Judgment:
A.R. Lakshmanan, J.
1. A.A.O. No. 994 of 1992 is against the order of the District Judge of Kanyakumari, dated 13.10.1992 in O.P. No. 26 of 1991. The respondents in O.P. No. 26 of 1991 are the appellants in this appeal. A.A.O. No. 1139 of 1992 is preferred against the order of the District Judge of Kanyakumari, dated 13.10.1992 in O.P. No. 66 of 1991. The sole petitioner in O.P. No. 66 of 1991 is the appellant in the second appeal. The 1st appellant A. Sahadevan Pillai is the husband of the 2nd appellant Bhagavathi Ammal and father of the 3rd appellant Krishna Kumar. The 1st respondent is the wife of the 2nd respondent. The respondents herein are the petitioners in O.P. No. 26 of 1991 and respondents in O.P. No. 66 of 1991. Both the petitions have been disposed of by the learned District Judge by a common order dated 13.10.1992, evidence having been recorded in O.P. No. 26 of 1991 the parties are referred to herein as they are arrayed in A.A.O. No. 994 of 1992.
2. The short point that arises for consideration in these two appeals is, as to who is entitled to and who is the fit and proper person to be appointed as the guardian for the person and property of minor Aiswarya, who unfortunately lost both the parents in a short interval of about two weeks. The respondents are the maternal grand - parents of the minor Aiswarya, who is the daughter of Padmakumar (son of the appellants 1 and 2) and Indumathi (daughter of the respondents). The maternal grandparents filed O.P. No. 26 of 1991 for appointing themselves as the guardian of the person and properties of the minor. The paternal grand-father/1st appellant filed O.P. No. 66 of 1991 for the same relief. In the petition filed by the maternal grand-parents in O.P. No. 26 of 1991, both the paternal grand-parents and one paternal uncle were made as party respondents besides two banks. The learned District Judge passed a common order on 13.10.1992 allowing O.P. No. 26 of 1991 filed by the maternal grand-parents and dismissing O.P. No. 66 of 1991 filed by the paternal grandfather. By the impugned order, the learned District Judge has appointed the maternal grand-mother/1st respondent herein as the guardian of the person and property of the minor inclusive of her share in the joint family properties. Hence these two appeals by the paternal grand-parents and paternal uncle of the minor.
3. The findings of the learned District Judge are as follows:
(i) The petitioners in O.P. No. 26 of 1991/re-spondents herein have 'Vasathi'.
(ii) The question as to in whose custody the child was between 2.2. 1991 and 17:2.1991 is not germane.
(iii) There was cordial relationship between the parents of the minor on the one hand and the respondents herein on the other.
(iv) Doubt arises as to whether the 1st appellant has financial capacity to maintain the minor.
(v) The 1st appellant is aged 67 and hence his version that lie would be able to maintain, educate and get the minor married is not acceptable.
(vi) Since the 1st appellant had given monies from out of the land compensation amount to the 3rd appellant and his daughters, his version that he would look after the welfare of the minor is not believable.
(vii) The 1st appellant resides with the 3rd appellant at Nagercoil in a rented house. Hence, he is not fit to be the guardian.
(viii) Gift deed Ex. B-1 was executed on the morning of 16.2.1991, on which date Padmakumar (father of the minor) died. Hence, it has been executed with an oblique motive.
In view of these findings, the learned District Judge has appointed the 1st respondent herein as the guardian and has rejected the claim of the paternal grand-father/1st appellant.
4. Before considering the evidence, it is necessary to set out the law on the point. Section 4(1) of the Hindu Minority and Guardianship Act (hereinafter referred to as the Act) defines the 'guardian' as 'a person having the care of the person of a minor or of his property or both of his person and property and as including, (1) a natural guardian, (2) a guardian appointed by a Will of the minor's father or mother; (3) the guardian appointed or declared by court; and (4) a person empowered to act as such by or under any enactment relating to any court of Wards.' Sub-clause (c) of Section 4 of the Act defines 'natural guardian' as meaning 'any of the guardians mentioned in Section 6 of the said Act.' Section 6 of the Act, inter alia, provides that the natural guardian of a Hindu minor in respect of minor's person as well as property, is the father and after him, the mother, in the case of a boy or of an unmarried girl. Section 2 of the Act provides that the provisions thereof shall be in addition to and not in derogation of the Guardian and Wards Act, 1890. It will be seen from the above that this Act does not specifically provide as to who shall be the guardian in the event of both the parents being dead.
