar of Rs. 20,000/- and a Bank Account of Vineeta in Punjab National Bank having a balance of Rs. 600/-. Dhaninder Kumar wanted to be guardian of both person and property of the minor. 3. After public notice the paternal grand father of the minor, namely, Deep Chand came to Saharanpur and filed objections. 20,000/- and a Bank Account of Vineeta in Punjab National Bank having a balance of Rs. 600/-. Dhaninder Kumar wanted to be guardian of both person and property of the minor. 3. After public notice the paternal grand father of the minor, namely, Deep Chand came to Saharanpur and filed objections. He criticized the application for appointment of guardian on ground of suppression of near relations and property of the minor. He denied the allegations of the maternal grand father that parents of Rakesh Kumar were cruel to Vineeta. He further dented all the allegations of the maternal grand father and contended that soon after the death of Rakesh Kumar Dhaninder Kumar started instigating Vinreta against her in-laws and took Vineeta her child and all her valuables. Vineeta died in mysterious circumstances. Even her father-in-law was no informed about her death. It was contended in the objections that Dhaninder Kumar wants to be guardian of the person and property of the minor only for his personal gain. It was further disclosed in the objections that the maternal grand father does not have 1 is wife whereas the paternal grand father has his wife. In the objections means of maternal grand father were attacked as inadequate. It was asserted by the paternal grand father that he wants to keep his grand son in the joint family consisting of himself, his two elder sons and their male children so that the minor may be benefited from love and affection of all his relations in the paternal side. With the objections affidavit dated 6th May, 1987 was filed by Deep Chand. 4. Then Dhaninder Kumar filed counter affidavit and Deep Chand filed rejoinder affidavit. In counter affidavit Dhaninder Kumar brought out the story that he can very well look after the minor and has means. According to him in his life time Rakesh Kumar separated from his father He remained ill for long time and all the money and valuables were consumed in his treatment. He further asserted that the inlaws of Vineeta were very harsh to her. They never bothered about her or the minor. Tin re was rejoinder affidavit by Deep Chand ft may be noted that both paternal grand father and maternal grand father filed two affidavits each. They filed some documentary evidence also. Then the parties did not adduce any evidence On 27th November. They never bothered about her or the minor. Tin re was rejoinder affidavit by Deep Chand ft may be noted that both paternal grand father and maternal grand father filed two affidavits each. They filed some documentary evidence also. Then the parties did not adduce any evidence On 27th November. 1987 it was recorded in the order sheet of the lower court that the parties did not want to adduce any further evidence. Hence, the learned lower court closed evidence and fixed the case for hearing. After hearing the counsel of the parties the same day the learned lower court preferred the paternal grand father and appointed him as guardian of person and property of the minor One of the conditions imposed was that the paternal grand-father should give immoveable property to the minor. Paternal grand father complied with this condition by getting a suit filed on behalf of the minor regarding immoveable property and conceded his claim. A decree for declaration was, therefore, framed in favour of the minor. 5. Being aggrieved with the order of the lower court, maternal grand father Dhaninder Kumar has come to this court. 6. In appeal learned counsel for the appellant vehemently argued that in the very opening of his discussion on page 6 of the order, learned lower court observed :- "Yah ek aisa durbhagya purn case hai jisme Avyask ke nana evam baba Avyask apas main nayalava main ek dusre ke viprit Khare hain our Avyask ko mohara banakar donoht uska jiwan barbaad karne par tule hue hain." In view of this observation, appointment of paternal grand-father as guardian was not in the welfare of the minor because he is bent upon spoiling the life of the minor. For appreciating this contention it would be useful to mention that at no other place in the order lower court found that the paternal grand father is spoiling the life of the minor. During monarchy king was the super guardian of the minors. Gradually by history and legislation this duty of guardianship came to courts. This duty is now commonly known as parental jurisdiction of the Courts It is a sacred duty and should be discharged with sense of responsibility. Judges should have thorough knowledge about the minor, persons contending for his guardianship and the law. Gradually by history and legislation this duty of guardianship came to courts. This duty is now commonly known as parental jurisdiction of the Courts It is a sacred duty and should be discharged with sense of responsibility. Judges should have thorough knowledge about the minor, persons contending for his guardianship and the law. Judges of the subordinate courts should be very careful in avoiding flourish in orders relating to minors of their guardian To my mind observation of the lower court pointed out by the learned counsel for the appellant is nothing but flourish and carries this court nowhere. 