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2001 DIGILAW 153 (GAU)

Laheswari Das v. Gopinath Das

2001-05-28

D.BISWAS

body2001
This appeal is directed against the judgment dated 28.8.97 passed by the learned District Court, Kamrup, Guwahati in GC Case No. 374 of 1996 and GC Case No. 3 8 of 1996. The learned District Court by the impugned judgment appointed the respondent Sri Gopinath Das as the guardian of Jagjiban Das, a minor, who lost his parents practically before he saw the light of the day. Being aggrieved by the aforesaid judgment, the appellant (the grand mother i.e. mother's mother of the minor) has preferred this appeal. 2. I have heard Mr. BK Goswami, learned senior Counsel assisted by Ms. T Goswami, learned counsel for the appellant and also Mr. S. Baruah, learned counsel for the respondent. 3. At the very outset, I would like to clear the facts for better appreciation of the controversy at hand. Biren Das, father of the minor Jagjiban Das, died in a scooter accident on 30.9.94. He left behind his wife who was on family way. She delivered a male child on 7.12.94 named Jagjiban. The mother of the child Indira Das also died after giving birth to Jagjiban and, since then, the minor has been residing with the grandmother Smti Laheswari Das, the appellant herein. 4. We may recapitulate herein brief the provisions of law relating to the appointment of guardian of a minor. It would appear from section 8 of the Guardians and Wards Act, 1890, in short the Act, that an order for appointment of a guardian could be made only in an application filed by the person desirous of being, or claiming to be, the guardian of the minor, or any relative or friend of the minor, or the Collector of the district. In the instant case, the claim has been made by the respondent who is the elder brother of the deceased Biren Das and Smti Laheswari Das, the maternal grandmother of the minor. They do not suffer from any disqualification and both of them are eligible for consideration for appointment as guardian of the minor. 5. Section 17 of the Act provides for the matters to be considered by the Court while passing orders on appointment of a guardian. It reads as follows : "17. They do not suffer from any disqualification and both of them are eligible for consideration for appointment as guardian of the minor. 5. Section 17 of the Act provides for the matters to be considered by the Court while passing orders on appointment of a guardian. It reads as follows : "17. Matters to be considered by the Court in appointing guardian: (1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. (2) In considering what will be for the welfare of the minor, the court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any,, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. (3) If minor is old enough to form an intelligent preference, the Court may consider that preference. (5) The Court shall not appoint or declare any person to be a guardian against his will." 6. It would appear from sub-section (1) and sub-section (2) of section 17 quoted above that it is the welfare of the child which is of paramount consideration in the matter of appointment of the guardian of a minor. Mr. BK Goswami, learned senior counsel argued that although the respondent is the brother of the father of the minor and closely related to the minor in comparison to the grandmother, yet the materials available on record with regard to the welfare of the child do not permit the respondent to be given the responsibility of being the guardian. Mr. Goswami argued that the appellant is getting a family pension of Rs. 1,500 per month and besides she owns landed properties left by her husband and one of her son is also an Engineer and they are taking care of the minor to the maximum extent possible with profound love and affection as a child should get. Mr. Goswami, also pointed out that the respondent filed an application under section 372 of the Indian Succession Act for grant of a Succession Certificate in respect of a sum of Rs. Mr. Goswami, also pointed out that the respondent filed an application under section 372 of the Indian Succession Act for grant of a Succession Certificate in respect of a sum of Rs. 4,85,219.00 which became payable on the death of Biren Das. In that petition the respondent has claimed for issue of Succession Certificate in his name so that he could withdraw the money to liquidate a debt of Rs. 3,47,960 left by the deceased. According to Mr. Goswami, the details of the loan amount given has to be read as design to deprive the minor of the money left by his father. 