5. The position before the commencement of the Act was as follows:
In Mayne's Hindu Law, 12th Edition, paragraph 24 at page 461, regarding guardianship it has been stated thus:The Hindu Law vests the guardianship of the minor in the Sovereign, a parens patria. Necessarily, this duty is delegated to the child's relations. Of these, the father and next the mother is its natural guardian, unless the father has already appointed anybody else as guardian. In default of the mother, or if she is unfit to exercise the trust, the nearest male kinsman should be appointed, the paternal kindred having preference over the maternal.
In support of this, the decision of the Bombay High Court reported in In re Gulbai andLeelabai, I.L.R. 32 Bom. 50, has been cited.
6. In Mulla's Hindu Law, 16th Edition, paragraph 518 at page 536 relating to guardianship of a person and in support of a minor, it has been stated as follows:
(1) The father is the natural guardian of the person and of the separate property of his minor children and next to him, the mother, unless the father has, by his Will, appointed any person as the guardian of the person of his children.
(2) No relation, except the parents, is entitled, as of right, to be the guardianship of minor. Failing the father and mother, the court may appoint a nearest male paternal kinsman and failing paternal kinsman nearest male maternal kinsman as guardian of the minor, but the court is not bound to do so. It may appoint a maternal relation in preference to a paternal relation or it may even appoint a stranger if the welfare of the minor requires it.
Here also, the decision of the Bombay High Court reported in In re. Gulbai and Leelabai I.L.R. 32 Bom. 50, has been cited.
7. In N.R. Raghavachari's Hindu Law, 8th Edition, para. 183 at page 157 it has been staled that guardians are of four kinds and they are (1) Natural guardian; (2) Testamentary guardian; (3) Court guardians; and (4) De facto guardians. It is useful to reproduce paragraph 184 from that book:
The natural guardian is the one who, by virtue of his or her relationship to the child has a claim to be his/her guardian. The father's right to be the guardian of the person and property of the minor is paramount and comes first. Under the Hindu Law nobody else other than the father and the mother of the minor is entitled as a matter of natural right to be and to act as the guardian of a minor's person and property. Where there is no such natural person alive, recourse must be had to the court, as representing the rights of the King for the appointment of a guardian.
At page 1025 of the same book it has been stated that a Hindu child is looked upon not only as belonging to the parents but as belonging also to the family of which the parents are members.
8. In the decision reported in In re. Gulbai and Leelabai I.L.R. 32 Bom. 50, both the parents of the two minor girls had died. The contest was between the maternal grand-mother on the one hand and the paternal uncle of the father of the minors and paternal aunt (father's sister) on the other. The son of the maternal grand-mother was an Accountant General. The court appointed the paternal relations as the guardian. In doing so, the court observed as follows:
The minors are Hindus and according to Hindu Law in the case of minors who have lost both the parents, the nearest male kinsman should be appointed, the paternal kinsman having the preference over the maternal (See Mayne's Hindu Law, 7th Edition, page 273, Section 211).
This decision was rendered on 25.7.1907 and reliance has been placed upon the passage occurring in Mayne's Hindu Law, 7lh Edition, which was much earlier.
9. It will be seen from the above that in the case of a minor, whose parents are both dead, the court has to appoint a guardian and in such a situation, the paternal relations are to be preferred to the maternal relations. While in the Bombay case, paternal relations were the paternal aunt of the minors and the paternal grand-uncle of the minors, in this case, the paternal relation who wants to be appointed as guardian is the paternal grandfather himself.
10. In the decision reported in Rajaiah v. Dhanapal and Anr. (1985) 1 M.L.J. 97, it has been pointed out at page 100 as follows:
Section 6 of Act 32 of 1956 (Hindu Minority and Guardianship Act) does not make any substantial alteration in the law on the subject and gives legislative sanction to the principle well established already.