7. Then some legal aspects of the case may be discussed On behalf of the appellant reference was made to section 8 of the Guardian and Wards Act which interalia lays down that an order should not made for appointment or declaration of guardian under section 7 of the Act except on the application before the court. It was contended that the paternal grandfather Deepchand was non-applicant and could not be appointed guardian of the minor. But ultimately learned counsel for the appellant was fair to the court and himself cited Division Bench case of our own High Court, Narottam v. Tapesra. 1934 ALJ 652. In this case Division Bench held that it is true that a judge is not authorized by law. in the absence of an application for appointment of a guardian, to pass an order appointing the guardian of a minor. But once an application has been filed in accordance with the provisions of Sec. 10, the jurisdiction of the court comes into play, and it is open to the Judge. as a result of the enquiry intiated on the application for appointment of a guardian, to appoint a person other than the applicant as guardian of the minor, provided the person so appointed has intimated his willingness to act as a guardian It may be that it would be more inconformity with law that such willingness be communicated to the court by means of an application in accordance with the provisions of section 10 of, the Act. But absence of such an application by the person appointed guardian by the court is no bar to the jurisdiction of the court to appoint him guardian. 8. I have also carefully perused section 8 of the Act. But absence of such an application by the person appointed guardian by the court is no bar to the jurisdiction of the court to appoint him guardian. 8. I have also carefully perused section 8 of the Act. What appears is that the Judge cannot suomoto appoint a guardian of a minor. But when an application for appointment is before the Judge he can, considering the welfare of the minor, appoint even a non-applicant provided he consents to his appointment. Objections filed by the paternal grand-father Deepchand contain a clear consent for his appointment. The contention that Deepchand being non-applicant could not be appointed guardian has no substance and is rejected. Undoubtedly Deepchand is resident of Jagadhry i.e. beyond the jurisdiction of Saharanpur court. Learned counsel for the appellant placed reliance on Clause (h) of section 39 of Guardian and Wards Act and contended that in view of section 39 (h) Deepchand is not fit to be appointed guardian. 9. Section 39 (h) of the Act empowers the Judge to remove a guardian on the ground of his ceasing to reside within the local limits of the jurisdiction of the court. That power has been given with the words "the court may......remove a guardian appointed or declared by the court......" Proviso (b) of section 39 lays down that for the cause mentioned in this clause the guardian should not be removed unless such guardian has taken up such a residence as, in the opinion of the court, renders it impracticable for him to discharge the functions of the guardian. section 43 of the Guardian and Wards Act empowers the court to regulate conduct or proceedings of guardian and enforce those orders Evidently this section lays down that parental jurisdiction of the court continues even after appointing or declaring a guardian and the courts being super guardians of the minors can pass all orders for regulating the conduct or proceedings of guardian. A bare reading of section 39 (h) and Sec. 43 make it clear that a guardian who has left the jurisdiction of the court can be removed for two reasons, namely, (1) that he is unable to discharge the duty as guardian, (2) that his conduct and proceedings cannot be controlled or supervised by the court in exercise of parental jurisdiction. It is thus evident that the power of removal under section 39 (h) is discretionary and not mandatory. It is thus evident that the power of removal under section 39 (h) is discretionary and not mandatory. This view is supported by the case of Gulam Kadar v. Allahdin, AIR 1942 Lahore 162. 10. Learned counsel for the appellant placad reliance of the case of In re Sister Gemma, AIR 1970 Mad. 262 . In this case an orphan destitute was sent to Mercy Home by police. An application was moved to the court by Sister for her appointment as the guardian of the said minor and for permission and authority to transfer the child to France to be taken care of, maintained and educated by a citizen1 of France, who expressed said desire and has also given an undertaking to repatriate the minor at her cost whenever necessary. On these facts it was observed that the petition and the relief claimed were somewhat peculiar. Normally a court exercising powers and functions in respect of guardians and minors does not appoint a guardian for the purpose of transferring the custody of the minor concerned to a third party, that