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2016 DIGILAW 646 (KER)

Prathapan v. Aghileswary

2016-07-26

K.SURENDRA MOHAN, MARY JOSEPH

body2016
JUDGMENT : Mary Joseph, J. The order dated 20.10.2015 of the IIIrd Additional District Court, Kollam (for short 'the court') in O.P.(G&W) No.185/2013 is under challenge in this appeal. 2. O.P(G&W) No.185/2013 was filed by one Aghileswary S. as the petitioner before the court seeking for appointment of herself as the guardian of the person and the property of the ward viz., Bhagya and permission to utilise the income from the immovable property of the ward for her welfare. The court tried the case and the evidence on record consists of the uncontroverted testimony of the petitioner, as sworn to by her in the proof affidavit filed and the documentary evidence appended along with it as Exts.P1 to P4. On appreciation of the oral and the documentary evidence on record and after hearing the counsel representing the petitioner, the court allowed the original petition on 20.10.2015 in petitioner's favour on the following terms:- "(i) Declaring that the petitioner is the guardian to the person and property of the minor Bhagya aged 2 years, on the date of petition and allowed the custody of minor till attaining majority. (ii) The petitioner is allowed to take possession of A and B schedule property, generate income as a trustee and utilise its income for the welfare of the minor. (iii) The petitioner is directed to file accounts and status of the minor every three months. (iv) The Secretary, Yeroor Grama Panchayath is directed to intimate any information received in the Panchayath within 05.08.2028 if any, u/s 8 to 13 of Registration of Births and Deaths Act, 1969 relating to the petitioner before this court. (v) The Office is directed to serve a copy of this order to the Secretary, Yeroor Grama Panchayath through registered post with A/D card. 3. The respondent is aggrieved by the order and therefore, interference in exercise of appellate jurisdiction was sought. 4. Sri. Manu Ramachandran, the counsel for the appellant and Sri. G. Ajayakumar, the counsel for the respondent were heard on their rival contentions. 5. The first and foremost contention of the learned counsel for the appellant was that the order under challenge in this appeal was passed by the court below on an improper appreciation of the law, the facts and the evidence of this case. G. Ajayakumar, the counsel for the respondent were heard on their rival contentions. 5. The first and foremost contention of the learned counsel for the appellant was that the order under challenge in this appeal was passed by the court below on an improper appreciation of the law, the facts and the evidence of this case. According to him, though the appellant had preferred a counter claim in the original petition, the court below did not consider the same. The court below failed to frame issues based on that, relevant for adjudication in the original petition. According to him, the ward was under the care and protection of the appellant and family since her early childhood and therefore, she has become adapted to the congenial circumstances in his house. It is contended that the ward, never, was under the care and protection of the respondent and the non-acquaintance of the latter with any of the particulars of the ward, more specifically her date of birth, fortifies such a contention. According to him, had the court below appreciated the evidence in its proper perspective, the impugned order ought not to have been passed. According to him, the mother of the ward from her deathbed had entrusted the ward to him and ever since then he was keeping her custody in conditions favourable to her. He had gone to the extent of interrupting the attempt of the father of the ward to dispose of the property belonging to her by instituting O.S.No.311/2012 solely out of his concern for her and to protect her interests. The counsel also attempted to apprise the court of the fact that the original petition seeking appointment as guardian was filed by the respondent only after the death of the father of the ward and it can only be considered as a measure aimed at getting control over the property that has devolved upon the ward, after the death of her father. 6. Raising the contentions as above, the counsel pleaded that the court below has gone patently wrong in passing the order under challenge, in appointing the respondent as the guardian of the ward. 7. Sri. 6. Raising the contentions as above, the counsel pleaded that the court below has gone patently wrong in passing the order under challenge, in appointing the respondent as the guardian of the ward. 7. Sri. G. Ajayakumar advanced arguments to the effect that, though the ward was with the appellant, when the respondent realised that she was not taken proper care of and her welfare was out of concern for the appellant that she had approached the court with the original petition. According to him, the appellant being a drunkard, his family life was a thorough failure and the factum is evident from Exts.P1 to P4, the records pertaining to C.C.No.1314/2007, a criminal case registered at the instance of the appellant's wife under Section 498A I.P.C. According to him, the court below had appreciated the documentary evidence and found in the right perspective that the appellant having proven to be disloyal to his own family, is a person totally ineligible for acting as the guardian of the ward and accordingly, passed the impugned order in favour of the respondent. According to him, the respondent's family status and financial stability was also taken note of as factors relevant by the court while passing an order appointing her as guardian. 8. Both counsel were heard at length on their rival contentions. The impugned order is also perused in the backdrop of the grounds raised by the appellant in the appeal memorandum while canvassing for a reversal of the order. 