Judgment 1. Appellant Gian Chand was married to respondent No. 1 Sudha. Respondent No. 2 Des Raj is father of respondent No. 1. Appellant had filed a petition under the Guardian and Wards Act (hereinafter referred to as the Act) for the custody of Rajiv Kumar, who is the son of the appellant and respondent No. 1. It may be mentioned that appellant and respondent No. 1 were divorced by decree under Sec. 13 of the Hindu Marriage Act in short HMA) on 12-12-1984. The petition for custody of the minor was dismissed and hence this appeal is filed by the appellant against the said order. It may also be mentioned that a minor was born out of the wed-lock of the appellant and respondent No. 1 on 5-2-1983. The lower Court held that the appellant is not interested in custody of the minor. Various reasons have been given by the lower Court in dismissing the application. 2. I have heard the learned counsel for the parties. It is an admitted fact that respondent No. 1 has re-married after the divorce with appellant. It is the case of the appellant that husband of respondent No. 1 Mr. Kamal Khanna is working at Amritsar and that respondent No. 1 is also staying at Amritsar and has nothing to do with the welfare of the minor . He has also tried to show the place of residence by service of the summons which is at page 107 of the lower Court record and it is served on respondent No. 1 at Amritsar. He has produced a copy of the translated version of the same at Ex. A1 in the same appeal. Counsel for respondent No. 1 argued that summons were served when she had gone to Amritsar during vacations. The question is not merely of physical possession. It is a question of guardianship and if the minor is being looked after under the instructions/supervision of the mother then even though he may not be in the physical custody of the mother, he cannot be said to be not under the guardianship of the mother. Of course, this is not the only reason for not accepting the arguments of the learned counsel for the appellant. In a given case, such a reason may assume importance but in view of the further discussion regarding the age of the minor, this question has become academic. Of course, this is not the only reason for not accepting the arguments of the learned counsel for the appellant. In a given case, such a reason may assume importance but in view of the further discussion regarding the age of the minor, this question has become academic. 3. Counsel for the appellant argued that appellant has been non suited on the following grounds, viz. :- (i) Separation of the minor from the mother will be shock to the minor.(ii) Earlier petition was dismissed.(iii) Appellant has not sent maintenance; and(iv) Earlier compromise. 4. The learned counsel for the appellant has shown various authorities to show that earlier dismissal of such petitions will not act as res judicata. This by itself appears to be no reason to dismiss this petition. However, the question is of the welfare of the minor and if the welfare is to be seen, the Court has also to see that the minor is not subjected to a cruel shock. I shall deal with this point later on. However, it can be seen that there is a compormise Ex. R-1 between the parties dated 10-11-1990. It has been decided by the parties that they will not file any case (against each other).This may not by itself bar a party from filing a case under the Act. However, this argument is after divorce which at least go to show that there was consent of the appellant to keep the minor with respondent No. 1 at that time. Again, this may not be the question finally determining the question of guardianship. However, it is ward in the circumstances that can be considered. 5. Most important circumstance is regarding welfare of the minor and whether the petition has to be allowed considering the welfare or the welfare will be better with the respondent. I had questioned the minor Rajiv on 14-1-2000. He had stated that he is about 17 years old. He further stated that he is studying in Govt. Senior Secondary School at Ludhiana and he is knowing about the case which is going on and it is regarding his guardianship, i.e. custody. He also stated that he wants to stay with his mother and does not want to go with his father. 6. The boy admittedly is of 17 years old and he will be completing 18 years in the year 2001. He also stated that he wants to stay with his mother and does not want to go with his father. 6. The boy admittedly is of 17 years old and he will be completing 18 years in the year 2001. The question is whether at the fag end of hsi minority, his custody should be changed only because some party has better right? It has to be seen that question of custody of minor is completely different from the question of custody of a property. A minor cannot be considered as a chattel. When a minor, who is of 17 years old states that he does not want to go with his father, forcing him to go with his father, will be a harsh treatment to the minor, as after one year when he completes the age of majority, he cannot be so compelled. 7. Mr. Khullar has cited before me the case of Babu Ram V/s. Keshwa Chand Joshi, reported in AIR 1978 Pun and Har 174. It has been held in it that the natural guardian should be given preference if his appointment is not found to be against the welfare of the minor, or unless he is found to be unfit and that preference of the minor, if he is sufficiently old, should be given due weight. It has been further held therein that the only and the paramout consideration regarding appointment of a guardian is the welfare of the minor. In that case the minor was aged 14 years and he expressed emphatically before the Court that he wanted to live with his maternal grandparents and not his father. It has been also held therein that there was a justifiable apprehension that the minor, if forced to part with the company of the grandparents, may become the victim of a terrible emotional upset, and parting of the minor from them after 14 years was likely to give rise to numerous complications. 8. Mr. Bawa has also cited before me the case of Ainunnisan V/s. Mukhtar Ahmad, reported in AIR 1975 All 67. It has been considered therein also, that the welfare of the minor is important and legal guardianship is not material. 8. Mr. Bawa has also cited before me the case of Ainunnisan V/s. Mukhtar Ahmad, reported in AIR 1975 All 67. It has been considered therein also, that the welfare of the minor is important and legal guardianship is not material. In that case it was also held that when the mother has re -married, the father can file an application under Sec. 25 of the Act and claim custody on the ground of the remarriage and is not required to wait till the minor attains the age of 18 years. 9. This judgment will not be applicable to the present case because of the special circumstances of the case when the minor is about to become a major. 10. Various other authorities have also been cited by Mr. Khullar. In view of the above position, I do not want to go on discussing the same. 11. Counsel for the appellant argued that the minor is not allowed to see the appellant and, therefore, the minor will not say that he will like to go with the appellant. However, when the minor is of this "advanced" age. I do not think that he can be forced by anybody for not meeting his father. This being the position, I do not find any reason to interfere with the orders passed by the Courts below. 12. As a result, this appeal is devoid of any merit and is dismissed.Appeal dismissed.