too beyond the jurisdiction of the court. But that is not inflexible rule of law. Considering the facts of the case the relief claimed in the petition was allowed Even after considering this case no rigid rule can be laid down that a person living beyond the jurisdiction of the court cannot be appointed guardian. Paramount consideration always is the welfare of the minor. If the appointment of a person living beyond the jurisdiction of the court is in the welfare of the minor and the court is in a position to exercise control over the conduct and proceedings of such person as guardian, the court can- appoint even a person living beyond its jurisdiction as guardian of the minor. In this connection there is division Bench case of our own High Court, Beni Prasad v. Mst. Parvati, AIR 1933 Alld 780. In this case it was laid down that there is nothing in the Guardian and Wards Act which debars a court from appointing a guardian who is not residing within the jurisdiction of the court to which an application is made. Parvati, AIR 1933 Alld 780. In this case it was laid down that there is nothing in the Guardian and Wards Act which debars a court from appointing a guardian who is not residing within the jurisdiction of the court to which an application is made. Under Section 7 a court should appoint a guardian whenever it is satisfied that it is for the welfare of the minor that an order should be made Section 39 (h) does not imply that a person applying for appointment must be residing within the jurisdiction of the court to which the application is made. What Clause (h) means is that in certain cases, ceasing to live within the jurisdiction of the court, which made the order of appointment, may be ground for removal of the guardian from his office and no more The only duty cast on the court under the Act is to appoint best person to act as guardian regardless of his place of residence. In this case their Lordships explained and distinguished the earlier Division Bench case Asqar Ali v. Amina Begum, AIR 1914 Alld. 541. Having considered the law on the subject, I hold that mere residence of a person beyond the jurisdiction of the court cannot disentitle such person from appointment as guardian of the minor ordinarily residing within the jurisdiction of the court It may further be stated that in the welfare of the minor, the court can permit removal of the minor to a place beyond the jurisdiction of the court. 11. On behalf of the appellant procedure of the learned lower court in accepting the affidavits as evidence and deciding the case on affidavits was adversely commented upon. The learned counsel for the appellant placed reliance on section 1 of the Evidence Act and definition of "evidence" given in section 3 of the Evidence Act. It was argued that in accordance with section 1 of the Act affidavits could not be governed by the Act and according to definition they could not be evidence. Then the learned counsel placed reliance on Order 18, Rules 2 and 4 CPC and Order 19, Rule 1 CPC. He contended that the procedure of evidence laid down in Order 18, Rules 2 and 4 CPC was not followed and there was no order under Order 19, Rule 1 CPC. Then the learned counsel placed reliance on Order 18, Rules 2 and 4 CPC and Order 19, Rule 1 CPC. He contended that the procedure of evidence laid down in Order 18, Rules 2 and 4 CPC was not followed and there was no order under Order 19, Rule 1 CPC. Hence also the affidavits could not be evidence The learned counsel maintained that proceedings under the Guardian and Wards Act are civil proceedings in civil court and are miscellaneous in nature. Civil Procedure Code applies to the proceedings in view of Section 141 CPC. What the learned counsel for the appellant argued was that both the counsel of the parties and the Presiding Judge of the lower court were in confusion about the procedure to be adopted in the proceedings for appointment of guardian. Affidavits could not be filled in evidence and the court had no jurisdiction to rely upon them as evidence. Case has been decided on illegal evidence or without evidence. Hence this Court should set aside the order under appeal and send back the case to the lower court for legal evidence and for fresh disposal On behalf of the appellant reliance was placed on the cases reported as Smt. Kamini Mayi Debi v. Bhusan Chandra Ghose, AIR 1926 Cal. 1193, Capt. Dushyant Somal v. Smt. Sushma Somal, AIR 1981 SC 1026 , Munir Ahmad v. State of Rajasthan, AIR 1989 SC 705 , Smt. Anjula v Milan Kumar, 1981 AWC 107 , Ram Chandra Agarwal v. The State of Uttar Pradesh, ATR 1966 SC 1888. Shiv Saran Dass Bhagwan Das v. Smt Satbhirawan Trust, Delhi, AIR 1961 Pun. 17, and Deokishen v. Asaram, AIR 1933 Nagpur 62 ON behalf of the respondent reliance was placed on the cases reported as Ranjit Singh v. State of Pepsu (now Punjab), AIR 1959 SC 843 , Taluqdar Singh v. State, 1955 ALJ 155, Mohd. Shafi v. Shamin Banoo, ATR 1979 Bom. 156 and Dr. Mrs. Veena Kapoor v. Varinder Kumar Kapoor, AIR 1982 SC 792 . 12. For appreciating the contentions advanced on behalf of the parties it would be useful to refer to the scheme of the Guardian and Wards Act so far as it relates to procedure. Shafi v. Shamin Banoo, ATR 1979 Bom. 156 and Dr. Mrs. Veena Kapoor v. Varinder Kumar Kapoor, AIR 1982 SC 792 . 