Judgment :- J. KANAKARAJ, J.: 1. This appeal relates to the guardianship of an unfortunate minor girl, who had the misfortune of losing both her parents. 2. O.P.No.26 of 1991 was filed by the maternal grandfather and grandmother of the minor child, under the Guardians and Wards Act. 3. The minor childs mother by name Indu and father by name Padmakumar were married and the minor girl was born on 22.11.1987. Both the mother and the father were employed at Bangalore. The minor child was attending a nursery school at Malleswaram, Bangalore. The minors name is Aiswarya. The mother of the minor by name Indu died at Bangalore on 30.1.1991. After the cremation, on 1.2.1991, the minor childs father Padmakumar, his brother Krishnakumar and another brother Chidambara Doss returned to Thakkalai, Nagercoil district. At Thakkalai, the minor child was entrusted to the first petitioner, who is the grandmother. On 16.2.1991, it so happened that the minors father Padmakumar died at Kootumangalam and his body was cremated on 16.2.1991. On 17.2.1991 it is stated that the minor child was brought from Thakkalai to Kootumangalam for the purpose of offering flowers to the ashes of the deceased father. It was promised that the child will be returned back in the evening. Accordingly, the petitioners sent the minor child along with their son Jeganmohan. Thereafter, the respondents who are the paternal grand-parents and paternal uncle of the minor child refused to return the minor child to the petitioners who are the maternal grand-parents. Certain other allegations are also made with reference to the conduct of the respondents which are not very relevant for the issue before us. According to the petitioners, the paternal grandparents are not qualified to have the custody of the minor child, both because of their age and because of their financial circumstances. According to the petitioners, they are more suitable to be the guardians of the minor child, and the welfare, comfort and happiness of the minor child will be safeguarded if the minor child is left with the custody of the petitioners. 4. In the counter affidavit filed by the paternal grandparents (respondents 1 and 2), all the allegations were denied. They denied that they had agreed to return the child after offering flowers to the ashes of the minor childs father. They denied that the maternal grandparents are more suitable to bring up the minor child. 4. In the counter affidavit filed by the paternal grandparents (respondents 1 and 2), all the allegations were denied. They denied that they had agreed to return the child after offering flowers to the ashes of the minor childs father. They denied that the maternal grandparents are more suitable to bring up the minor child. It was further contended that the second respondent viz., the paternal grandmother is an heir to the deceased Padmakumar and therefore rightly entitled to have the custody of the child. They also contended that they have sufficient funds to bring up the child. In law, they claimed that the paternal grandparents should be preferred to the maternal grandparents in respect of the custody of the minor child. 5. O.P.No.66 of 1991 was filed by the paternal grand father independently, seeking to be appointed as the guardian of the minor child under Sec. 10 of the Guardians and Wards Act. This petition was opposed by the maternal grandparents who are the respondents in the said case. 6. Both the petitions were taken together by the District Judge, Kanyakumari, and he held that the first petitioner being the maternal grandmother was the fit and proper person to be the guardian of the person and property of the minor child Iyswariya. He also held that the 1st respondent, the paternal grandfather was not fit enough to be appointed as guardian of the minor child. Two appeals, C.M.A.Nos.994 of 1992 and 1139 of 1992 were filed in the High Court Madras. C.M.A.No.994 of 1992 was filed by the paternal grandparents and the paternal uncle by name Krishnakumar, whereas C.M.A.No.1139 of 1992 was filed by the paternal grandfather alone against the judgment in O.P.No.66 of 1991. AR.Lakshmanan, J. by his common order dated 30.9.1993 dismissed both appeals. He granted two weeks time for delivering the minor child to the maternal grandparents. Liberty was given to the paternal grand-parents to see the minor child whenever they wanted and to take the child to their residence on festive occasions. Two appeals have been preferred under Clause 15 of the Letters Patent against the said C.M.A.Nos.994 and 1139 of 1992. Pending disposal of the appeals, there is an interim stay of the order of the learned single judge. Two appeals have been preferred under Clause 15 of the Letters Patent against the said C.M.A.Nos.994 and 1139 of 1992. Pending disposal of the appeals, there is an interim stay of the order of the learned single judge. Consequently, the minor child continues to be in the custody of the appellants herein, who are the paternal grand parents and paternal uncle of the minor child. 