NAZIR KHAN Vs. GANESH

JUDGEMENT

(1.) This is a first appeal from an order brought by the father against an order of the District Judge of Agra made, or purporting to be made, under the Guardians and Wards Act. The circumstances are simple; but although the law is clear, they are such as arise from time to time and create difficulty in applying the law. One Nazir Khan applied to the District Judge to be appointed guardian of the person of his minor son who was born in 1912. Of course, the parties are Muhammadans. In December 1912, while the son was only eight months old, the father, the present applicant, handed over his son to one Ganesh, a convert to Muhammadanism, thereby delegating his duty of custody and care and up-bringing of the infant.

(2.) The arrangement was drawn up in a deed which went far beyond what the law recognizes in such matters, namely, it purported to be a sort of transfer of ownership and complete possession and control of the boy from the father to Ganesh, who undertook to bring him up to perform the marriage ceremonies and to educate him. No doubt, the deed was meant at the time to create a kind of adoption. We do not know, but it may have been based entirely upon sentimental considerations. Nazir Khan certainly had one other son; it is possible that Ganesh had none. There is, of course, no such thing as adoption amongst Muhammadans and an arrangement of this kind is clearly revocable. There is no question, of invalidity; whether the father by revoking such an arrangement and taking back the son would create a valid claim for compensation at the suit of Ganesh is a matter which cannot be considered as arising under the Guardians and Wards Act. It would have to be the subject-matter of a suit is any case and the decision would presumably depend upon the provisions of the deed, because unless the deed provided for compensation in the event of revocation, the fact that a revocable deed was entered into would presumably exclude the possibility of the parties contemplating the contingency of compensation arising. Persons who desire to adopt or to bring up other people's children may well consider themselves rewarded by the pleasure it undoubtedly gives them in return for the expenditure of cash which they are able to spare upon an excellent object of that kind. Of course, the application made to the Court below in this case was a revocation of the authority contained in the deed

(3.) The learned Judge treats the application as being in form what it actually purported to be, namely, an application by the father to be appointed a guardian. It is a pity that District Judges who are called upon to administer this Act do not take the trouble to familiarize themselves with the fundamental law upon the subject and of the decisions of the Privy Council. If there were any doubt about the position of the natural father, that doubt was removed in the well-known case which attracted much attention at the time, namely, of Annie Besant v. Naruyaniah AIR 1914 PC 41 decided by the Privy Council in 1914. The case decided no more than that a suit by a father would not lie, but their Lordships went out of their way to enunciate the principles relating to the rights of a father over his children during their minority. He is the natural guardian, he cannot divert himself of that duty, or substitute another in his place. His duty is in the nature of a sacred trust. He may, in the exercise of his discretion delegate his authority to another, such as a tutor or a school master or a friend and entrust the education and custody of his children to that other on such terms as he sees fit. Such delegation is revocable.