SUDHA K R Vs. P R SASIKUMAR

JUDGEMENT

(1.) This appeal is against an order dismissing an application under Section 29 of the Guardians and Wards Act, 1890. Appellant is the mother and respondent is the father of two children aged 15 and 14 respectively in 2010, while the original petition from which this appeal arises was instituted. Their paternal grandmother, T.S.Indira, bequeathed an item of property to those minors. Later, after she and her husband died, the minors' mother moved an application under Section 29, in the wake of the need to generate more funds for the continued education of the children. She had found out a purchaser for the property, who offered Rs. 3,50,000/- per Are and had also paid an amount of Rs. 5,00,000/- as advance.

(2.) The fact that the respondent is the father and the natural guardian, in terms of Section 6 of the Hindu Minority and Guardians Act, 1956, is of no consequence because, in the absence of the father, the mother is the natural guardian even in terms of that provision and the application by the mother is not opposed, but consented to by the father. Hence we do not find any legal infirmity in the mother applying for permission to act as the guardian. The consent of the father to such an application is sufficient, having specific regard also to Rule 3 of the Rules framed by the High Court of Kerala under the Guardian and Wards Act.

(3.) In Jancy Rajan v. Nil,2009 1 ILR(Ker) 676, the Division Bench of this Court held that the Court should be considerate in granting permission to guardian unless the guardian has an interest adverse to that of the minor. We concur with that. We also find considerable support for the aforesaid view in the judgment of this Court in Kurian C.Jose v. Meena Jose, 1992 1 KerLT 818, which says that though the father is the guardian of the minor and has a preferential claim for guardianship, the same cannot, by itself, be decisive and that the paramount consideration would be the welfare of the minor. Even assuming that the said decision is not rendered in relation to parties who are Hindus, we would apply that decision as a precedent for the principle that it is the welfare of the minor and not legal rights of the parents that should weigh with the court in the matter of appointment of guardians for the person or property of a minor. Any adjudication on that issue would arise only when the father is alive and is contesting a request for appointment of another person, including the mother, as guardian. For further support, see the ratio of the decision in Githa Hariharan v. Reserve Bank of India, 1999 2 SCC 228.