K. Mathivanan vs R.Jayalakshmi (died) and another

Both appeals arise out of a common order passed by the learned District Judge, Thanjavur, in O.P.Nos.24 of 1992 and 48 of 1993.

O.P.No.24 of 1992 was filed by the respondent in this appeal praying for appointing herself as guardian for the person of the minor Iswarya.

O.P.No.48 of 1993 was filed by the appellant herein who is the father of the minor child, for directing the respondent to hand over the minor being

the only daughter of the appellant to him.

The respondent as originally impleaded, is the maternal grandmother of the child. Subsequently, on her death, the son of the respondent had

been sought to be impleaded as the legal representative.

According to the respondent, in her O.P.No.24 of 1992, it was contended that the appellant was married to her daughter by name Geetha on

31.10.1988 at Thanjavur. The appellant belongs to Coimbatore where his parents are living and he was employed at Delhi at the time of the

marriage. He was subsequently transferred to Madras where he was living with his wife. In wedlock a female child was born on 9.11.1989 and

named as Iswarya who was aged about 3 years on the date of the petition. The appellant and his parents were not happy about the child as the

child was a female one. It was further stated that the petitioner''s daughter''s marital life with the appellant was not happy and that her daughter died

in the he midnight of 22.12.1991 at Kilpauk Medical College Hospital succumbing to burn injuries which she had received under suspicious

circumstances at the appellant''s residence. The unexpected sudden and unnatural death of Geetha implies the demand for dowry and attempted

harassment. A case was registered in Crime No.998 of 1991 of F2 Tank Factory Police Station and the same was pending investigation. The

body of the petitioner''s daughter was brought to Thanjavur and was cremated at Thanjavur. The minor was also brought along with the petitioner

at Thanjavur with the intention of taking total care of her up bringing. The appellant and his parents never cared to keep the child with them. The

minor was with the custody of the petitioner from the date of death of her mother. Therefore, appointing the petitioner as guardian would be

required to safeguard the utmost welfare of the minor. Having lost her daughter, the child was the only consolation for the petitioner and her

unmarried son was also showing affection towards the child. The existing arrangement was conducive and happy for the future of the child. The

minor requires warmth of feminine affection. The appellant as a natural guardian of the minor, had rendered himself unfit for the above mentioned

reasons. Further, he intends to marry again and no one in his family has any affection towards the child. Therefore, it is unsafe to leave the minor

with the appellant. There was no responsible person to look after the child when he leaves for his employment. He will not be able to devote his

attention to the child while at office.

In the counter filed by the respondent, appellant herein, it was contended that the petitioner cannot seek remedy under the Guardian and Wards

Act, 1870 as she has no right to claim the guardianship over the minor. The allegation regarding the appellant and his wife not having lived happily,

was false and that the said allegation has been made with ulterior motive to prejudice the Court. The death of his wife was due to accidental

reasons and her dying declaration before the competent authority would prove the same. It is true that a case was pending as regards the death.

But it was only for a formal investigation since she had died within seven years of marriage. The other allegation as regards his alleged incapacity

was imaginary. He being the natural guardian, he was capable of looking after his only child. Eversince the marriage he was leading a happy life

with his wife and out of wedlock a minor child was born. After his transfer from New Delhi to Madras, he was allotted a residential quarters in

HUF''s Estate, Avadi. Even thereafter, both of them living happily till the unfortunate accident occurred on 22.12.1991. Even before the appellant

was recovering from the loss of his wife, one of his brother-in-law R.Muthukumar bad given a false complaint to the police. However, the

deceased herself had given a dying declaration stating that she has sustained injuries only due to her own negligence while lighting the stove for

preparation of food. She has also stated that no one was responsible for the accident. Incidentally the petitioner, her son Muthukumar and one of

their relatives Chandra Thangarajan, had given a written statement on 23.12.1991 itself to the Tahsildar stating that the appellant was a man of

good character and they do not have any suspicion in connection with the death of his wife. The minor was taken along with the body of his wife

and the petitioner had also left to Thanjavur with a promise to return the child to her father. But later she did not honour her words. On 7.1.1992

the petitioner and her son came to Avadi and insisted that the appellant should hand over all the articles belonging to his wife. The articles were

returned to the petitioner and her son including ornaments weighing 46 sovereigns. The complaint was given to the police only to add insult to injury

thus causing mental agony to the appellant. It is further stated that the petitioner''s family was in financial crisis owing to so many litigations and the

petitioner''s family has no standard income. They have borrowed several loans and they were unable to pay even the interest for the same. It is

further staled that the petitioner had sole away all the jewels belonging to his wife in older to settle part of the loan borrowed by them. They have

no right to dispose of any property belonging to his wife. The petitioner was afraid of her own illegal misappropriation of jewels for which she was

answerable to the appellant. If the minor child was to be returned to the father, then the petitioner will have to hand over the jewels belonging to the

minor''s mother which she cannot do at this stage. It is only for that reason, the petitioner had sought for being appointed as guardian of the minor.

