Back
1973 Supreme(Gau) 1
GAUHATI HIGH COURT
BAHARUL ISLAM, J.
Syed Sadnur Ali -Appellant
Versus
Syeda Chandbanu Begum -Respondent
M. A. (F) No. 4 of 1971
Decided On : 12-01-1973
K. Majumdar, S. Ali
The welfare of the minor is the paramount consideration in appointing a guardian, and the court must consider all relevant factors in determining suitability.
Headnote:
GUARDIANS AND WARDS ACT - APPOINTMENT OF GUARDIAN - SECTION 17 - WELFARE OF MINOR - SUITABILITY OF GUARDIAN - INTERPRETATION AND APPLICATION.
Fact of the Case:
The appellant, the paternal grandfather of two minor children, filed an application under Section 47 of the Guardians and Wards Act, seeking appointment as their guardian. The respondent, the mother of the minors, opposed the application, alleging that the appellant was not a suitable person due to his large number of children by multiple wives and his alleged misappropriation of funds.
Finding of the Court:
The court found that the appellant was a suitable person to be appointed as the guardian of the minors. It held that the finding of the lower court that the appellant had misappropriated funds was based on inadmissible evidence and that the appellant's having multiple wives and children did not render him unsuitable for the role of guardian.
Issues: 1. Whether the appellant was a suitable person to be appointed as the guardian of the minors. 2. Whether the lower court's finding of misappropriation of funds was based on admissible evidence.
Ratio Decidendi: 1. In appointing a guardian, the court must consider the welfare of the minor and whether the proposed guardian is suitable. 2. Hearsay evidence is inadmissible and cannot be used to support a finding of fact. 3. Having multiple wives and children does not automatically render a person unsuitable for the role of guardian.
Final Decision: The appeal was allowed, and the appellant was appointed as the guardian of the persons and property of the two minor children.
This appeal under Section 47 of the Guardians and Wards Act, is directed against the order dated 29-9-70 passed by the District Judge, Gauhati, in Misc. (Guardianship) Case No. 5 of 1969.
2. The appellant was the petitioner. His case is that his eldest son, Syed Mahtab Hussain, died on 28-2-1968 leaving behind him the petitioner, his widow Syeda Chandbanu Begum (Respondent), two minor Children. Syed Nural Islam aged about 7 years and Sayeda Renu Begum aged about 4½ years and five brothers and four sisters. Deceased Mahtab Hussain was a teacher of an M. E. School and died leaving behind about 22B. 4K. 17 Lechas of land worth Rupees 7,300/-, an amount of Rs. 1015.64 paise in the Provident Fund Account, an amount of Rs. 528.37 paise in the Postal Savings Bank account, and an amount of Rupees 5,000/- in an Insurance Policy. The petitioners case is that after the death of his son, his daughter-in-law the respondent has left his home and is living in her fathers home with the two minor children. He alleges that for the proper maintenance and education of the two minor children and for proper management of their property, the appointment of a guardian of the persons and property of the two minor children is essential and that he is a most suitable person for such appointment under the Mahomedan Personal Law.
3. His application was resisted by the respondent on the ground, inter alia, that the petitioner has a large number of children by 3 wives, one of whom is dead, and that he was not a suitable person for the appointment.
4. The petitioner examined himself and three other witnesses and the objector examined herself and four other witnesses. The evidence shows that the respondent is a young woman of about 25 years and the petitioner is aged about 60 years. The petitioner admits that he had three wives, one of whom has died and that he has a number of children by (them, R.W. 2 - Sayed Farhaj Ali, P.W. 3 - Sayed Fayez Ali, and P.W. 4 - Ranjan Ali support the petitioners case and prove that the petitioner is a man of substance. In cross-examination it was suggested to P.W. 2 that the Government sanctioned Rs. 5,000/- to the daughter of the petitioner on the death of her husband in an explosion at Garbhanga, and that that amount was misappropriated by him, which suggestion was denied by the petitioner. The petitioner admits that he received only Rs. 900/-.
5. The learned District Judge, after consideration of the evidence of the witnesses, has rejected the application on two grounds - (i) he has found the petitioner not suitable as he misappropriated the abovementioned amount of Rs. 5,000/- granted by the Government as compensation. But this finding of the learned District Judge cannot be sustained as it is based on inadmissible evidence, namely, receipt of a sum of Rupees 5,000/-, which is not warranted by any record in the case but on hearsay; (ii) the other finding on which the learned District Judge has based his order, namely, that the petitioner was not a suitable person to look after the education of the children and the property belonging to them on the ground that he married three wives and has a number of children, is not sustainable because whether in addition to looking after his own children he is able to look after his minor grand-children and also to manage their property, depends upon his capability. The learned District Judge has not found that he is otherwise an unsuitable person.
6. In the appointment of a guardian the Court is to be satisfied that the appointment of the guardian is for the welfare of a minor and his person or property, or both. Section 17 of the Act provides that in appointing the guardian of a minor, the Court shall, subject to the provisions of this Section, be guided by what consistently with the personal law of the minor, appears in the circumstances to be for the welfare of the minor. And if the minor is old enough to form an intelligent preference, the Court may consider that preference; a