7. Before us, it is admitted that the child has all along been in the custody of the third appellant in L.P.A.No.168 of 1993 being the paternal uncle of the minor child. In other words, it is not the paternal grandparents who are seeking the custody of the child and it is only the paternal uncle Krishnakumar who is claiming the custody of the child. We are aware of the fact that paternal uncle never claimed guardianship in the courts below, nor did he file any affidavit under Sec. 10(3) of the Guardians and Wards Act. This aspect of the case has given a curious twist to the entire case and Mr.S.V.Jayaraman appearing for the appellants argues that the claim of the paternal uncle could be considered by us in this Letters Patent Appeal because the welfare of the minor child is the primary concern of the court. For this purpose, a joint affidavit has now been filed by the paternal uncle Krishnakumar and his wife Kamaleswari. They have no children even though they were married long ago. They also assert that they have no chance of getting any child and ever since February, 1991, the minor child Iswariya has become part of their family and they are bringing up the child as their own daughter. They claim that the child is very much attached to them. They undertake to give the best of the education to the child and take care of the child by bestowing care, attention and love and affection on the child. For the purpose of satisfying the requirements of Sec. 10(3) of the Guardians and Wards Act, they are filing an affidavit along with the petition seeking permission of the courts to accept the affidavit as one of willingness to have the custody of the minor child. For the purpose of satisfying the requirements of Sec. 10(3) of the Guardians and Wards Act, they are filing an affidavit along with the petition seeking permission of the courts to accept the affidavit as one of willingness to have the custody of the minor child. A counter affidavit has been filed by the respondents in the appeals, opposing the permission sought for on the ground that it cannot be filed at this late stage and the entire appeal is not maintainable at the behest of the paternal uncle. They also contend that the court cannot permit the paternal uncle to file an affidavit at this stage seeking appointment of the paternal uncle as the guardian of the child. That was not be case before the courts below. They also contend that the chances of the dependents of the affidavit getting a child are not ruled out, and that therefore, the welfare of the minor child is likely to be affected, if the deponents beget a child for themselves. 8. We are, therefore, called upon to decide practically, a new case, with reference to the guardianship of the minor child. We have to decide in the light of the claim made by the maternal grandparents whose claim was accepted by the courts below, whether the present claim made by the paternal uncle can be considered at this stage and decision rendered. No doubt it will be easy for us to reject the claim of the paternal uncle and his wife by stating that they had never come forward with a petition to appoint themselves as guardian of the minor. They had never filed an affidavit of willingness before the court below. The only point is there, is that the paternal uncle was impleaded as the third respondent in O.P.No.26 of 1991 filed by the maternal grandparents. This is because the child was all along in the custody of the paternal uncle and his wife. Such an allegation made in the affidavit filed before us has not been disputed by the respondents. 9. Having regard to the tender age of the child and to find out the wishes of the child and to have a personal assessment of the capacity of the parties, we called for the presence of all the parties including the minor child, in our chambers. 9. Having regard to the tender age of the child and to find out the wishes of the child and to have a personal assessment of the capacity of the parties, we called for the presence of all the parties including the minor child, in our chambers. We had a discussion with the paternal grandparents, maternal grandparents, the paternal uncle and his wife separately as well as the minor child Iswariya. The impression that we were able to get, is that the minor child is treating the paternal uncle and his wife as her parents for all purposes. She is going to an English Medium School and she seems happy about the surroundings and her living with her paternal uncle. It has to be remembered that during the summer vacation, the child was with the respondents for about a month. In spite of all our persuasion to persuade the child to live with the respondents at least for one month, we could not succeed and the child was adamant in refusing to go to the maternal grand parents. Therefore, our personal talks with all the parties has left us with this clear cut impression that the welfare and happiness of the minor child can be maintained at least for the present, only if she is allowed to continue in the house of the paternal uncle and his wife. 10. As between the maternal grandparents, the paternal grandparents and the paternal uncle and his wife, there is little to choose and in the absence of the father and mother of the child, there is no reason why the child should not be entrusted to the care and custody of the paternal uncle at least for the reason that the child has been living with them from the age of 3 years. We have ascertained the ability of the paternal uncle to take care of the child and it is stated that they are living in their own house and that there could not be any difficulty in the child being brought up in good care and comfort. 11. We will however refer to some of the decisions relied on by the parties before rendering a decision with reference to the welfare of the child. 12. 11. We will however refer to some of the decisions relied on by the parties before rendering a decision with reference to the welfare of the child. 