Hon’ble Amitava Lala, J.—This appeal arises out of judgment and order dated 16th July, 2007 passed by Additional District Judge, Bijnor in Original Misc. Suit No. 43 of 2003 under Section 7 of the Guardians and Wards Act, 1890. The appeal is heard at the stage of admission on informal papers by the consent of the parties since no other material is necessary for such hearing. In the Court below, an application was made by the grand father of the child for the purpose of keeping minor child Nitin Kumar aged about 12 years in his custody. Nitin Kumar is son of one Mr. Ashok Kumar, since deceased and Smt. Savita Devi, respondent No. 1 herein. Mr. Ashok Kumar was an army man and expired in Kargil War. By the death Smt. Savita Devi, mother of the child got compensation of a sum of Rs. 30.00 lakhs. Out of the said sum, she deposited a sum of Rs. 10.00 lakhs in a nationalised Bank in the name of her minor child for his benefit. Out of balance Rs. 20.00 lakhs, Rs. 9.00 lakhs was deposited in the same nationalised Bank at Feena, District Bijnor in her name. It has been recorded by the Court below that remaining Rs. 11.00 lakhs was forcibly recovered by the plaintiff-appellant from the respondent No. 1, the mother of the child, to construct ‘Pakka’ house in the village, to contest gram panchayat election and in consumption of alcohol. He physically tortured and misbehaved with the respondent No. 1, the mother of the child. He also wanted to make illicit connection with her. He further wanted to give re-marriage to her with his cousin Mr. Raju, who already has two children. She refused to accept the proposal.

2. The minor boy was examined in the open Court and in presence of the parties like a major but no independent and confidential assessment was made by the concerned judge about wishes of the minor and feasibility. Upon going through the deposition it does not seem that it is an independent deposition but tutored. The boy has stated that presently he is staying with grand father and grand mother and wants to stay with them. In other place, he stated that he is staying with his uncle and studying in Sena Medium Public School at Delhi. His uncle is resident of Dakshini Puri, Delhi where the grand father and grand mother are not staying. According to us, if the first statement is considered to be correct then there is no necessity of taking out any proceeding by grand father to have the custody of the child because he is already custodian. Neither the mother nor the uncle has made any application to take the custody.

3. The Court below, upon considering the pros and cons rejected the application of the grand father. However, in absence of formal application of the mother the Court construed her as natural guardian of the child. In the appeal we find that the appellant-grand father wanted to get declaration of guardianship of the minor Nitin Kumar and his property. He prayed for injunction restraining the mother from alienating and transferring the property during the pendency of the dispute before the Court and decree thereof.

4. Section 7 of the Guardians and Wards Act, 1890 speaks as follows :

“7. Power of the Court to make order as to guardianship—(1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made—

(a) appointing a guardian of his person or property, or both, or

(b) declaring a person to be such a guardian, the Court may make an order accordingly.

(2) An order under this section shall imply the removal of any guardian who has not been appointed by Will or other instrument or appointed or declared by the Court.

(3) Where a guardian has been appointed by Will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.”

5. Welfare of the child is the paramount consider