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2004 DIGILAW 526 (BOM)

Shabana Mustaque Naik v. NR

2004-04-21

ANOOP V.MOHTA

body2004
JUDGMENT - MOHTA ANOOP V., J.:---Heard Shri Asif I.I. Patel for the petitioner. 2. The present petition is under section 17 of the Guardianship and Ward Act, 1980, for appointment of guardian of the minors namely (1) Ms. Tahreem Mustaque Naik and (2) Ms. Firdos Mustaque Naik and for the claim in respect of gratuity and death cum service gratuity payable to the above named minors, i.e. Rs. 16,395. Each aggregating to Rs. 32,790/- from and by the Brihan Mumbai Municipal Corporation, Mumbai of a Mustaque Adam Naik, deceased husband, of the petitioner. 3. The petitioner (Muslim) is a natural mother of the minors and therefore, after the death of deceased Mustaque Adam is the natural guardian in all respect and for all the purposes. The petitioners husband Mustaq Adam expired on 6th July, 2003. The employer of the deceased has paid all the dues of said Mustaque Adam to the petitioner, except the gratuity and death cum Service Gratuity which is payable to the above named minors. The petitioner therefore, had approached for the aforesaid Gratuity and Death cum service Gratuity to the Brihan Mumbai Municipal Corporation. However, they insisted for guardianship certificate from the Competent Court for the disbursement of the same. 4. The petitioner, therefore, being the natural guardian and natural mother prayed that gratuity amount be accordingly disbursed. One cannot over look the day to day affairs and expenses of the said minors, living with the petitioner. There is no direct adverse of conflicting interest. The said minors are residing with the natural guardian, and are being properly educated by the petitioner, after the death of deceased husband. The responsibility of the maintenance, education by the mother cannot be over looked. There are no other guardian or claim of anybody in respect of person and property of the said minors. There are no other heirs except the petitioner and therefore, the Court has already dispensed with the notice under section 11 of the Guardian and Wards Act by order dated 9th March, 2004. 5. Having regard to the scheme and purpose of the sections 7 and 10 of the Act and as welfare of the two minors referred above is prime and paramount consideration to appoint guardian as prayed. Apex Court has held in A.I.R. 1987 S.C. 3 (Mrs. 5. Having regard to the scheme and purpose of the sections 7 and 10 of the Act and as welfare of the two minors referred above is prime and paramount consideration to appoint guardian as prayed. Apex Court has held in A.I.R. 1987 S.C. 3 (Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and another)1, that predominant factor to be considered is welfare of the minor, while exercising Courts power to appoint a guardian. In this case all the related ingredients of sections 7, 10, 11, 17 of the Act have been complied with substantially. In view of the facts and circumstances, referred above, it is necessary to pass order without further delay in the interest of justice. 6. Mr. Asif I.I. Patel appearing for the petitioner has filed affidavit dated 29th March, 2004 and placed on record subsequent development, as the petitioner has received another letter from the Competent Authority, Brihan Mumbai Municipal Corporation, thereby, it has been informed to the petitioner that it is necessary to have the guardianship certificate in respect of the Provident Fund amount of Rs. 81,410/- payable to the minors. In view of the above facts, and to avoid further delay this affidavit is taken on record, including the averments made therein. Considering the nature of deed of natural guardian, there is no reason to postpond the petition for this purpose. Therefore, there is no harm in passing the order of allowing the petition in terms of prayer Clauses (a), (b), (c), (d) and (e) with liberty. 7. In addition to this, the Brihan Mumbai Municipal Corporation is also directed to release the provident fund amount of Rs. 81,410/- payable to the minors in question to the natural guardian as prayed in the additional affidavit. 8. Therefore, with this the Brihan Mumbai Municipal Corporation shall deposit Rs. 32,790/- towards the gratuity amount and Rs. 81,410/- towards provident fund amount with the office of Account Officer, High Court, Bombay, as prayed. 9. In view of this, the petition is disposed of. 10. Parties concerned including B.M.C., Mumbai. as well as Account Officer, High Court, Bombay to act on a simple copy of this order, duly authenticated by the Court Stenographer/Chamber Registrar of this Court. Petition allowed. -----