9. The evidence which formed the basis for the court below's finding in favour of the respondent was her chief affidavit as PW1 and Exts.P1 to P4 produced and marked from her side. PW1 had sworn to the facts which prompted her to file the original petition as the lack of care and concern of the appellant for the child and his inability on account of the criminal case existing against him and the insecurity in his family. 10. The court below placed much emphasis upon Exts.P1 to P4 to draw a conclusion that the respondent is a man of criminal antecedent and strained marital relationship. Ext.P1 is the certified copy of the F.I.R registered based on a complaint of the wife of the appellant under Section 498A of the Indian Penal Code (for short 'the IPC'). 10. The court below placed much emphasis upon Exts.P1 to P4 to draw a conclusion that the respondent is a man of criminal antecedent and strained marital relationship. Ext.P1 is the certified copy of the F.I.R registered based on a complaint of the wife of the appellant under Section 498A of the Indian Penal Code (for short 'the IPC'). Ext.P2 is the copy of the charge sheet laid by the Police after investigation based on Ext.P1. Exts.P3 and P4 are certified copies of depositions respectively of the wife and the daughter of the appellant and indisputably the witnesses have spoken matters involving seriousness. The court below based on Exts.P1 to P4, reached the conclusion that the appellant is incapacitated to maintain relationship with his family on account of his drunkenness and illtreatment towards them. The learned counsel for the appellant invited our attention to the deposition of PW3, the daughter of the appellant in her further cross-examination on 25.10.2010 in C.C.No.1314/2007 to apprise us that the disputes among the rival parties to the said case had been resolved amicably and they are now staying together under a single roof. Therefore, indisputably, the appellant had restarted his family life peacefully and harmoniously towards the end of 2010. There is no dispute with regard to the fact that the father of the ward died in the year 2012 and ever since then the ward was residing with the appellant. The court below had not adverted to the said aspect while passing the impugned order. 11. The further contention projected by the learned counsel for the appellant was with respect to the inadvertence of the court below to the counter claim filed by the appellant in the original petition, in its proper perspective. A reading of paragraph 6 of the impugned order would convincingly support the argument of the counsel that the counter claim was discarded by the court below. The reasons for which it was discarded are discussed in paragraph 6 of the impugned order, which is extracted herein below:- "6. The respondent has filed a counter claim and pray for appointment of him as guardian and the said prayer is not at all legally sustainable, since this is not a suit and Order 6, Rule 6A as such not applicable in this limited jurisdiction. Apart from that the respondent has not proved his competency to look after the ward. The respondent has filed a counter claim and pray for appointment of him as guardian and the said prayer is not at all legally sustainable, since this is not a suit and Order 6, Rule 6A as such not applicable in this limited jurisdiction. Apart from that the respondent has not proved his competency to look after the ward. He is a man of having criminal background and not a fit person to be appointed as guardian of a girl child. On the above said grounds, the counter claim is liable to be dismissed." 12. The court below has observed in the impugned order that since the original petition filed seeking appointment as Guardian, being not a suit, Order 8, Rule 6A of the Civil Procedure Code (for short 'C.P.C.') (misquoted by the court below in the impugned order as Order 6, Rule 6A) as such will not sustain. The said observation of the court below in our view is perfectly erroneous. In this connection, it is appropriate to have a look at Order 8, Rule 6A C.P.C. and it is extracted herein below:- "6A. Counter-claim by defendant.- (1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not: Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court." 13. It is true, in sub-rule(1) of Rule 6A Order 8, the word referred is 'suit'. Sub-rule(4) of Rule 6A provides that the counter claim shall be treated as a plaint and governed by the rules applicable to the plaints. Even though the word specifically used in Rule 6A is 'suit', the reliefs sought through other forms before a court of law are not excluded. The provision does not say that it is inapplicable to original petitions or other forms of claims. Even though the word specifically used in Rule 6A is 'suit', the reliefs sought through other forms before a court of law are not excluded. The provision does not say that it is inapplicable to original petitions or other forms of claims. Therefore, the conclusion drawn by the court below that the counter claim is inapplicable to proceedings initiated in the form of an original petition seeking appointment as guardian on the reason that it was not filed as a suit will not sustain. 14. It may be noted that the Guardians and Wards Act, 1890 (for short 'the Act'), was enacted in order to secure and safeguard the interest of the minor. It is a beneficial legislation and liberal interpretation has to be given in order to advance the object of the 'Act', and intention of the Legislature. Section 10 of the 'Act' lays down that the application shall be made in the form and in the manner enumerated therein. Section 17 of the 'Act' lays down the matters which are to be considered by the court in appointing guardian. By the said section, it has been in substance provided that the Court, while appointing the guardian shall be guided by what appears in the circumstances to be for the welfare of the minor and in considering what will be 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 deceased parent and, any existing or previous relations of the proposed guardian with the minor or his property. It has also been provided that if the minor is old enough to form an intelligent preference, the