12. Before the introduction of the Hindu Minority and Guardianship Act, the legal position was as follows: In Maynes Hindu Law, the following passage is worth noticing (12th Edition, Page 461): “In default to the mother, or if she is unfit to exercise the trust, the nearest male kinsmen should be appointed, the paternal kindred having preference over the maternal.” In Mullas Hindu Law (paragraph 518 at page 536-16th Edn. the relevant passage is as follows; “Failing the father and mother the court may appoint a maternal kinsman as guardian of the minor, but the court is not bound to do so. It may appoint a maternal relation in preference to a paternal relation; it may even appoint a stranger if the welfare of the minor requires it.” Under Sec.6 of the Hindu Minority and Guardianship Act a natural guardian of a Hindu minor, both in respect of his person and property is the father. After him, the mother, in the case of a boy or of an unmarried girl. It is made clear that the provisions of the Act shall be in addition to and not in derogation of the Guardians and Wards Act, 1890. Gulbai and Leelabai IN RE. , I.L.R. 32 Bom. 50, the minor girl therein were in the same situation, having lost both the mother and the father. The contest was between the maternal grand mother on the one hand and the paternal uncle and the paternal aunt (fathers sister) on the other. The court appointed the paternal relations as the guardian and observed thus: “The minors are Hindus and according to Hindu Law in the case of minors who have lost both the parents, the nearest male kinsman should be appointed, the paternal kinsman having the preference over the maternal (See Maynes Hindu Law, 7th Edition, page 2723-Sec.211).” 13. Therefore, strictly applying the principles of law, the paternal relations have to be preferred and there is no big difference between the paternal grandparents and paternal uncle (fathers brother). 14. However, the trial court and the learned single Judge accepted the claim of the maternal grandparents on the following considerations: 1. The maternal grandparents are affluent and the maternal grandmother is a headmistress. 2. 14. However, the trial court and the learned single Judge accepted the claim of the maternal grandparents on the following considerations: 1. The maternal grandparents are affluent and the maternal grandmother is a headmistress. 2. The minor child has developed love and affection for the maternal grandparents and uncles. 3. The paternal grandparents were living in a rented house. 4. The compensation amount under certain land acquisition proceedings were deposited in the State Bank of India and the minors father was forced to issue a cheque for Rs.60,000 in favour of the paternal uncle and another cheque for Rs. 1,05,000 in favour of the paternal grandfather. Additional evidence was sought to be let in to prove that the compensation was paid in respect of joint family properties. 15. The above findings, in our opinion, have no bearing on the issue of entrusting the custody of the child to one or the other of the parties. We have now ascertained that the paternal uncle is actually residing in his own house and he is having a good automobile business. The child itself is being educated in a very good school and is happy in attending the said school. So far as the love and affection of the child is concerned, we have ascertained in person that the child is treating the paternal uncle and his wife as her parents for all purposes. A letter from the Headmistress of the school shows that the child is happy with her paternal uncle and his wife. It will really be a question of tearing away the child from the de facto guardian namely the paternal uncle and his wife. To us, it looks that it will be doing a great injustice to the child if she is to be suddenly taken away from the custody of the paternal uncle and his wife. So far as the question of compensation and the cheques are concerned there is nothing wrong in the minor childs father executing cheque in favour of his father and his brother because admittedly, the properties were joint family properties. On an overall consideration of the entire issue, and having the welfare of the child, in our mind, we are clearly of the opinion that the child should be allowed to continue with the paternal uncle and his wife, namely the 3rd appellant in L.P.A.No. 168 of 1993 and his wife. On an overall consideration of the entire issue, and having the welfare of the child, in our mind, we are clearly of the opinion that the child should be allowed to continue with the paternal uncle and his wife, namely the 3rd appellant in L.P.A.No. 168 of 1993 and his wife. For this purpose, we allow C.M.P.No.12819 of 1997 and accept the affidavits filed by the 3rd appellant and his wife. The 3rd appellant and his wife will have the custody of the child and act as guardians of the person and property of the minor child, subject to the following conditions. 1. They shall leave the child with the maternal grandparents namely, the respondents 1 and 2 in L.P.A.No. 168 of 1993, for 2 days during Pooja holidays, 2 days during Christmas holidays and for a period of 30 days during Summer holidays. The 3rd appellant in L.P.A.No.168 of 1993 shall take the child and leave the child with the respondents and bring back the child after the expiry of the period. 2. If there is any difficulty in leaving the child during these days, it will be open to the 3rd appellant in L.P.A.No. 168 of 1993 to seek the direction from the trial court. 3. If at any time the child expresses her desire to continue under the guardianship of the respondents, it will be open to the respondents to make an application to the trial court and seek orders in that regard. The L.P.A.No. 168 of 1993 is allowed to the above extent. L.P.A.No.89 of 1994 is ordered in the above terms. There will be no order as to costs.