Full Judgment
1. In this case the interests of the minor must be our first consideration, and we can have no doubt that the interests of the minor can only be protected and her life continue to be happy by maintaining her in the house where she was a child of nine months old. The position is that Abdul Bari had a son named Akhtar Husain. He married Mt. Habiba Bano, and he having died on 9th January 1920, Abdul Bari was guilty of some conduct, not exactly specified, towards Mt. Habiba Bano which made it necessary for her brother-in-law to interfere and apply to the Magistrate under Section 100, Criminal P.C. for an order for her protection. The evidence is that at that time Abdul Bari was proposing to marry Habiba Bano, the widow, to some undesirable parson. It appears that she had some property. Sayiduddin having obtained a warrant for her removal from the house of Abdul Bari, the warrant was executed and she came over to live with her sister who had married Sayiduddin. Later she married Fakhruddin the brother of Sayiduddin and he died in May 1925. Thereupon she married Sayiduddin, and she herself died on 13th January 1928. Throughout all this period the minor child, who is the subject of this litigation, had lived with her mother or with Sayiduddin and Fakhruddin. Immediately on the death of Habiba Bano, Abdul Bari became active. He has been made a guardian of the property of the minor and to that Sayiduddin offers no objection, but he strenuously resists Abdul Bari being made a guardian of the person of the minor on the ground that he, throughout the child's life, has stood in the position of a father to her, and further that this child, now of about nine years of age, herself wishes to remain with Sayiduddin, and there is the further grave objection that Abdul Bari is the legal heir of this child and would become the owner of her property in the event of her untimely death.
2. We think that these considerations are quite sufficient for us to reverse the decision of Mr. Hunter, who did not, in our opinion, sufficiently consider the circumstances under which Habiba Bano was forced to leave the house of Abdul Bari, nor the circumstances of the litigation which Habiba Bano and Abdul Bari had engaged in, nor the circumstances that this child can have no affection whatever for Abdul Bari, but has a life-long affection for Sayiduddin and the final circumstance that Abdul Bari is the legal heir of the minor. All these circumstances in our opinion make it desirable for us to order that the child do remain in the custody of Sayiduddin.
3. In view of the circumstance, which Mr. Mushtaq Ahmad has mentioned, that his client proposes to carry on litigation as against Sayiduddin, we deem it desirable to call the attention of the District Judge to this circumstance, and we order that Abdul Bari, as guardian of the property of this minor girl, shall furnish accounts to the District Judge at no longer interval than twelve months and that he is to provide either Rs. 1,000, in cash as security, or any other security in the sum of Rs. 1,000, so that if he indulges in reckless litigation the minor's estate is not to suffer.
4. We, therefore, set aside the decision of Mr. Hunter, and whilst declaring Abdul Bari to be the guardian of the property to the extent that we have mentioned, we order that the custody of the child do remain with Sayiduddin. We have no knowledge of the annual income of this property, and therefore we direct the District Judge to look into this matter and to summon the parties before him and to make such order as is in his opinion fair and proper for payment of the maintenance of the minor to Sayiduddin.
5. There appears to be Rs. 2,000, in cash and a sum of Rs. l000. dower-debt, although whether that item is actually an item in expectancy or not is not clear, but at all events if there is any considerable sum in cash, the District Judge will no doubt order it to be paid into Court and will invest it in Government securities.
6. The cross-objection is dismissed.
7. In the circumstances we make no order as to costs.