12. For appreciating the contentions advanced on behalf of the parties it would be useful to refer to the scheme of the Guardian and Wards Act so far as it relates to procedure. There is no doubt in the fact that the Guardian and Wards Act is a special Act and according to Section 4 (I) CPC unless the special law prescribe any special form of procedure provisions of Civil Procedure Code should apply Section 7 of the Guardian and Wards Act empowers the Court to appoint a guardian. Section 3 lays down the persons entitled to apply for appointment of guardian and further lays down that the Courts can appoint a guardian only on application and not suo moto. Section 9 lays down that the district courts where the minor ordinarily resides or has property, have jurisdiction to entertain application in respect of guardianship. If an application of guardianship of the property of the minor is made to a district court other than that having jurisdiction in the place where the minor ordinarily resides, the court may return the application if, in its opinion, the application would be disposed of more justly and conveniently by any other district court having jurisdiction. Section 10 prescribes form of application and the procedure for its being signed and verified. This Section makes it very clear that application for appointment of guardian should be signed and verified in the manner prescribed by CPC. Section 11 of the Act lays down- that if there is ground for proceeding on the application, the court should fix a day for hearing and cause notice of the application to the person or persons named in the application, or proposed in the application to be appointed or declared guardian or any other person to whom court considers notice desirable This section further lays down that these notices should be served in the manner prescribed in the Civil Procedure Code. The public notice should be posted on some conspicuous place of the court house, residence of the minor and otherwise published in such manner as this court, subject to any Rules made by the High Court, under this Act, thinks fit. In this very section in certain circumstances notice to Collector is also envisaged. The public notice should be posted on some conspicuous place of the court house, residence of the minor and otherwise published in such manner as this court, subject to any Rules made by the High Court, under this Act, thinks fit. In this very section in certain circumstances notice to Collector is also envisaged. Then there is Section 12 which empowers the court to make interim order for protection of minor and his property. Section 13 requires that on the day fixed for hearing of the application, or as soon as afterwards as may be, the court should hear such evidence as may be adduced in support of or in opposition to the application. Hearing such evidence as may be adduced is altogether inconsistent with the provisions of CPC and Evidence Act. It gives ample discretion to the Court to accept any evidence adduced before the Court. It does not .give discretion to the Court to ask the parties to adduce further evidence. Then there is Section 46 (I) in the Act which empowers the Court to call report from Collector or any subordinate court for report on any matter arising in any proceedings under the Act and treat the report as evidence. The above sections and the Act have a special procedure relating to evidence in proceedings for appointment of guardian. There is one very important Division Bench case of our own High Court Mst Khundi Devi v. Chotey Lal, AlR 1922 Alld. 338. In this case Justice Walsh said – "As long as I sit in this Court, at any rate, I shall turn a deaf ear to all arguments based upon proceedings under the Guardian and Wards Act which attack them on the ground of a lack of that formality and precision of procedure which the Code exacts from a Court in India in a trial of a suit properly so called. The exercise of a parental jurisdiction in guardianship matters by a District Judge is by no means to be weighed in golden scales like the ordinary trial of a suit between parties for money or land, and under the painful circumstances of this case, and with the previous knowledge that the learned judge was quite entitled to receive and to weigh a report called for by him from a person in the responsible post of a Tehsildar under the control of the Collector. We are not impressed by Mr. Agarwala's contention that he has acted without proper regard to the Act of Parliament, Statute, or the Laws of Evidence, or the procedure laid down by the Civil Procedure Code." This' ruling has not yet been distinguished or over-ruled and is still binding. 