Power is conferred on the court to appoint a guardian under Section 7 of the Guardian and Wards Act, 1890. Section 17(1) of the said Act provides that in appointing or declaring the guardian of the minor, the court shall be guided by what appears in the circumstances of the case to be for the welfare of the minor consistently with the law to which the minor is the subject. Thus, the court is mandated to take into consideration the provisions of the personal law applicable to the minor in the matter of appointing guardians.
11. It is submitted on behalf of the appellants by Mr. S.P. Subramaniam, that the personal law provides, as stated above, that in the absence of both the parents, the court has to appoint a guardian, preference being given to paternal relations. Hence, unless paternal relations are found to be disqualified and unfit to be appointed as guardians, either of the person or of the property of the minor, their undoubted preferential right cannot and should not be denied. Therefore, Mr. S.P. Subramaniam, would submit that unless it is shown in the instant case that the 1st appellant is unfit to be the guardian, his preferential right to be the guardian of his son's daughter in preference to the maternal grandmother/1st respondent cannot at all be denied. According to Mr. S.P. Subramaniam, the learned District Judge has not considered this aspect all. He has repeated a number of times that the paramount consideration is the welfare of the minor, which is no doubt true. But then, unless it is established that such paramount consideration of the welfare of the minor shows that the 1st appellant could not be appointed as guardian, his preferential right should not have been rejected. This is the gist of the arguments of Mr. S.P. Subramaniam, learned Counsel for the appellants.
12. Mr. K. Alagiriswami, learned Senior Counsel appearing for the respondents/maternal grandparents would submit that it is settled law that in deciding the question of guardianship of a minor, the paramount consideration would be the welfare of the minor. The legal right alone is not the criterion. No straight jacket formula could be adopted for deciding the issue. The court will have to take into consideration the over-all circumstances appearing in evidence, the financial status of the parents, their educational qualification, the position held by them, interest evinced by them in the welfare of the minor, the place of their residence, the proximity to good educational institutions, the willingness of their spouse and family members for bringing up the child and other such relevant circumstances conducive for the physical and mental development of the child and proper up-bringing.
13. According to Mr. K. Alagiriswami, the court below after taking into consideration all the facts and circumstances of the case, has rightly come to the conclusion that the maternal grand-mother/1st respondent is the fit and proper person to be appointed as guardian of the person and the property of the minor. According to the learned Senior Counsel, it is clear from the evidence that the maternal grand-father/2nd respondent is an educated man and had held the post of Tahsildar. Similarly, the maternal grand-mother/1st respondent, who has studied upto M.A., M.Ed., is a Headmistress in the Govt. High School of the locality. They are in affluent circumstances and have evinced keen interest in the welfare of the minor. They live in Thuckalay where there are a number of educational institutions for educating the minor. Thuckalay is the headquarters of Kalkulam Taluk. The maternal grand-mother/1st respondent in her evidence has clearly stated that she would be in a position to educate the minor child being in the teaching line herself. It would be conducive to the menial development of the child and proper education of the child if the child is left in the custody of the maternal grand-parents, since they are educated and are in affluent circumstances.
14. Mr. K.A. Alagiriswami, learned Senior Counsel would then submit that both the maternal grand-parents have been examined in court and they have clearly stated that they arc anxious to have the custody of the child since the minor happens to be the only child of their only daughter. It is a common knowledge that the maternal grand-parents exhibit more affection and bestow more attention to the up-bringing of the minor than the paternal grand-parents. Besides, the maternal grand-parents, two maternal uncles have also been examined in the court below and they have given evidence supporting the petition. In other words, according to the learned Senior Counsel, not only the maternal grand-mother but also the maternal grand-father and two of the maternal uncles had been examined in this case and they have supported the case of the maternal grand-mother. From the evidence it appears that the minor had developed love and affection for one of the maternal uncles. At the time when the maternal uncle was studying in Bangalore R.V. College of Engineering, the parents of the minor were staying with him and at that time, he had close contact with the minor and the minor had also developed affection towards him. It is also stated in evidence that whenever the minor's parents visit their home town, they leave the minor in the custody of the maternal grand-parents.
