KRISHNA RAJ Vs. RAJASEKAR

JUDGEMENT

(1.) THIS Letters Patent Appeal is directed against the order dated 5. 8. 1996, passed by a learned single Judge of this Court, in C. M. P. No. 8624 of 1994 in A. A. O. No. 791 of 1996.

(2.) THE appellant herein is the father of the minor girl rathana Kumari. THE appellant married one Jayalakshmi according to Hindu rites on 26. 8. 1987 at Tuticorin. After the marriage the said Jayalakshmi was taken to Madras , where the appellant herein is residing with his parents and brother. Out of the wedlock, the minor girl rathana Kumari was born on 20. 6. 1988. Jayalakshmi died on 2. 7. 1994. After the death of Jayalakshmi the appellant herein and his parents entrusted the custody of the minor child to the respondents herein. THE appellant herein also said to have executed a registered power of Attorney dated 7. 7. 1994 in favour of the respondents herein to look after the minor child. A settlement deed was also executed by the appellant herein settling certain properties in favour of the minor child. However, on 5. 9. 1994, the appellant cancelled the general Power of Attorney deed and the settlement deed and a publication was also made in Malai Malar dated 25. 9. 1994 to this effect. That the respondents herein refused to hand over the custody of the minor child to the appellant. Under such circumstances, the respondents filed D. W. O. P. No. 137 of 1994 under the Guardians and Wards act, praying for a declaration that the appellant herein, who is the father of the minor child, is unfit to be the guardian of the minor child and appointing either of them as guardian of the person and property of the minor child. THE respondents herein also alleged in the said petition that the appellant ill-treated Jayalakshmi and she died on account of such ill-treatment; that the appellant herein is addicted to drink, a womaniser, and a man with all sorts of vices. Respondents further alleged that the appellant is attempting to grab the properties given by the father of Jayalakshmi to her at the time of her marriage with the appellant. Respondents herein examined themselves as P. Ws. 1 and 2 and one other person was examined as P. W. 3. THE appellant herein filed his counter and examined himself as P. W. 1. Considering the facts arising in this case, the District Court came to the conclusion that all the charges levelled against the appellant herein were not proved and the respondents herein failed to make out a case to show that the appellant herein, who is father of the minor child, is not a fit person to be as guardian of the person and property of the minor child. THE district court further held that the appellant herein is the father and natural guardian and the custody of the minor child by the respondents herein is not sanctioned by law. Accordingly the original petition was dismissed on 12. 6. 1996.

(3.) THE appellant herein is the father of the minor child. Respondents 1 and 2 are maternal uncle and maternal grand-mother of the minor child. THE mother of the child is no more. THE appellant is living at Madras and the respondents are residing at Tuticorin. THE child is now studying at tuticorin, under the custody of the respondents herein. We have already set out the facts in detail. THE point for consideration is after the dismissal of O. P. No. 137 of 1994, filed by the respondents, whether they are entitled to order of interim injunction restraining the appellant herein from seeking the custody of the minor child, who" happens to be the father and natural guardian. As already stated, the respondents herein failed to prove all the allegations levelled against the appellant herein before the District Court. THEy were unable to substantiate their oral plea put against the appellant herein. THEre is no documentary evidence on record to prove the allegations made against the appellant herein. It is no doubt true that after the death of Jayalakshmi, the appellant herein executed a general Power of Attorney in favour of the respondents herein to have the custody of the person and property of the minor child. But when once the appellant cancelled the said Power of Attorney, the respondents cannot refuse to hand over the custody of the minor child to the appellant since the appellant is none other than the father and natural guardian of the minor child. THE child was very happy with the company of the appellant when the custody was given to him by this Court twice. THE appellant is having his parents, brothers, etc. who can very well look after the welfare of the minor child. Since the minor child is now studying in 3rd standard in a convent at Tuticorin, the appellant is prepared to depute his parents to tuticorin to take care of the minor child till she completes her studies for the academic year. After the death of a Hindu female, her properties would devolve upon her husband and children. THErefore, there is no substance in the allegation of the respondents that the appellant herein is trying to grab the properties of the deceased wife Jayalakshmi.