13. What happened in the instant case was that both the parties filed affidavits and then said that they did not propose to adduce any further evidence. The lower court seized of the proceedings, closed evidence and fixed the case for arguments. Since the Act prescribes a special procedure it was within the competence of the lower court to hear that evidence and to proceed to decide the case. I have gone through the Rules framed by both Bombay and Allahabad High Courts and they do not have any specific rules of evidence. In absence of any specific rule to the contrary, the power of the lower court to accept any form of evidence adduced was not curtailed. Hence, the argument advanced on behalf of the appellant that proper procedure regarding evidence was not followed has to be thrown out. 14. It may be assumed for sake of argument that even to proceedings for appointment of guardian under the Guardian and Wards Act in view of Section 141 Order 19 Rule 1 CPC applies. Under this Rule any court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit or that the affidavit of any witness may be read at the hearing. On such conditions as the Court thinks reasonable. From the proceedings of the lower court it is evident that both the parties filed affidavits and relied upon the affidavits and lower court read them in deciding the case. It did not, however, pass an express order that the affidavits could be read at the hearing. It is well established principle of law that whatever trial court can do, appellate court can also do. In exercise of parental jurisdiction paramount consideration is welfare of the minor. Protected litigation on the basis of procedural wrangling is never in the welfare of the minor. It is always desirable that the minor should be placed under proper guardianship beneficial to him or her at the earliest. Any defect in form of procedure should not hamper the welfare of the minor. Protected litigation on the basis of procedural wrangling is never in the welfare of the minor. It is always desirable that the minor should be placed under proper guardianship beneficial to him or her at the earliest. Any defect in form of procedure should not hamper the welfare of the minor. On the other hand it appears that after filing affidavits the contesting parties did not want to adduce any other evidence. I hold that there are sufficient reasons for ordering that affidavits filed in the lower court may be read in decision of matter of guardianship of minor Nikhil Kumar. The affidavit filed on behalf of respondent Deepchand paternal grandfather of the minor, were vehemently criticized on behalf of the appellant on the ground that they were not properly verified and even those matters which were not within the knowledge of the deponent and of which he could have only some information, were verified on personel knowledge. It need not be overlooked that in Mufassils rules of pleadings or verification are not strictly complied with. One need not expect the same skill in the Mufassils as is available in the High Court. At the same time defect in verification is not always fatal. In writ petition, it may be considered fatal in some circumstances. But the court always has discretion for condoning the detect of verification. In other words, it may be said that defect in verification is a curable defect and the court has discretion to ignore defect in verification. In cases of minor it cannot expedient to throw out affidavits on ground of defect in verification There can be no quarrel with the jurisdiction of the High Court to discard affidavits in writ petitions not properly verified. For this principle no ruling or instance need not be cited. But there is lot of difference between writ petitions in the High Court and guardianships proceedings in district court. 15. Learned lower court treated paternal grandfather Deepchand as natural guardian. Attempt was made to codify the law relating to guardianship of Hindu minors by the Hindu Minority and Guardianship Act, 1956. Section 2 of the Act itself lays down that the provisions of the Act shall be addition to, and not save as hereinafter specially provided, in derogation of the Guardians and Wards Act, 1990. In section 4 (b) of the Act word 'guardian' was defined. Section 2 of the Act itself lays down that the provisions of the Act shall be addition to, and not save as hereinafter specially provided, in derogation of the Guardians and Wards Act, 1990. In section 4 (b) of the Act word 'guardian' was defined. That definition is not exhaustive. It lays down that guardian means a person having the care of the person of a .minor of his property or of both his person and property, and includes- (1) a natural guardian. In section A (c) 'natural guardian' was defined as any of the guardians mentioned in section 6. Section 5 of the Act expressly overrules any text rule or interpretation of the Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Act with respect to any matter for which provisions have been made in the Act. In section 6 only father, mother and husband have been mentioned as natural guardians. It has been conceded by the learned counsel for the parties in this court that paternal grandfather is not a natural guardian. Even in the text of Hindu Law and judicial pronouncements paternal grandfather was not denned as natural guardian. There was, however, a trend to prefer the paternal grandfather in appointment of guardian of a Hindu minor and the reason for the same was that a Hindu family is presumed to be a joint family in which the senior most member is the Karta responsible for protection of the minor members and their property i.e. interest in the joint property. There is, however, no presumption that a Hindu Joint family owns joint family property. But when there is a presumption of joint family even the juniormost male member is a coparcener entitled to protection of the Karta. 