15. It is also clear from the evidence on record that after the death of the mother of the minor at Bangalore, the father of the minor brought the child and left her in the custody of the 1st respondent herein requesting her to take case of the child. Though this was denied by the appellants, clinching documents have been filed to prove that the respondents had the custody of the minor between 2.2.1991 and 17.2.1991, on which day the minor was taken to the 1st appellant's place under the pretext of offering floral tribute to the mortal remains of the deceased father of the minor, promising to send back the minor to the custody of the respondents/maternal grand-parents. On the contrary, only the 1st appellant had filed a petition seeking to be appointed as guardian of the minor. The2nd appellant/paternal grand-mother has not been examined to show that she is also willing to assist her husband in bringing up the minor. None of the sons of the 1st appellant has been examined. It would be clearly seen from the evidence of the 1st appellant that he has no interest in bringing up the minor with the assistance of his wife, but he intends to hand over the custody of the child to one of his sons who is issueless. Neither his son nor his son's wife had been examined nor have they filed any affidavit before court expressing their willingness to bring up the child.
16. Mr. S.P. Subramaniam, learned Counsel for the appellants, invited my attention to the findings of the court below to state that the 1st appellant is not disqualified to be appointed as guardian. According to the learned Counsel, there is no attack of the 1st appellant's character in O.P. No. 26 of 1991 filed by the respondents herein or in the counter in O.P. No. 66 of 1991, nor is it staled therein that the minor was not treated properly by the 1st appellant and the members of his family or that they are not affectionate towards her. He also invited my attention to the findings of the learned District Judge oh the aspect of the alleged indebtedness of the 1st appellant, which, according to the learned Counsel for the appellants, is very vague and bereft of details. It has also been categorically denied in the counter affidavit in O.P. No. 26 of 1991 (filed by the 1st appellant). Thus, according to the learned Counsel, the pleading in respect of this matter is not definite and firm but only vague and bereft of details.
17. Mr. S.P. Subramaniam, learned Counsel, then refers to another allegation viz., that the father of P.W. 2 had given the 1st appellant Rs. 91,000 at the time of marriage of Indu with Padmakumar, with a direction to invest the same in Indu's name but he did not do so. This allegation is found in the pleadings in O.P. No. 26 of 1991, which has been denied in the counter by the 1st appellant. It is mentioned there that only Rs. 10,000 was given as per the custom of the community for meeting the expenses for bridegroom's dress and the said amount was utilised for that purpose. He also refers to the evidence of P.W. 2 and R.W. 1 in this regard. In this state of evidence, the learned Counsel for the appellants would submit that the allegation that Rs. 91,000 was given to the 1st appellant at the time of marriage of Indu with Padmakumar for the purpose of investing it in the name of Indu but the 1st appellant failed to do so is absolutely incorrect.
18. Next, Mr. S.P. Subramaniam refers lo the disbursement of land acquisition compensation amount. According to him, the lands had been registered in the name of Padmakumar. Hence, the compensation amount cheque had been drawn in his name. He deposited it in the Stale Bank of India, Thuckalay on 11.2.1991. On 12.2.1991, a cheque for Rs. 60,000 was issued in favour of the 3rd appellant and another cheque for Rs. 1,05,000 was issued in favour of the 1st appellant by Padmakumar, which were duly encashed. It is seen from the averments in para. 9 of O.P. No. 26 of 1991, that the lands belong to Padmakumar and he was stripped of all his assets and that the said amount is due to the minor. He also refers to the evidence of P.Ws. 1 and 2 in this connection.
19. C.M.P. No. 18063 of 1992 has now been filed under Order 41, Rule 27, C.P.C., read with Order 43, Rule 2, C.P.C., by the appellants for receiving the registration copies of the two sale deeds relating to the lands acquired as additional evidence. One sale deed is dated 21.9.1974 under which 25 cents of land bearing S. No. 110/16 in Manavalakurichi village was purchased for Rs. 5,250 from one Donakias Bakthidas. In this, Padmakumar, the Vendee, is described as minor aged 17. Another sale deed is dated 8.6.1981 by and under which 82 1/2 cents in S. No. 110/6 in Manavalakurichi Village was purchased for Rs. 10,000 from one Sashikala. In this, the age of Padmakumar, the vendee, is given as 24 and he is described as agriculturist. In the affidavit sworn to by the 1st appellant in support of this petition he has categorically stated that the above mentioned lands were purchased by him with his funds and the lands belonged to the joint family and that the original sale deeds were handed over to P.W. 2, that registration copies had been obtained in July, 1991, but had been misplaced and hence were not produced in the trial court.