7. It is the settled law that a Court while disposing of an application for appointment of the guardian of a minor has to attach utmost importance to the welfare aspect of the child. Welfare being the prime consideration has an edge r over relationship. A close relative may not always be the protector of a minor. If the circumstances create doubt as to his sincerity, such a relative may not be the best choice despite preferential right as per law applicable, 8. In the case of Thrity Hoshie Dolikuka vs. Hoshiam Shavaksha Dolikuka reported in AIR 1982 SC 1276 the Supreme Court held that in a matter concerning a minor the Court has to consider and decide the same from the point of view of the welfare and interest of the minor. The Supreme Court further held that the Court has a special responsibility and it is the duty of the Court to consider the welfare of the minor and to protect his interest. According to the Supreme Court, home influence plays a very important role in shaping the life of a minor child. When the atmosphere in a house is vitiated and rendered , surcharged with tension, the health and normal growth of the child is bund to be seriously affected. In that judgment the Supreme Court gave importance to the degree of love and affection that a child deserves apart from the factum of affluence. Following the aforesaid judgment, this Court in the case of Mrs Archana Barthakur vs. Dr. Ranjit Barthakur, (1984) 2 GLR 1 rendered as similar verdict to give the minor child to the mother where welfare of the child was the prime consideration. Following the aforesaid judgment, this Court in the case of Mrs Archana Barthakur vs. Dr. Ranjit Barthakur, (1984) 2 GLR 1 rendered as similar verdict to give the minor child to the mother where welfare of the child was the prime consideration. The Supreme Court in the case of Jaiprakash Khadaria vs. Shyam Sundar Agarwalla.& others reported in 2000 (1) GLT (SC) 10 (2000 (1) GLJ 219) also dealt with the aspect of love and affection and the atmosphere in the family where the child is to live. 'Welfare' has been consistently held to be the final say in the matter of selection of guardian. 9. If we read the ratio available in the aforesaid judgments along with the materials on record, it would be difficult to conclude that the respondent from the paternal side has to be given preferential treatment since they are governed by the Hindu Law. There is no denial to the claim that the minor from the moment of his birth has been in the house of his maternal grandmother and till date he is there. There maternal grandmother is aged 53 years only and there is nothing to show that she is physically incapable in looking after the child. She is also getting family pension besides having income from landed properties. One of her son is also an Engineer and it is at his instance an insurance policy in the name of the boy has been also taken for a sum of Rs. 50,000. Mr. Goswami learned counsel made statement at the Bar that neither the appellant nor any member of her family is interested in the money or the property of the minor child. On instructions from the appellant, Mr. Goswami submitted that the amount due to the minor may be kept in long term fixed deposit enabling the minor to withdraw the same on attaining majority. 10. As against tills, the respondent, in my opinion, does not stand anywhere. Till date he has not made any attempt to obtain the custody of the minor. Rather he has filed an application for his appointment as the guardian and a petition for issue of a Succession Certificate in respect of the property of the minor in his favour only though the minor alone is entitled to the same. Till date he has not made any attempt to obtain the custody of the minor. Rather he has filed an application for his appointment as the guardian and a petition for issue of a Succession Certificate in respect of the property of the minor in his favour only though the minor alone is entitled to the same. The respondent also made it clear in his petition (Annexure 1) that he wanted to withdraw the amount to liquidate the debt of his deceased brother. The description of the credits given in the petition on the face of it create doubt. This is one side of the picture. On the other hand, there is nothing on record to show who are the other members of family of the respondent. He has his family consisting of the wife and children. The Court is not aware of the atmosphere/environment in the house of the respondent. This aspect has not been considered by the learned District Court. Would it be congenial enough for healthy growth of the child ? May be the respondent is a man of means, but that does not alone satisfy the requirement of law. The conduct/design manifest in the application for issue of a Succession Certificate, do not inspire this Court to conclude that under the given circumstances, the respondent would be the better choice. 11. In the result, the appeal is allowed and the impugned judgment dated 28.8.97 passed in GC Case No. 374/1995 and GC Case No. 38/1996 are hereby set aside. The petition filed by the appellant i.e. petition No. 38/1996 is hereby allowed and she is appointed as the guardian of the minor. The petition No. 3 747 1995 filed by the respondent is hereby rejected. It is further ordered that in the event the Succession Certificate is issued in favour of the minor on an application that may be filed by the appellant as guardian, the amount received on behalf of the minor shall be kept in FOR in any nationalised Bank or may be invested in any Govt of India guaranteed certificate like NS C/KBP, minus the amount payable to the Bank against any loan taken by the deceased father to be drawn by the minor on attaining majority.