RAM GULAM Vs. DHANWANTI

JUDGEMENT

(1.) This is an appeal against the order dated 1-11-1977 passed by the learned District Judge, Moradabad, Kishan Lal, who was a minor, when his mother Smt. Dhanwanti (Respondent) and his uncle Ram Gulam (Appellant) separately applied for being appointed as his guardian. Whereas the application of the mother was accepted and she was appointed as the guardian by the order dated 4-7-1970, the application of the appellant was rejected. Later, the appellant made an application for removal of the respondent from the guardianship on two counts that she had remarried and that she failed to comply with the order regarding the payment of Rs. 600.00 per year. Such application of the appellant was rejected by the learned District Judge by their impugned order dated 1-11-1977 and hence this appeal praying that the order dated 1-11-1977 be cancelled and his application for appointment of guardian be allowed.

(2.) I have heard the learned counsel for the parties. Learned counsel for the respondent has raises a preliminary objection that the minor has become major and, therefore, the appeal has become infructuous. In her aforesaid application, the respondent stated the date of birth of the minor as the year 1965. Such case of the respondent was not controverted by the appellant. It is, however argued by learned counsel for the appellant that the respondent herself did not adhere to the year 1965 as being the year of birth of the minor and she herself set up a case in the objections filed against the application of the appellant that her son was born in the year 1961 and that the same year was repeated in the accompanying affidavit. The argument of learned counsel for the respondent is that even if the year of birth is taken as the year 1965, the minor would have attained majority in the year 1983 in view of Sec. 4(a) of the Hindu Minority and Guardianship Act, 1956. The contention of the appellant is that this question never came up for consideration in the past and the matter be sent back for determining the date of birth of the minor, I do not see any force in this submission. The respondent clearly stated that her son was a minor, as he was born in the year 1965. This case was not controverted by the appellant. It cannot, therefore, be said that the question of minority never came up for consideration in the past. The foundation of the application made by each party was dependent of the fact of minority which can be determined with reference to the year of birth. This being so, the question as to when the son of the respondent was born and whether he was a minor when the application was made was very much there for consideration, when each party prayed for appointment of guardian. The appellant having not set up a case that Kishan Lal was born in a year later than the year 1965, it must be held that the minor attained majority in the year 1983 within the meaning of Sec. 4(a) of the Hindu Minority and Guardianship Act, 1956. The appellant cannot improve his case by saying that in her objection filed against the application of the appellant, stated the year 1961 as the year of birth of the minor and the same year was repeated in the accompanying affidavit. If the year 1961 is taken to be the year of birth then the minor would have attained majority much earlier then the year 1983. The position would have been different had the appellant controverted the case of the respondent saying that the minor was born much later than the year 1965. No such case having been set up, the contention of the respondent that the minor had attained majority in the year 1983 is correct.

(3.) Then it was submitted for the appellant that the year of 1966 might be taken to be the year of birth of Kishan Lal only for the purposes of this case and the decision of this case should not prejudice the proceedings of any other case directly relating to the date of birth of Kislian Lal, I quite agree that the year of birth of Kishan Lal is decided for the purposes of this case strictly on the basis of the present record and any future proceedings relating to the date of birth will not be affected by the instant order. The minor having attained majority in the year 1983 as per record of this case, there is no question of allowing the application of the appellant for appointment of guardian, and the appeal has surely become infructuous.