20. Mr. S.P. Subramaniam would submit that from the above documents it is plain that Padmakumar could not have purchased these lands with his funds. He was a minor aged 17 at the time of purchase under the sale deed dated 21.9.1974 and was aged 24 and unemployed at the time of purchase under the sale deed dated 8.6.1981 and described as agriculturist. According to the learned Counsel, it is not the case of the respondents that Padmakumar had other funds of his own. Therefore, he would submit, that the evidence is clear that these lands belonged lo the family, though the purchase had been made in the name of Padmakumar. Similarly, the 1st appellant had also purchased lands in the name of his other sons 3rd appellant and one Vivekanandan. He has stated so in his evidence. Therefore, the learned Counsel for the appellants would submit that the compensation amount also belonged only lo the joint family. The 1st appellant, the father and Kartha, had lire right to make distribution of this amount in an equitable manner amongst his sons and daughters. Padmakumar could not have questioned this and did not, in fact, question this. It is, therefore, submitted that it is incorrect to say that by reason of this, appellants 1 and 3 have become indebted to the minor and therefore, they are not qualified to be the guardians of the minor.
21. Mr. S.P. Subramaniam, learned Counsel for the appellants, then refers to the affluence of the maternal grand-parents/respondents herein. The learned District Judge has recorded a finding, as already stated, that the 2nd respondent is employed as Tahsildar and the 1st respondent is employed as Headmistess, they arc persons of means. The learned District Judge, according to Mr. S.P. Subramaniam, has not staled that the 1st appellant is not possessed of means. There is no averment in O.P. No. 26 of 1991 that since the respondents herein are affluent persons, the first of them should be appointed as guardian. Nor is there any such averment in the counter in O.P. No. 66 of 1991. On the other hand, the 1st appellant has alleged in paragraph 9 in O.P. No. 66 of 1991, that he is in good circumstances having an income of about Rs. 30,000 a year and is the proper person to be appointed as the guardian. This is the argument of Mr. S.P. Subramaniam on the above aspect. He also drew my attention to the evidence of P.Ws. 1 and 2 on this aspect. The learned, counsel for the appellants contended that the learned District Judge has erred in thinking that the 1st respondent has to be appointed as guardian in preference to the 1st appellant on the ground that she was more affluent, which itself has not been established.
22. Referring to the aspect of old age and alleged sickness of the 1st appellant, Mr. S.P. Subramaniam invited my attention to the finding of the learned District Judge, who has remarked that on account of his age, the 1st appellant's claim that he would be able to maintain and protect the minor does not appear to be acceptable. According to the learned Counsel, there is no averment in the petition in O.P. No. 26 of 1991, that the 1st appellant is old and sickly and therefore is disqualified to be the guardian. In this connection, he refers to the evidence of P.W. 1, who does not speak about this at all. P.W. 2 also does not speak about this aspect. They have not stated that on account of the old age, the 1st appellant will not be able to maintain and protect the minor. The 1st appellant, who was examined as R.W. 1, has stated in cross-examination that he was aged 67. It is not correct to state that he was suffering from disbetes. He was not having any disease and that he could hear properly.