The petitioner was shedding crocodile tears only to safeguard herself. The petitioner and her son had also threatened the appellant and she would

see him ousted from the employment if he takes custody of the minor child. He was deprived of the company of his only child and the minor child

was also deprived from warm care of her father, it would affect the child further physically and mentally. The petitioner was already an aged person

with her unemployed son around her. Therefore, the petitioner cannot concentrate on the welfare of the minor child As regards the petitioner''s son,

after his marriage, the treatment of the minor child will not be proper. The members of the appellant''s family are more affectionate and sympathetic

towards the minor child. The appellant is a permanent Government Servant and earning a standard income, His family is also in a good financial

condition.

In H.M.O.P.No.48 of 1993 the appellant herein had prayed for the custody of the minor child. It is unnecessary to deal with the pleadings of

both sides in H.M.O.P.No.48 of 1993 inasmuch as the allegations are the same as in H.M.O.P.No.24 of 1992.

The learned District Judge after considering the said pleadings and the evidence, rejected the petition for custody of the appellant herein, in

O.P.No.48 of 1993 and allowed the petition filed by the respondent herein in H.M.G.O.P.No.24 of 1992 for appointment of guardianship. The

learned District Judge though he did not record any specific finding that the appellant herein was in any manner disabled from securing custody of

his minor child, however, held that the conduct of the appellant discloses that he was indifferent all through about the welfare of the minor child and

therefore, the respondent herein was entitled to be the guardian of the minor child. Hence, the present appeal.

Learned counsel for the appellant/father of the child, contends that the trial Court appears to have been carried away by the unsubstantiated

allegation that the appellant was suspected of having been the cause of the death of his wife which could have resulted from demand of dowry.

Even though there was no basis for the said allegation nor had the trial Court itself had rendered any such finding and the death was purely due to

an unfortunate accident, yet a reading of the judgment discloses that such an underlying suspicion had actually operated in the mind of the trial

Court in holding against the father who was the natural guardian and had every right to have the custody of the child. The finding that the appellant

had not cared for the minor child was without any basis. The death of the wife occurred on 22.12.1991 and adding to the agony of the appellant

he was mentally and physically kept under pressure by the false complaint given on the side of the respondent. This was followed up by the

respondent/petitioner seeking appointing her as: guardian. During the pendency of these appeals, the respondent/grandmother of the minor died.

Consequently, in both the appeals, the appellant had filed C.M.P.No.4268 and 4269 of 1999 for impleading the son of the respondent, namely,

maternal uncle of the minor as legal representative, in whose custody the child continue to remain. In this affidavit, the petitioner had contended that

the respondent died on 22.3.1999 and she had left her only son Muthukumar as her legal heir.

Learned counsel for the respondent contends that the cause of action for the appointment of guardianship is personal for the individual who

seeks to be appointed as guardian and that on the death of the individual, it will not survive. The petitioner will have to take fresh proceeding

against the person who has the custody of the child. The proposed respondent has also taken separate proceedings to be appointed as guardian

and therefore, the appellant has to defend the said proceedings also.

On the merits, learned counsel for the respondent representing the proposed party, states that the evidence clearly establishes that the appellant

was neither a desirable person nor had he evinced any interest in the minor. He was only interested in getting back the jewels and not the welfare

of the child. Mere fact that he was the father of the child was riot sufficient to grant him custody of the child since his antecedents of his relationship

with his wife was questionable. In all probabilities the child will not feel happy about living with the appellant whose conduct was the cause of death

of his (minor) mother.

In opposing the petition to implead the legal representative of the respondent, learned counsel relies on a judgment of a Division Bench of

Bombay High Court in Gangabai v. Khashabai, ILR 23, Bom. 719.

That was a case in which one Khashabai applied to be appointed as guardian of the minor and her application was opposed by the

grandmother of the minor who alleged that she had been appointed as guardian under the will of the father of the minor. It was found that the will

was not proved and hence Khashabai was appointed to be the guardian by the trial Court. During the pendency of the appeal Gangabai died and

her brother applied for leave to prosecute the appeal as Gangabai''s representative. The Division Bench held that the appeal must abate by reason

of Gangabai''s death and her appointment alleged to have been made under the will was a matter of personal preference and trust and that a claim

based on personal trust would not survive to her representative.

