Hassan Bhat v. Ghulam Mohamad Bhat .

1. This is an appeal against an order of the Sub-Judge, Anantnag, appointing the respondent as a guardian of the minor Mst. Rashida. Before the learned Sub-Judge Anantnag, the paternal uncle of the minor who is the appellant here and the maternal uncle who is the respondent applied for being appointed as her guardian. The learned Sub-Judge, by a well-reasoned judgment and after considering all the aspects of the matter, particularly the welfare of the minor, rejected the application of the appellant and appointed the respondent as a guardian of the minor. The learned Sub-Judge was of the view that there was a direct conflict of interest between the appellant and the minor and it would not be safe under these circumstances, to leave the minor or her property in the hands of the appellant. It is conceded before us also that there is a conflict of interest between the appellant and the minor and in fact the appellant has already set up a deed of adoption by which his own son has been adopted by the father of the minor and under which one half of the property has been given to his son. It is, however, contended by Mr. Bhan that according to the Mohammadan Law which is to govern the minor in the case, the paternal uncle should be a guardian in preference to the maternal uncle, therefore, the court below is bound to appoint the guardian according to the Personal law, even though such an appointment may be against the interest of the minor.

2. In our opinion this contention cannot be accepted. Section 17 of the Guardians and Wards Act clearly lays down that although a court should be guided in appointing a guardian by the personal law of the minor yet the consideration of the welfare of the minor should be the paramount consideration.

3. Section 17 sub-section (1) of the Guardians and Wards Act runs as follows:

“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.”

4. Sub-section (2) of S. 17 of the same Act reads as under:

“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 him 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.”

5. Sub-section (2) of S. 17, above, mentions the competency of a guardian to be appointed and it lays down the tests to determine the welfare of a minor and one of the tests indicated in this section is the character and the capacity of the proposed guardian. Sub-section (1) above, no doubt, provides that the Court is to be guided by personal law but the words “subject to the provisions of this section” clearly indicate that the consideration of the welfare of the minor should be the paramount factor and cannot be subordinated to the personal law of the minor. We are fortified in our view by Division Bench decisions of several High Courts. To begin with there is a Division Bench authority of Patna High Court. Bhola Nath…Opposite Party v. Sharda Devi…Applicant-., AIR 1954 Pat 489, wherein their Lord ships relying on a number of authorities held that the paramount consideration in appointing a guardian is the question of the welfare of the minor. To the same effect are the decisions reported in Samuel Stephen Richard… v. Stella Richard…., (S) AIR 1955 Mad 451; Mohammad Saddiq v. Wafati, AIR 1948 Oudh 51, as also Ram Prasad v. Dist. Judge, Gorakhpur, 57 Ind Cas 651 : (AIR 1920 All 89).

6. Mr. Bhan, however, relied on an authority of the Allahabad High Court, Mt. Kundan Begam v. Mt. Aisha Begam, AIR 1939 All 15. But we find that the facts of that case are quite different from the facts of the present case.

7. In that case it appears that the mother who had been appointed as a guardian suffered from a positive disqualification under the Mohammadan Law and their Lordships held that in view of such a disqualification she could not be appointed as a guardian. Moreover, in that case we find that there was a serious question involved whether in fact the minor had attained majority and their Lordships held that the minor had in fact attained majority in view of the medical evidence. In these circumstances, in our opinion, this case does not help the learned counsel for the appellant. We have also ourselves held in an unreported case, Civil 1st Misc. Appeal No. 55 of 1959, Bilu Ram v. Nanak Chand on 15-2-1960 (J. and K.), that the paramount consideration in appointing a guardian of the minor should be the welfare of the minor and where a court finds that the interests of the minor cannot be looked after properly by a person being a preferential guardian under the personal law, he cannot be appointed a guardian under the Guardians and Wards Act.

8. Lastly, it was submitted that the girl wants to remain with her paternal uncle. We have examined the girl for Ourselves and we find that the girl is not old enough to form an intelligent opinion as to the suitability of her guardian, and in these circumstances, we cannot take this factor into consideration. The respondent happens to be a Headmaster and is married, whereas the appellant is a widower and in this view of the matter, the girl would be better looked after under the care of the respondent.

9. For the reasons given above, there is no merit in this appeal, which is dismissed but without any order as to costs.

10. J.N Wazir, C.J:— I agree.

ID/D.R.R

11. Appeal dismissed.