23. As regards the paternal grand-mother/2nd appellant, according to the learned Counsel for the appellants, there is absolutely no evidence regarding her alleged sickness. Referring to the aspect in regard to the residence of the 1st appellant, the learned District Judge has observed that since the 1st appellant has deposed that he was residing at that lime with his son, the 3rd appellant in the house, taken on lease by the latter in Nagercoil, he was not in a position to protect and look after the welfare of the minor. This finding, according to the learned Counsel for the appellants, is absolutely wrong and uncalled for. The 1st appellant as R.W. 1 has denied this suggestion in cross-examination that the minor child was under the protection of the 3rd appellant. He has further stated that he was living with the child at that time in the 3rd appellant's house at Nagercoil. According to Mr. S.P. Subramaniam, it has been brought about in evidence that excepting the 1st respondent, there is no other lady in her house, her mother having died long ago. The 1st respondent is employed as an Headmistress in a school and therefore, will not be available to look after the minor during the school hours. None of her three sons is married. P.W. 1 has stated so in her evidence. On the other hand, in the 1st appellant's house, his wife viz., the 2nd appellant/paternal grand-mother of the minor, is available. The averment that she is a sickly woman has not been proved. P.Ws. 1 and 2 have not spoken about this at all in their evidence. Besides, both the 3rd appellant and Vivekanandan, the sons of appellants 1 and 2, are married. Therefore, it is incorrect to say that there is no female capable of taking care of the child in the house of the 1st appellant.
24. On the other hand, according to the learned Counsel for the appellants, there is no female except the 1st respondent to lake care of the minor in her house. Undoubtedly, the 2nd appellant would be able to bestow more attention and care on the minor than the 1st respondent in view of the latter's employment and pre-occupation as a school Headmistress. In this connection, Mr. S.P. Subramaniam, pointed out that the 2nd appellant has executed a settlement deed Ex. B-1 in favour of the minor settling upon her lands worth about rupees One lakh. The observation of the learned District Judge that this settlement has been made with an oblique motive, according to the learned Counsel for the appellants, is, to say the least, most uncharitable.
25. Regarding the jewels, according to the learned Counsel for the appellants, the 1st appellant has not stated anything in chief-examination about this. No suggestion has been put to him in cross-examination that Padmakumar entrusted the jewels of his wife Indu to the 1st appellant and that the 1st appellant is in possession of the same. Thus, the plea that the 1st appellant is in possession of the jewels has not been made out. This is a false averment and this shows the attitude of the respondents herein.
26. I have carefully considered the averments of the learned Counsel for the appellants and the various aspects of the matter projected by the learned Counsel for the appellants, and also the arguments of Mr. K. Alagiriswami, learned Senior Counsel for the respondents, which I have referred to in paragraphs supra.
27. It is the admitted case of the 1st appellant that he was doing coir business and that he stopped that business. He has also admitted that he has no appreciable bank balance. He has no other independent source of income. Though he states that he owns 6 acres of coconut tope, he has suppressed the fact that it is a joint family property. The other three sons, who are all married, will be having a share in the property. Hence, it is crystal clear that the 1st appellant is a man of no appreciable means. Though he claims that he gets an income of Rs. 30,000 per year from the joint family property, no evidence has been produced to substantiate the same.
28. The place of residence of the paternal grandparents is Kottumangalam Village, which is about ten miles from Nagercoil and about 8 miles from Thuckalay. Kottumangalam is a small hamlet and there are no schools in that village. The nearest primary school is about 1 1/2 miles away from Kottumangalam. This school has been recently started. The paternal uncle viz., the 3rd appellant is residing at Nagercoil in a rented house. It appears from the evidence, that the 1st appellant is living with the 3rd appellant. As already stated, the intention of the 1st appellant appears to be that the minor should be brought up by the 3rd appellant, the paternal uncle of the child. No evidence has been adduced to show the financial status and the educational qualification of the 3rd appellant, though he has stated that he is having a spare parts shop at Nagercoil. His wife has not been examined to show that she is willing to bring up the minor child.
29. It is also clear from the evidence that the 3rd appellant and the father of the minor were not in good terms. As a matter of fact, the 1st respondent has categorically stated in her evidence as P.W. 1, that the deceased father of the minor never used to visit his brother the 3rd appellant whenever he came to Nagercoil. Similarly, P.W. 2 has categorically stated that the deceased father of the minor and the 3rd appellant were not in talking terms since more than six months before the marriage of the father of the minor. Nothing has been elicited in the cross-examination. P.W. 2 has reiterated in the cross-examination that the strained relationship between the deceased father of the minor and the 3rd appellant made a futile attempt to get the deceased father of the minor married to some other close relation.
