GH MOHD DAGA Vs. NABA SHEIKH

JUDGEMENT

(1.) THIS is an appeal filed against an order dt. 6 -4 -78 passed by the Dist Judge Anantnag on an application under Guardian Act.

(2.) I have heard the learned counsel for the parties and have gone through the judgment of the learned District Judge.

(3.) THE father of the deceased having expired, the mother of the minors took the children to her maternal home. After some lime the mother re -married and left the children with her father i.e. maternal grandfather of the children. The father of the deceased held some land jointly with the respondent. The respondents claimed that one of them should be appointed guardian of the person and property of the minors of their deceased brother. While the applicant i.e. the appellant herein with whom the children are living claimed that the interest of the minors will be safe only with him, being appointed as guardian and further stated that if any one of the respondents, was appointed as guardian the person and property of the minor was not safe. The learned Distt Judge has referred to some portions of the evidence recorded from both sides. It appears that the respondents herein have claimed before the District Judge that the minors father owned only two kanals of land while the patwari, who was produced and examined, has stated that the father of the minors was entitled to more than 6 kanals of land in the joint property held by him and the respondents. This is admitted by the learned Judge also. It is also admitted by the learned District Judge, hat the minor son of the deceased had been engaged with the daughter of one of the uncles. But there is pending suit in which the daughter has claimed that the marriage may not take place as the same had been arranged against her will. This further shows that there is some litigation between the uncles on one side and one of the minors on the other. The very fact that the uncles respondents having denied the full share to the minors children of the deceased brother who have put the learned Judge on guard and in my view should not have appointed one of the uncles as guardian of the person and property of the minors because the interest of the guardian so appointed clearly is at variance with the interests of the minors. On the other hand the appellant who is the maternal grandfather of the of the children and with whom the minors also live almost since the death of their father, is in my view, far better a person than respondents to look after the interests of the minors, so far as the person and well being of the minors is conceded. I, therefore, allow this appeal and set aside the order dated 6 -4 -78 of the learned District Judge Anantnag, and appoint Gh. Mohd. Dagga as the guardian of the person and property of the minors. The guardian Gh. Mohd. Daga will keep account of income derived from the share of the minor children and if he so is advised, may file a suit for partition so as to obtain separate possession of the land for the minors. A certificate in this regard be issued in accordance with law. The appeal is accordingly allowed, but no order as to costs.