16. After above discussion of law I come to the facts, circumstances and evidence of this case. It was vehemently argued on behalf of the appellant that the paternal grandfather is not a fit person to watch the welfare of the minor. He will, if appointed, take away the minor to Jagadhry outside the jurisdiction of Saharanpur court. Judicial notice should be taken of the fact that distance between Saharanpur and Jagadhry is hardly between 40 to 50 kms. He will, if appointed, take away the minor to Jagadhry outside the jurisdiction of Saharanpur court. Judicial notice should be taken of the fact that distance between Saharanpur and Jagadhry is hardly between 40 to 50 kms. If the paternal grandfather takes the minor to Jagadhry he can discbarge his duties as guardian at Jagadhry and distance between Saharapur and Jagadhry being not much, court at Saharanpur can conveniently exercise control over the conduct and proceedings of the guardian towards the minor. From that point of view it cannot be said that Deepchand paternal grandfather is not a fit person to be appointed guardian. Section 17 (1) of the Guardian and Wards Act lays down the general principle that in appointing or declaring guardian of a minor, the court should be guided by what consistently with law to which the minor is subjected appears in the circumstances to be for the welfare of the minor. Section 17 (2) of the Act, interalia lays down that the previous relations of the proposed guardian with the minor of his property should be a factor for consideration of the welfare of the minor. It was urged on behalf of the appellant that Deepchand was ill disposed and cruel to minor's mother and was indifferent to the minor. Hence as laid down in the cases of G Ponniah Asari v. Suppiah Asari, AIR. 1935 Madras 363 and Muthu Swamy Chettiar v. K. M. Chenna Muthu Swaray Mupanar, AIR 1935 Madras 195, Deepchand should not be appointed guardian of the minor. In colutn 9 of the application for appointment of guardian, Dhaninder Kumar alleged that after the death of Rakesh Kumar, treatment of Vinita's in-law towards her became extremely cruel. They extended different threats to her. Ultimately according to Arbitration Award, Vinita alongwith her son came to live with her father. Both the parties have accepted the Arbitration Award, a copy of which is in the lower court record. This award was signed not only by the Arbitrators but also by Vinita, her father and father-in-law. In this award recitation by the Arbitrators was that they were appointed as Arbitrators by Dhaninder Kumar, Vinita and Deepchand by writing dated 11 -4-1985. Both the parties have accepted the Arbitration Award, a copy of which is in the lower court record. This award was signed not only by the Arbitrators but also by Vinita, her father and father-in-law. In this award recitation by the Arbitrators was that they were appointed as Arbitrators by Dhaninder Kumar, Vinita and Deepchand by writing dated 11 -4-1985. Arbitrators then recorded their conclusion "Vinita Bawajah Phautgi apne pati Rakesh Kumar te wajah se dukhi hai aur alag rahna chahti hain Jiske nisbat Lala Deep Chand wo Lala Dhaninder Kumar ko bhi koi ujur nahain hai " Hence the decision by the Arbitrate rs was that all the household goods of the deceased Rakesh and all the goods of Vinita at the pointing of Vinita be given to her; whatever money is deposited in the name of Rakesh Kumar In any bank or post office should be given to Vinita who shall not be responsible for payment of any debt incurred by Rakesh Kumar. In case Rakesh Kumar borrowed any money against fixed deposit, the debt would be adjustable against fixed deposit. Insurance claim of L.I.C. policy of Rs. 20,000/- shall be paid to Vinita. Besides that Deepchand should further pay Ks. 7,500/- as maintenance and thereafter Vinita will have no claim over the property of Deepchand. It is admitted between the parties that this award was acted upon. In pursuance of the award dated 13-4- 1985 Vinita executed receipt acknowledging delivery of the goods given in dowry, household goods, personal Stri Dhan and Rs. 7,500/-. Although the Arbitration Award and the receipt were not admitted by Dhaninder Kumar, yet in affidavits both the parties placed reliance on the award. It is significant to note that in the affidavits filed by Dhaninder Kumar even this much was admitted that payment of debt of Rakesh Kumar was made from his Fixed Deposit. 