Court may consider that preference. It is also provided that a person shall not be appointed as Guardian of the minor against his will. It is also manifest that the Court under Section 11(a)(iv) in order to discharge the said obligation effectually can issue notice to any other person to whom in its opinion, special notice of the application should be given. Persons interested in the minor are allowed to file applications for the purpose of regulating the conduct of the proceedings to obtain specific orders regarding the minor. Persons interested in the minor are allowed to file applications for the purpose of regulating the conduct of the proceedings to obtain specific orders regarding the minor. It has further been held therein that if a person satisfactorily makes out that he is a person, who is interested in the welfare of the child, the Court should not ordinarily hesitate and allow him to go on record as a party in order to render useful assistance to the Court and in properly discharging heavy obligation placed on the Court under the 'Act'. It has further been observed that in such cases, the rigid rules which are ordinarily followed in ordinary litigation have necessarily to be relaxed. It has been laid down in the above case that a person, who bona fide comes to the Court to oppose the application or along with it prays that he himself be appointed as guardian or seeks custody of the child, should be permitted to do so. It is clear that the appellant is the maternal uncle of the ward, with whom she is residing almost immediately after the death of her mother. In the circumstances, he is obviously a person closely related to the minor and therefore a person interested in her welfare. He was therefore entitled to raise the plea as he did. No technical objection in the prayer made by him could be raised because the appointment of guardian of a minor is to be considered in the perspective of his or her ultimate and best welfare. In doing so, the District court can consider a prayer even made by the respondent and can allow the same, if it considers it proper to do so, in view of the various considerations enumerated in the 'Act'. Accordingly, the objection that the respondent, not having filed an application under Section 10 of the 'Act' his prayer for appointment as guardian of the minor, could not have been allowed, does not deserve to be accepted. 15. In view of the above discussion, the observation of the court below that the respondent in an original petition filed seeking for appointment of a guardian has no right to prefer a counter claim, it not being a suit, will not sustain. 15. In view of the above discussion, the observation of the court below that the respondent in an original petition filed seeking for appointment of a guardian has no right to prefer a counter claim, it not being a suit, will not sustain. There is as such no bar in the C.P.C. against raising of counter claim in an original petition seeking for appointment of a guardian for the ward. If the objection to an original petition seeking appointment of a guardian to a ward is filed repelling the averments therein and incorporating a prayer to grant custody in his favour by a person closely related to the ward, there is no harm in treating it as a separate petition filed under Section 10 of the Act for the purpose and for trying both conjointly, since there is no bar against entertaining it. The counter claim will definitely partake the character of a petition filed by the respondent under the relevant provision of the Act providing for appointment of a guardian for a ward. Therefore, the court below has erred in observing that Rule 6A Order 8 is inapplicable while exercising jurisdiction of a limited nature seeking for the appointment of guardian for a ward. 16. In view of the discussions herein above made, we are of the firm view that the impugned order was passed by the court below without adverting to the relevant aspects as aforesaid. Indisputably, the respondent has not participated in the proceedings in O.P.(G&W) No.185 of 2013 and on the reason, could not cross-examine PW1 based on the facts sworn to by him in his proof affidavit. Indisputably, the documentary evidence let in as Exts.P1 to P4 also were unchallenged. The court below was constrained to pass an order based on the unchallenged version of PW1 and the documentary evidence let in as Exts.P1 to P4. It is pertinent to note that in that eventuality, the court below was prevented from elucidating the real factual situation. The welfare of the ward is of paramount consideration and the circumstances congenial to the growth of the person of the ward and protection of his property could only be secured when both parties were available and partake their role in the proceedings. In the case on hand, evidently the appellant was not available during the course of the proceedings and therefore, did not contest the case. In the case on hand, evidently the appellant was not available during the course of the proceedings and therefore, did not contest the case. The court below was constrained in the said circumstances to pass the impugned order on the basis of the sole evidence let in by the petitioner therein, who is the respondent herein. 17. In our view, the court below as well as the parties to the original petition have to be provided with another opportunity and that could only be served by remitting the matter for reconsideration after setting aside the impugned order. 18. In the result, this M.F.A.(G&W) is allowed on the following terms:- 1. The impugned order dated 20.10.2015 is set aside. 2. The parties to this appeal are directed to appear before the court below on 30th August, 2016. 3. The court below shall also consider the counter claim raised by the respondent along with the original petition, jointly. 4. The court below shall afford reasonable opportunity to both the parties to adduce evidence on their side. 5. The court below shall dispose of the original petition, at any rate, within a period of four months from the date of receipt of a copy of this judgment.