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2010 DIGILAW 1970 (ALL)

VINOD KUMARI v. DRAUPATI DEVI

2010-07-07

RAKESH TIWARI

body2010
JUDGMENT Hon’ble Rakesh Tiwari, J.—Heard learned counsel for the parties and perused the record. 2. This First Appeal From Order has been filed by appellant Smt. Vinod Kumari wife of late Jitendra Pal Singh resident of village Madara,Pargana and Tehsil Kol District Aligarh against the judgment and order dated 14.4.2010 passed by the Additional District Judge, Court No. 3 Aligarh in Misc. Case No. 58 of 2004, Smt. Draupati Devi v. Smt. Vinod Kumari. The aforesaid Misc. Case was allowed by the Court below appointing Smt. Draupati Devi wife of late Chandrapal Singh, the grand-mother of the two minor sons of late Jitendra Pal Singh namely, Madhupendra Pal Singh and Ankit Kumar as guardian on the application made by her under Section 8 of the Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as the Act). 3. Jitendra Pal Singh was father of Madhupendra Pal Singh and Ankit Kumar. He had earlier married with Smt. Chokhi from whom Madhupendra Pal Singh was born. After the death of her first wife Smt. Chokhi some where in the year 1994, Ankit Kumar was born out of the wedlock of Smt. Vinod Kumari with whom Jitendra Pal Singh performed second marriage. 4. It appears from the record that before his death Jitendra Pal Singh the father of the aforesaid two minor children being heart patient had executed an unregistered will on 13.5.1999 through public Notary with regard to his all moveable and immoveable properties in favour of both minor sons. By the aforesaid unregistered will Jitendra Pal Singh had appointed his mother Smt. Draupati Devi, opposite party as guardian of his aforesaid two minor sons. After the death of Jitendra Pal Singh an application under Section 8 of the Hindi Minority and Guardianship Act, 1956 was moved by Smt. Draupati his mother and the grand mother of the minor children that she may be appointed as guardian to look after the minors and also their property through will dated 13.5.1999 as the minors were under her care and custody and Smt. Vinod Kumari appellant is the step mother of Madhupendra Pal Singh aged about 12 years. The property was detailed at the foot of the aforesaid application filed by her under Section 8 of the Act. 5. The property was detailed at the foot of the aforesaid application filed by her under Section 8 of the Act. 5. Smt. Vinod Kumari, appellant filed her objection to the application under Section 8 of the Act, inter alia that Madhupendra Pal Singh was her step son and Ankit Kumar the other son (minor) has been born to her from out of wedlock with Jitendra Pal Singh. It was stated that after the death of Jitendra Pal Singh both the minor sons were living under her guardianship and she had been looking after them as well as their property without any interference of the applicant or any other person, the grand mother Smt. Draupati Devi. It was also stated that she is the natural guardian of her natural son Ankit Kumar and therefore, no other person can be appointed as guardian of two sons. The execution of will dated 13.5.1999 was also denied by her stating it to be a forged document prepared by the grand-mother after the death of her son Jitendra Pal Singh. According to her, Jitendra Pal Singh had no right to appoint his mother as guardian of the two minor sons to look after them and their property in preference to herself as she was natural guardian of her minor son Ankit Kumar. 6. The claim for guardianship of the minors as well as their property was contested by her on the ground that Smt. Draupati Devi the applicant had bad intention and she had been harassing her and her minor sons in collusion with the sister’s sons who are also residing in the same village. 7. After recording the statements of Smt. Draupati Devi on 18.4.2009 and Smt. Vinod Kumari on 4.2.2010, the Court below allowed the application of Smt. Draupati Devi, the mother of the two minors under Section 8 of the Act by order dated 14.5.2010. 8. The contention of learned counsel for the appellant is that the impugned order dated 14.5.2010 is against the statutory provisions of Section 8 of the Act and the Court below has not considered the case of the appellant. 9. In support of his submission learned counsel for the appellant has relied upon the decision Bakshi Ram Ladha Ram v. Mst. The contention of learned counsel for the appellant is that the impugned order dated 14.5.2010 is against the statutory provisions of Section 8 of the Act and the Court below has not considered the case of the appellant. 9. In support of his submission learned counsel for the appellant has relied upon the decision Bakshi Ram Ladha Ram v. Mst. Shila Devi, AIR 1960 (Punj) 304, as well as the judgment rendered by the Apex Court in AIR 1999 SC 1149 , Writ Petition (Civil) No. 489 of 1995 connected with Writ Petition No. (C) No. 1016 of 1991, Ms. Githa Hariharan and another v. Jayanata Bandhopadhyaya and another. 10. In the aforesaid backdrop prayer has been made for stay of the effect and operation of the impugned judgment and order dated 14.4.2010 impugned in the First Appeal From Order. 11. Before referring the ratio decided in the aforesaid two cases relied upon by the learned counsel for the appellant, the admitted facts may be noted; that the father of the two minor sons namely Madhupendra Pal Singh and Ankit Kumar whose custody was sought by the grand-mother Smt. Draupati Devi under Section 8 of the Act is late Jitendra Pal Singh ; that Madhupendra Pal Singh has been born out of wedlock of late Jitendra Pal Singh with Smt. Chokhi, his first wife ; and that Ankit Kumar has been born out of wedlock of Jitendra Pal Singh with appellant Vinod Kumari who is her natural mother only. 12. Section 8 of the Hindu Minority and Guadianship Act, 1956 provides the power of natural guardianship, subject to the provisions of the said section for the benefit of the minor or for the realization, protection or benefit of the minor’s estate. It further provides that the guardian can in no case bind the minor by a personal covenant. 