SHOBHA KSHIRSAGAR Vs. JANKI KSHIRSAGAR

JUDGEMENT

(1.) For the determination of the ticklish question of law that has surfaced in this case, no case parallel on facts being found in any reported decision, hearing of this appeal has unfortunately staggered and disposal delayed.

(2.) Contenders for guardianship in this case are threesome, albeit in two proceedings, and the wards also are threesome. The mother alone made an application under the Guardians and Wards Act, 1890, for short GWA, for declaration that she was the guardian of the person and property of her sons, Deepak, Dhananjay and Abhay, while another application was made a few days later for the same purpose jointly by the paternal grandmother of the children along with her daughter. Hearing of the two applications was consolidated. Because the other application was allowed and her application was dismissed, the mother has preferred the instant appeal impugning the decision rendered against her in the common judgement disposing of the two applications.

(3.) Narayanrao Kshirsagar, it is the common case of the parties, died on 25-10-1979 and it is also not disputed that the appellant is his legally married wife and that the three children were burn to them. What is, however, seriously disputed is the fact that whether Narayanrao executed, during his lifetime, the Will dated 23-10-1979 on which the appellant has relied or the Will dated 21-10-1979 on which his mother and sister relied. The fact, not in dispute, is also that Narayanrao was afflicted by tuberculosis and he died of that decease after protracted treatment and further that since few years before his death, the husband and wife were not living together. It is also not in dispute that eldest of the three children, Deepak, is, at present, living with his mother, the appellant, in Narayanarao's house, while his two brothers are still living elsewhere with the respondents, their grandmother and aunt. The allegation that Deepak was abducted by the appellant, and the house was occupied forcibly in my opinion, has little relevance to the controversy.