The above decision was converse case on facts namely, the grandmother was unsuccessful before the trial Court and she filed an appeal. She

died during the pendency of the appeal and her brother sought to be brought on record. The High Court held that the right claimed by the

grandmother was by virtue of a will said to have been executed by the father of the minor and as such the right was personal to the grandmother

and cannot survive in favour of her son. Learned counsel further contends that after the death of the mother, the question as to whether the son was

entitled to retain the custody of the child or not has to be considered which would be possible only on fresh evidence and that the respondent had

also filed another O.P.No.49 of 1999 praying for being appointed as the guardian of the minor.

Reference is also made to the observations contained in Brooms Legal Maxim, 10th Edition, Page 606, dealing with the maxim ""Action

personaliss Moritur cum persona""-A personal right of action dies with the person. On this issue I am inclined to partly agree with the contentions

raised by learned counsel for the respondent as dealt below:-

It is true that as far as O.P.No.24 of 1992 is concerned, in which grandmother sought to be appointed as the guardian and she was appointed so

by the trial Court, the decree would become inoperative and would not survive in favour of any person after her death. The decree is a declaration

of the right in favour of a particular person namely, the grandmother. No other person can claim to have inherited the right to be the guardian of the

minor. Therefore, in respect of C.M.A.No.1402 of 1995 preferred against O.P.No.24 of 1992, the appeal becomes inoperative and cannot be

proceeded further. This position is riot very seriously disputed by learned counsel for the appellant. But he would contend that he has no other

alternative except to file an impleading petition, since he was entitled to pursue the appeal against the dismissal of his petition seeking custody of the

child since the legal representative of the deceased/respondent was keeping the custody of the child, He would also refer to the judgment of the

Supreme Court in Badni (Dead) by L.Rs. and Others, Etc. Etc. Vs. Siri Chand (Dead) by L.Rs. and Others, Etc., wherein their Lordships held

that in a batch of appeals as against a decree based on a common Issue, the failure to bring on record the legal representatives of one of the

deceased/appellants in one appeal would result in abatement of other appeals. The order of the High Court dismissing all appeals as abated so as

to avoid conflicting decrees, was held to be proper.

In the case dealt with by the Supreme Court, different suits were filed by various plaintiffs for possession of the suit property by way of

redemption. The defendant resisted the suit by contending that the plaintiffs were not successors in interest of the original owner. The suits were

dismissed by the trial Court while the appellate Court allowed the appeal filed by the plaintiffs. While the further appeal was pending before the

High Court, one of the appellants died, but his legal representatives were not brought on record. In such circumstances, the High Court held that

the other appeals also stood abated since the common issue regarding the right of the plaintiff had become final as a result of the abatement of one

of the appeals and that therefore, it was necessary to avoid conflict of decrees. This view of the High Court was upheld by the Supreme Court. In

my opinion, the said judgment would be of no help either to the appellant or to the respondent.

The above mentioned decision of the Supreme Court cannot be applied to the present case without appreciating the peculiar features of the

present appeals. It is true that the petitions filed by the grandmother for appointing her as guardian and the petition filed by the father for the

custody of the child were tried together and a common judgment was also rendered. The test for applying the judgment of the Supreme Court is

not to be concluded by the incident of a common judgment alone, but to see whether the decree granted in one petition would result in any conflict

with the decree in the other petition. While the rights declared in favour of the grandmother to be the guardian is personal decree enforceable only

by her and is operative only during her life time, the father''s petition to have the custody of the child is based on his own rights to have the custody

of the minor child not only against the grandmother, the respondent, but it would be against every one and all persons who retain the custody of the

child after the death of the respondent. It would be a mockery of the machinery of administration of justice to say that the father should go on filing

petition after petition against whomsoever is found to be having custody of the child. We may also consider a situation where the father''s petition

to have the custody of the child is decreed in his favour, but the respondent dies soon after the decree, the decree will be certainly enforceable

against any other person who keeps the custody of the child after the death of the respondent. Such a person cannot be heard to say that the

decree cannot be enforced against him and that the father should file a fresh petition against him. The definition of legal representative in Section

2(11) C.P.C. is wide enough to include the proposed respondent herein as a person who intermeddles with the estate of the deceased, namely,

retaining the custody of the child.

Therefore, I am inclined to hold that the decree granted in favour of the grandmother appointing her as the guardian would become inoperative

on her death. The cause of action becomes the extinct, infructuous and the decree becomes unenforceable. But the petition filed by the

father/appellant does not abate and can be continued as against the proposed respondent who is admittedly having the custody of the child.

As regards the merits of the decision rendered by the trial Court I have heard both sides. It is true that the father''s right to have the custody of

the child is not absolute as contended by learned counsel for the respondent, placing reliance on a judgment of Travancore-Cochin High Court in

Appu Menon, v. Janaki Amma, AIR 1957 Tra. Coc. 39. But it is equally true that if no disqualification is attached to the father, it is implicit that he

should have the custody of the child. The position of the father both morally and legally as a natural guardian undoubtedly entitles him to have the

custody of the minor child especially as against all other persons than the mother of the child. The following decisions amply and clearly lay down

the special rights of the father to have the custody of the minor child.