17. It is very important to note that in the award Arbitrators did not say a word that after the death of Rakesh Kumar his parents were cruel to his wife. On the other hand what they said was that Vinita was sad on account of the death of Rakesh Kumar. Deprivation of spouse is something very serious and it is not unusual that on account of that deprivation the widows and particularly the young widows decide to live with their parents. On the other hand what they said was that Vinita was sad on account of the death of Rakesh Kumar. Deprivation of spouse is something very serious and it is not unusual that on account of that deprivation the widows and particularly the young widows decide to live with their parents. I am afraid that the documentary evidence does not show that the parents of Rakesh Kumar were cruel or indifferent to Vinita or her son. On the other hand it appears that after objections and affidavits of Deepchand Dhaninder Kumar became wiser and took the plea that even before the death of Rakesh Kumar his parents were ill disposed towards Vinita. Rakesh Kumar then separate his own business. Fact that Rakesh Kumar had separate business cannot mitigate presumption of joint ness of the family because even in a joint family a member can have a separate property and business. Having considered affidavits and documentary evidence i hold that the case of Dhaninder Kumar that parents of Rakesh Kumar were cruel to Vinita is not correct. 18. It is admitted between the parties that after the Arbitration Award Vinita and her son went to live with Dhaninder Kumar. Vinita died at her father's house. There is affidavit of Deepchand that Dhaninder Kumar did not inform Deepchand about the death of Vinita. It is very unfortunate that even in application for appointment of guardian Dhaninder Kumar did not disclose Deepchand as near relation of the minor. Then what appears from the application for appointment of guardian is the assertion of Dhaninder Kumar that after Vinita and her son came to live with him, he met their expenses. Documentary evidence discussed earlier shows that Vinita not only received her personal Stri Dhan, which could be her valuables, but also received a sum of Rs. 7,500/- from Deepchand. If Dhaninder Kumar was meeting the expenses of his daughter and her son, what happened to that money and valuable and if that money and valuables disappeared the version of Dhaninder Kumar that he met the expenses of Vinita and her son is not correct. Thus there is sufficient suppression by Dhaninder Kumar which corroborates the case of Deepchand that he was not informed of the death of Vinita. How then he can be saddled with indifference towards his grandson Nikhil Kumar. Thus there is sufficient suppression by Dhaninder Kumar which corroborates the case of Deepchand that he was not informed of the death of Vinita. How then he can be saddled with indifference towards his grandson Nikhil Kumar. It is not disputed between the parties that Deepchand has his wife i.e. the minor has his paternal grand-mother. But it is unfortunate that Dhaninder Kumar has lost his wife and that means that the minor does not have maternal grand-mother. Affection conferred by grand mothers cannot be ever compared with the affection of aunts whether on paternal side or maternal side. At the same time it has to be noted that the Arbitrators required Deepchand to pay maintenance of Rs. 7,500/- in lumpsum to Vinita. Unless there was some joint family property in hands of Deepcband that would not have been possible. This means that if the minor is placed under the guardianship of his paternal grandfather he will have the advantage not only of affection of his paternal grandfather his paternal grandmother but also security of his interest in the joint family property. There are affidavits of Deepchand that he is a man of means. Means of Dhaninder Kumar need not be deprecated. But only this much need be said that the minor and his property will be more secure under the guardianship of paternal grandfather. 19. In result it cannot be said that the lower court exercised discretion in appointing paternal grandfather Deepchand as guardian of minor Nikhil Kumar, arbitrarily or illegally. There is no reason to interfere in the discretion exercised by the lower court. 20. Before parting with this judgment it would be worthwhile to mention that after appeal was filed, expert stay of lower court order was granted. Respondent Deepchand moved application for vacating the stay order. He filed counter affidavit and then there was a rejoinder affidavit of appellant Dhaninder Kumar. But both the parties agreed that instead of disposing the stay application, this court may hear and dispose of the appeal. During arguments learned counsel for respondent wanted to place reliance upon the affidavits filed in respect of the matter of stay. I am afraid that his appellate court did not grant any permission for any additional evidence. The affidavits filed in connection with the matter of stay cannot be relied upon as additional evidence. During arguments learned counsel for respondent wanted to place reliance upon the affidavits filed in respect of the matter of stay. I am afraid that his appellate court did not grant any permission for any additional evidence. The affidavits filed in connection with the matter of stay cannot be relied upon as additional evidence. Hence this court has not considered the affidavits filed in connection with stay matter. In result this appeal is dismissed. Exparte stay order granted earlier is vacated. Learned lower court shall prescribe conditions regarding conduct and proceedings of the guardian with respect to progress of the minor and his prosperity. Appeal dismissed.