FULKUMARI BIBEE Vs. BUDH SINGH DHUDHURIA

JUDGEMENT

(1.) This appeal is directed against an order for the appointment of a guardian of the person of an infant, by name Ranjit Singh, one of the grandsons of Rai Budh Singh Dhudhuria of Azimgunj. The rival claimaints for the office of guardian are the first cousin of the father of infant, Raja Bijoy Singh Dhadhuria, who has been proposed for appointment by the grandfather, and Fulkumari Bibee, the sister of the mother of the infant, who was nominated for appointment as guardian by the mother in a Will executed by her on the 7th June 1912. The District Judge has given preference to the uncle and has appointed him guardian of the person of the infant. Against that order this appeal has been preferred by the aunt and the uncle as also the grandfather have been joined as parties respondents.

(2.) To appreciate the circumstances under which the question of the appointment of a guardian of the person of this infant has corns before the Court, it is necessary to recite briefly the history of the family. Inder Chand Dhudhuria, the father of the infant and one of the sons of Rai Budh Singh Dhudhuria, went to England in 1889. On his return to this country, caste difficulties arose, and the ultimate result was that he was out-casted. The members of the community, however, subsequently relented and agreed. to limit the excommunication to Inder Chand himself and to all children that might be born after his visit to England. The infant now before the Court was born about the year 1898. The result of the excommunication of Inder Chand was that he had to live with his wife and children and separate from his father. This state of things continued up to the 9th April 1899, when Inder Chand died. Shortly after his death, his father was appointed guardian of the person and property of the infant on the 8th July 1899. It is clear, however, from the materials on the record that the grandfather was not able to keep the infant in his own custody, as the pressure of caste difficulties was insurmountable. Consequently, on the 18th December 1905, with the acquiescence, if not the actual assent, of the grandfather Indra Kumari, the mother of the infant, was appointed guardian of his person. The grandfather, however, continued to be the guardian of the property of the infant and it is not disputed that upto the present moment he is such guardian. Indra Kumari died on the 1st June 1913. A year before her death, she had executed a Will on the 7th June 1912 which was registered on that very day. No probate has yet been obtained of the Will, but its genuineness has not yet been questioned in the present proceedings and it has bean received in evidence by consent of all the parties and accepted in proof of the wishes of the mother in respect of the appointment of a guardian of her infant son after her death. On this subject, the Will is perfectly clear in its terms. The mother expressed a decided preference for her sister as the fittest parson to be appointed guardian of the person of her infant son. She stated this explicitly, and by this instrument she nominated her sister Fulkumari Bibee as her successor in the guardianship of the person of her minor son Ranjit Singh, Immediately, upon her death, the matter was brought inevitably into Court, and an application was made by Fulkumari Bibee for appointment as guardian of the person of the infant. But she had been anticipated, and the grandfather had already expressed a desire that his nephew, Raja Bejoy Singh Dhudhuria, should be appointed guardian. It is worthy of note, however, that Raja Bejoy Singh himself has never made an application in this behalf. The attitude he has consistently taken throughout the proceedings, both here and in the Court below, is that he is not unwilling to accept the office of guardian. He is ready to be burdensd with its responsibility, more out of a feeling that he should meet the wishes of his uncle than from a sense of attachment towards his nephew. The District Judge, as already stated, has decided in favour of the uncle as against the aunt. He has attached no weight to the wishes of the mother in this respect. He has also held substantially that the wishes of the minor, who is now about 15 years old, should not have any weight in the decision of this matter. the question for consideration before the Court, consequently, is whether the uncle or the aunt should be appointed guardian of the person of the minor.

(3.) The principle upon which the question should be decided is laid down in Section 17 of the Guardians and Wards Act. Sub-section (1) of that section provides that in appointing the guardian of a minor the Court shall be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. Sub-section provides that in considering what will be for the welfare of the minor, the Court shall have regard to the age, sex, and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent and any existing or previous relations of the proposed guardian with the minor or his property. Sub-section (3) provides that if the minor is old enough to form an intelligent preference, the Court may consider that preference. The primary point for I consideration consequently is, what, in the circumstances of this case, is for the welfare of the miner. As observed by Mr. Justice Davar in the case of Re Goolbai and Lilbai 32 B. 50 : 9 Bom. L.R. 923, in making orders appointing guardians for the persons of minors, the most paramount consideration for the Judge ought to be what order, under the circumstances of the case, would be best for securing the welfare and happiness of the minors? With whom will they be happy? Who is most likely to contribute to their well being and look after their health and comfort? Who is likely to bring up and educate the minors in the manner in which they would have been brought up by the parents, if they had been alive? In fact, the main question for the Court to consider in the case of the unfortunate minors, Who have lost their natural guardians, is who, amongst the relations, or for the matter of that, friends of the minors, can you select, who will supply, as nearly as possible, the place of their lost parent or. parents? The interest, well being and happiness of the minors ought to be the main and paramount consideration for the Court in selecting the guardian of the person of a minor. The same principle has been laid down by the Allahabad High Court in the case of Bindo v. Sham Lal 29 A. 210 : A.W.N. (1907) 21 : 4 A.L.J. 22. Indeed the question of the true welfare of the minor is of such paramount consideration that the recognised rights of guardianship under the law to which the minor is subject must, if necessary, be assigned a relatively subordinate position Tota Ram v. Ram Charan 8 Ind. Cas. 785 : 7 A.L.J. 1149, Mathuveerapa Chetty v. Lingammah (Ponnuswami Chetty) 13 Ind. Cas. 16 : (1911) 2 M.W.N. 561 : 10 M.L.T. 477 : 22 M.L.J. 68 or, as has some times been said, propinquity must yield to fitness Akima Bibee v. Azeem Sarung 9 W.R. 334 Sohna v. Khalak Singh 13 A. 78 A.W.N. (1891) 1 . Besides it is clear from the decision in Kristo Kissor v. Kadermoyee 2 C.L.R 583 the uncle, merely because he is a paternal uncle, is not, as a matter of right, entitled to supersede the aunt on the sole ground that she is the maternal aunt. The fundamental point to be considered is, what is for the welfare of the particular minor, an! that leads us at once to the question, what are the circumstances of the present case?