30. It is, therefore, submitted by Mr. K. Alagiriswami, learned Senior Counsel, that the 1st appellant is not a fit and proper person to be entrusted with the custody of the minor. As already stated, he is not a man of any means. Admittedly, he is not doing any business or having any appreciable bank balance. His main intention is only to give away the minor to his son the 3rd appellant, who has no issues. Neither the 3rd appellant nor his wife has been examined to show their willingness to bring up the minor child. There is absolutely no evidence to show the financial condition of the 3rd appellant. Secondly, none of the paternal grandparents are educated. There is no evidence to show the educational qualification of the 3rd appellant. Assuming that the minor child is intended to be brought up either by appellants 1 and 2 or by their issueless son, there is no evidence to show that they would provide congenial atmosphere for the up-bringing of the minor. For one thing, they seem to be residing in two places and the 2nd appellant is not living with the issue-less son, but she is staying in her native place, viz., Kottumangalam.
31. The other aspect which is to be looked into is the age of the rival parties. Admittedly, the 1st appellant is aged about 70 years and his wife/2nd appellant is equally old. On the contrary, the respondents are young and active. The minor child is only four or five years and it will not be conducive for the welfare of the minor to be left in the custody of such old people. The 2nd appellant is a presumptive heir to the property of the minor. It is settled law that while considering the appointment of a guardian, this fact should be taken into consideration and as far as possible, the presumptive heir should not be given the custody of the minor. There is also apprehension in the minds of the respondents that the father of the minor died in suspicious circumstances. It is in evidence that he died at 5.00 p.m., and the body was cremated at 7.00 p.m., on the same day, within two hours. The respondents were informed only after the cremation. On the day when the father of the minor died, he took leave of the respondent. At that time, he was hale and healthy. There seems to be some bickering in the family which would be evident from the fact that the land standing in the name of the deceased father of the minor was acquired and when compensation was paid out in the name of the father of the minor, he was asked to part with big chunk of the money in favour of his brothers and sisters besides his father. All these happened just five days prior to the death of the father of the minor. Further, if really he had died of heart attack, as alleged, no evidence has been let in to show that he was given proper treatment or that any attempt was made to take him to the hospital. The only evidence adduced is to the effect that one Dr. Rajan has opined that the lather of the minor died of heart attack.
32. There are also suspicious circumstances surrounding the execution of the gift deed, on the same day when the father of the minor died. There is some contradiction in the evidence with regard to the time of the execution of the document. There is good reason to believe that this document has been executed to cover up the situation after the death of the fat her of the minor and to make it appear that everything was well within the family. Stamp paper for the same has been purchased on different dates and from different places. Though the value of the properties is slated to be rupees one lakh, the document shows the value at Rs. 27,000. A mere look at the document would convince this Court that it is a make-believe affair and it is a sham and nominal document. The deed was executed in favour of the deceased father of the minor as guardian representing the minor on the same day in which he died. It is natural on the part of anybody to expect that he would have presented the document for registration. What circumstances create is cloudy suspicion in the minds of the respondents that all is not well with the family of the appellants. As a matter of fact, the court below has held so in para.15 of the judgment. In the personal law of the parties, there is no custom that the minor child should be protected only by the paternal grand-parents. This Court has held in the decision reported in Narasayya v. Venkatappa A.I.R. 1923 Mad. 359, that the personal law of the parties can be ignored in the interest of the welfare of the minor, which should be paramount consideration, even assuming that there is any such custom.
33. Even the passages referred by Mr. S.P. Subramaniam, learned Counsel for the appellants, in Mayne's Hindu Law, Mulla's Hindu Law and N.R. Raghavachari's Hindu Law, only state that the father is the natural guardian of the person and of the separate properly of his minor children and next to him, the mother, unless the father has, by his Will, appointed any person as the guardian of the person of his children. No relation, except the parents, is entitled, as of right, to be the guardian of the minor. Failing the father and mother, the court may appoint a nearest male paternal kinsman and failing paternal kinsman, nearest male maternal kinsman as guardian of the minor, but the court is not bound to do so. The court may appoint a maternal relation in preference to a paternal relation or it may even appoint a stranger if the welfare of the minor requires it.
