AKBARI Vs. SABRI

JUDGEMENT

(1.) THE tortuous round of litigation between the parties herein suggest that what is at stake is not only the custody of a physically handicapped minor, undoubtedly dear to them, but the 89 kanals of land which he owns which makes his custody not only more desirable, but positively attractive.

(2.) THE facts of the case as given are that one Habid Khan was married to Mst. Aishan, from whom three daughters, Mallan, Sheela (respondent Nos. 2 and 3) and Akbari, the present petitioner, were born. On Mst. Aishan's death some time later, Habib Khan entered into another marriage with respondent No. 1 Mst. Sabri and from that marriage the minor Wali Khan and two daughters were born. Habib Khan died on 15-9-1982. Respondent No. 1 thereafter married Ajmer Khan in the year 1984, abandoning Wali Khan and his sisters in their father's home and to the care of their step-sisters Akbari, Mallan and Sheela. Respondent No. 1 now laic claim to the 89 kanals of land of Habib Khan which had devolved by succession upon Wali Khan on the basis of a Will alleged to have been executed by him in her favour. This Will was challenged successfully by Wali Khan and others including the present petitioner. The finding of the Court was that the Will sought to be projected by respondent No. 1 had not been proved and the defendants in the suit i. e. Mst. Sabri and others could not succeed to the property on that basis. The matter did not end here and a suit was thereafter filed by the petitioner against respondent No. 1 praying for an injunction that the latter be restrained from taking the custody of Wali Khan in any manner other than in due process of law. This suit too was decreed vide judgment of the Trial Court dated 25-2-1987. Still dis satisfied, respondent No. 1 filed a writ of Habeas Corpus in this Court seeking the custody of the minor but the same was declined vide judgment of this Court dated 2-6-1988 Annexure P-2 to the petition though the Court in order to safeguard the interest of the minor, ordered a financial settlement in his favour keeping in view the income from the 89 kanals of land left to him by his father. The High Court, however, made no order as to the custody of the child who was admittedly at that stage in the defecto custody of the petitioner. Respondent No. 1 still persisted in her efforts and moved an application under Section 97 Cr. P. C. before the Court of the Sub-Divisional Magistrate, Fatehgarh Sahib who caused the minor to be produced before him, recorded his statement and on that basis disallowed the application and directed that be be restored to the custody of his sisters Mallan and Sheela at village Lang. Respondent No. 1 still not satisfied and displaying the tenacity of Robert Bruce's proverbial spider moved yet another an application (out of which the present proceedings arise) this time under Section 25 of the Guadians and Wards Act, 1908 (hereinafter called the 'act') claiming the custody of the minor but impleading Sheela and Mallan as also the General Public, as respondents, but not Mst. Akbari the present petitioner. This application came up for the first time before the Guardian Court on 24-12-1991 and the following order was recorded :-"it be registered. Notice to General Public be issued for 30-1-1992 through publication in Daily Teer Kaman, Patiala. Notices to respondent Nos. 2 and 3 be also issued. "

(3.) ON 30-1-1992, it was noted that the publication had been made but as none was present to file objections, the case was adjourned to 20-2-1992 for evidence of the applicant The ex parte evidence was, thereafter recorded and the order impugned in the present proceedings made whereby the custody of the minor Wali Khan was ordered to be given to respondent No. 1. Armed with the order of the Guardian Judge, a warrant for the custody of the minor was issued and in execution thereof he was handed over Mst. Sabri. It appears that it was at that stage that Sheela and Mallan respondent Nos. 2 and 3 who had been impleaded as parties but apparently not served moved an application for the setting aside of the ex-parte order against them and those proceedings are now pending in the Court of the Guardian Judge at Patiala. The petitioner also aggrieved by the said order filed an appeal in the Court of the Additional District Judge, Patiala for having it sot-aside but the same was dismissed vide judgment dated 7-8-92 on the ground that as she was not a party to the proceedings before the Guardian Court, an appeal at her instance was not maintainable. It is in these circumstances that the present revision petition has been filed praying that the order dated 25-5-1992 made by the Guardian Judge be set-aside.