13. Sub-Section (2) of Section 8 of the Act provides that the natural guardian shall not, without the previous permission of the Court— (a) mortgage or charge, or transfer by sale, gift, exchange or otherwise any part of the immoveable property of the minor; or (b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority. (3) Any disposal of immovable property by a natural guardian, contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or by any person claiming under him. (4) No Court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in the case of necessity or for an evidence advantage to the minor. (5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining permission of the Court under sub-section(2) in all respects as if it were an application for obtaining the permission of the Court under Section 29 of that Act, and in particular- (a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of Section 4A thereof; (b) the Court shall observe the procedure and have the powers specified in sub-sections (2),(3) and (4) of Section 31 of that Act: and (c) an appeal shall lie from an order of the Court refusing permission to the natural guardian to do any of the acts mentioned in sub-section (2) of this section to the Court to which appeals ordinarily lie from the decisions of that Court. (6) In this section “Court” means the civil Court or a district Court or a Court empowered under Section 4A of the Guardian and Wards Act,1890 (8 of 1890), within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such Court, means the Court within the local limits of whose jurisdiction any portion of the property is situate.” 14. The Act provides for following three types of guardians- (i) Natural guardian; (ii) testamentary guardian appointed under the Hindu Minority and Guardianship Act, 1960 and de facto guardian as provided under Section 11 who cannot deal with minors property. The word “guardian” has been defined under Section 4 (b) (ii) of the Act. “4(b) (ii) a guardian appointed by the will of the minor’s father or mother.” 15. The definition of natural guardian has been given in Section 4(b)(i) of the Act as “ natural guardian” means any of the guardian mentioned in it. 16. Section 9 of the Act provides for testamentary guardians and their powers. “4(b) (ii) a guardian appointed by the will of the minor’s father or mother.” 15. The definition of natural guardian has been given in Section 4(b)(i) of the Act as “ natural guardian” means any of the guardian mentioned in it. 16. Section 9 of the Act provides for testamentary guardians and their powers. Sub-section (1) of Section 9 reads thus : “ (1) A Hindu father entitled to act as the natural guardian of his minor legitimate children, may, by will, appoint a guardian for any of them in respect of the minor’s person or in respect of the minor’s property (other than the undivided interest referred in section 12) or in respect of both. (2) An appointment made under sub-section (1) shall have no effect if the father predeceases the mother, but shall revive if the mother dies without appointing by will, any person as guardian.” 17. After considering the oral and documentary evidence the Court has allowed the application of the opposite party Smt. Draupati Devi by appointing her as guardian of two minor sons of late Jitendra Pal Singh. Admittedly, the appellant is the step mother of Madhupendra Pal Singh though she may be natural guardian of Ankit Kumar, hence the appellant had no right to raise objection in respect of appointment of guardian with regard to Madhupendra Pal Singh as the appellant is not his natural mother as his natural guardian of minor Ankit Kumar only. The Court in the peculiar facts and circumstances has to see the paramount welfare of both the minor children as they are born out of the wedlock of late Jitendra Pal Singh with two different ladies. Therefore, appointment in the circumstances is like fitting of a shoe in feet of his different sizes. The grand mother being the only common factor whose genes have been inherited by the aforesaid two minors through the wedlock of her son Jitendra Pal Singh with two different ladies application under Section 8 read with Section 9 has to be given meaning to the will executed by the father. 18. The welfare of the minor sons can also to be looked into from another angle. Both of them are living with their grand mother. The dispute is only with regard to management of the property of late Jitendra Pal Singh. 18. The welfare of the minor sons can also to be looked into from another angle. Both of them are living with their grand mother. The dispute is only with regard to management of the property of late Jitendra Pal Singh. The grand-mother in whose custody the minor sons are living would be the appropriate person in the facts and circumstances of this case to have been appointed as guardian under Section 4(b)(ii) of the Act. 19. A perusal of definition of guardian in Section 4(b)(ii) shows that any person can be appointed by the father who is natural by way of will. It may be registered or unregistered. The Court after considering the welfare of the minors has passed the impugned order appointing the grand mother as guardian under Section 8 of the Act in consonance with the will with whom the minors are living who is looking after the welfare and managing their property on their behalf. Appellant is the natural mother of Ankit Kumar and not of Madhupendra Pal Singh of whom she was the step mother. The law cited by the learned counsel for the appellant in the circumstances is distinguishable on facts. It may also be noted that the age of Madhupendra Pal Singh was 12 years and that of other son Ankit Kumar was 8 years when Jitendra Pal Singh died. Now, Madhupendra Pal Singh is above 16 years of age and Ankit Kumar is above 12 years of age. In the peculiar facts and circumstances of this case, the Court below has rightly allowed the application of the grand-mother under Section 8 of the Act appointing her as guardian of the minor sons of Jitendra Pal Singh. 20. In so far as the case of Ms. Githa Hariharan and another v. Reserve Bank of India and another, AIR 1999 SC 1149 , is concerned, it was a case in the backdrop that where father and mother both were alive and in case father and mother of the minor had fallen out or living separately for over 20 years or where the father is not able to care for the minor then mother can act as natural guardian of minor in the absence of father. In the instant case, the facts are distinguishable. In the instant case, the facts are distinguishable. The father is not alive, therefore, mother could have been appointed as natural guardian of Ankit Kumar only in view of Section 9(2) of the Act had the will not been executed by the father the guardian of the minors as guardian. 21. For all the reasons stated above, the appeal is dismissed. No order as to costs. —————