34. It is clear from the evidence that the 2nd respondenty is an educated man and had held the post of Tahsildar. Similarly, the 1st respondent is working as Headmistress in the Government High School of the locality. They are in very affluent circumstances and have evinced keen interest in the welfare of the minor. They live in Thuckalay, where there are a number of educational institutions for educating the minor. Thuckalay is the headquarters of Kalkulam Taluk. The 1st respondent in her evidence has clearly stated that she would be in a position to educate the minor child, being in the teaching line herself. It will be very conducive to the mental development of the minor and to the proper education of the child if the child is left in the custody of the respondents since they are educated and are in affluent circumstances.
Further, both the respondents have been examined in court and they have clearly slated that they are anxious to have the custody of the child since the minor child happens to be the only child of their only daughter.
35. I am very much impressed with the evidence tendered by the maternal grand-parents/respondents herein. The interest of the minor will be very much protected and safeguarded if I agree with the finding of the learned District Judge appointing the 1st respondent herein as the guardian of the person and property of the minor Aiswarya, which, in my opinion, alone is the paramount consideration. Though very many decisions have been cited by the learned Senior Counsel for the respondents, I do not think that there is any quarrel over the well-settled propositions.
36. In the instant case, there is a dispute between the maternal side and the paternal side. In such a dispute, the court is expected to strike a just and proper balance between the requirements of the welfare of the minor and the rights of the respective parties over the minor. As held by S. Nainar Sundaram, J. (as he then was) in the decision reported in Rajaiah v. Dhanapal (1985) 1 M.L.J. 97, the sole consideration both in the case of guardianship and custody of the minor should be the welfare of the minor and the court is bound to take into consideration all the facts and circumstances of the case bearing in mind that the pivotal factor is the benefit and well-being of the minor. That the dominant factor for consideration of the court is the welfare of the child, has found statutory footing both in Section 17(1) of Act 8 of 1890 and Section 13 of Act 32 of 1956. Both the provisions emphasise that the powers of the court arc to be exercised for the welfare of the minor, which should be the paramount consideration. I have also taken similar views in several other matters like this.
37. The Supreme Court in the decision reported in Dr. Veena Kapoor v. Varinder Kumar Kapoor : AIR1982SC792 , held that in deciding matters concerning custody of the minor children, main consideration of the court must be welfare of the minor and not legal right of a particular party. In an identical matter like this, N.S. Ramaswami, J. in R. Santhakumari v. S. Natarajan : (1973)2MLJ286 , held that through the maother was a school teacher, who would be obliged to leave the residence for her work, that docs not mean that she would not be in a position to look after the child properly. In the decision reported in Narasayya v. Venkatappa A.I.R. 1923 Mad. 359, this Court has observed that in case of claims of distant relations, there is no question of preference other than what arises from a consideration of the minor's welfare, which is made the paramount consideration. V. Ratnam, J. in the decision reported in Suresh Babu v. Madhu alias Kanchan : AIR1984Mad186 , has held as follows:
It is not merely the rights of parties with reference to custody that have to be considered and adjudicated upon, but what is most essential is that any such adjudication should be for the welfare of the infant child.
38. Hence, lam of the view that no valid reason has been given for accepting the case of the preferential right of the 1st appellant to be appointed as the guardian of the person and property of the minor. The learned District Judge, in my view, has not erred in appointing the 1st respondent herein as the guardian of the person and property of the minor. In my opinion, there is no justification on the part of the 1st appellant to ask for the custody of the minor child.
39. For the foregoing reasons, both the civil miscellaneous appels are dismissed. However, taking into consideration the relationship of the parties, there will be no order as to costs. The interim stay granted in C.M.P. No. 14788 of 1992 is vacated. Time for delivery custody of the minor child Aiswarya to the respondents, two weeks from to-day. However, it is made clear that the 1st appellant and his family members are always at liberty to see the minor child whenever they want. It is also made clear that they can take the minor to their home on festive occasions and during holidays by obtaining orders from the trial court.