HASSAN BHAT Vs. GH MOHD BHAT

JUDGEMENT

(1.) THIS is an appeal against an order of the Sub -Judge, Anantnag, appointing the respondent as a guardian of the minor Mst. Rashida. "Before the learned Sub -Judge Anantnag, the paternal uncle of the minor who is the appellant here and the maternal uncle who is the respondent applied for being appointed as her guardian. The learned Sub -Judge, by a well -reasoned judgment and after considering all the aspects of the matter, particularly the welfare of the minor, rejected the application of the appellant and appointed the respondent as a guardian of the minor. The learned Sub -Judge was of the view that there was a direct conflict of interest between the appellant and the minor and it would not be safe under these circumstances, to leave the minor or her property in the hands of the appellant. It is conceded before us also that there is a conflict of interest between the appellant and the minor and in fact the appellant has already set up a deed of adoption by which his own son has been adopted by the father of the minor and under which one half of the property has been given to his son.

(2.) IT is, however, contended by Mr. Bhan that according to the Mohammadan Law which is to govern the minor in the case, the paternal uncle should be a guardian in preference to the maternal uncle, therefore, the court below is bound to appoint the guardian according to the Personal law. even though such an appointment may be against the interest of the minor.

(3.) IN our opinion this contention cannot be accepted. Section 17 of the Guardians and Wards Act clearly lays down that although a court should be guided in appointing a guardian by the personal law of the minor yet the consideration of the welfare of the minor should be the paramount consideration.