In Mrs. Annie Besant v. G.Narayaniah, AIR 1914 PC 1914, Privy Council held that by reason of Section 19 of the Guardian and Wards Ad,

1870, no order declaring a guardian can be made during the life time of the father unless in the opinion of the court he was unfit to be the guardian.

In Re: M.S. Dakshinamurthi Mudaliar, M.M.Ismail, J. (as he then was) held dial under Hindu Law a father is natural guardian of his minor son

and he does not require any order from any Court appointing him or declaring him as the guardian of the minor son.

In Smt Smitri v. Chander Kumar, 1982 A.I.H. L.R 185 Punjab High Court held that hyper-technicalities cannot be allowed to stand in the way

of natural guardian to secure the custody of the child if he was otherwise found to be entitled to the custody.

In D. Rajaiah Vs. Dhanapal and Another, , Nainar Sundaram,J. as he then was, held that under Hindu Law father was the guardian and

custodian of his unmarried daughters in preference to the maternal grandfather. The welfare of the minor children was not to be measured in terms

of money and the wishes of the minor children cannot also control the discretion of the Court.

In S. Abboy Naidu and Others Vs. R. Sundara Rajan, , K.M.Natarajan,J. held that the minor in the custody of maternal grandparents after

mother''s suicide and the father was acquitted of criminal complaint as regards suspicious death of the mother of the minor, it was held that father

cannot be denied custody.

In J. Velan Vs. G. Muthu and Others, , Lakshmanan,J. held that father can seek for the return of the child to his custody though he had left the

child for a few years in charge of his wife''s relatives. It was not proper to deprive a father custody of the child on the ground that he left the child

for first few years in charge of his wife''s relatives.

In Krishna Raj Vs. Rajasekar and Another, a Division Bench of this Court held that when the natural father of the minor was alive and was not

alleged to be not a fit person to be the guardian of the minor, the father was entitled to the custody of the child. The maternal uncle or the maternal

grandmother cannot claim interest of the minor child unless it was proved that the father was not a fit person.

In Bakthavatsalam v. Srinivasan (2000) I M.L.J. 330, a learned single Judge of this Court held that a Hindu father was the natural guardian of

the children during their minority and as a prima facie paramount right to their custody unless he was found unfit or there were any other

circumstances.

In the present case, as rightly contended by learned counsel for the appellant, the trial Court appears to have been unduly influenced by a self

serving allegation and complaint by the respondent against the appellant as regards the appellant being indirectly responsible for the death of his

wife. The suggestion is that he was in the habit of extracting money and that the parents of the appellant were not happy about the birth of the

female child and that the deceased was not being treated property. It is true that one or two letters filed on the side of the respondent (Exs.A.2 and

A.4) the deceased wife appears to have expressed that her in-laws have been expressing their disappointment about the gifts given at the time of

the marriage. This shameless attitude of expecting gifts from the bride''s place is not uncommon in most of the families in our society. But as against

the said two letters, on the side of the husband, several letters written by the wife to the husband, and by the husband to the wife have been filed -

Exs.B.21 to B.36. Several letters written by Muthukumar, the proposed respondent herein being the brother of the deceased who is also

complaint against the appellant before the police, written either to the appellant or to the deceased had also been filed on the side of the appellant -

Ex.B.1 to B.7 B.9 to B.12. In none of these letters is there any expression of any lack of cordiality or unpleasantness between the two families or

any accusation against the husband. In fact, in one of his letters (Ex.B.34 dated 27.6.1991) he was asked the appellant as to whether the deceased

was creating any problems He has expressed his anxiety only as against the conduct of the deceased and not of the appellant.

None of these features have been properly taken into account by the trial Court. It is also unreasonable to draw adverse inference by the mere

fact of a complaint having been filed against the appellant: It is not disputed that the complaint given by the respondent, after due enquiry by the

police Was dropped and further action was given up after holding that the death was accidental. It was not even found to be a case of suicide. The

most important piece of evidence is the F.I.R. given by the respondent himself which has been marked as Ex.B.15. The informant has clearly

stated that he had received a telegram from his brother and the appellant about his sister having been admitted in the hospital and that his sister''s

death was only due to unexpected accident, Another most important circumstance is that after the police had dropped the compliant; no steps

were taken on the side of the respondent to pursue the complaint or to file any private complaint before the Magistrate. It would be unfair to ignore

all these features and to be influenced by an unsubstantiated complaint against the appellant. In fact, the trial Court itself has not recorded any

positive finding holding that the appellant was directly or indirectly responsible for the death of his wife. But it is equally clear that the reason for

ignoring the natural rights of the father to have the custody of the child was due to the prejudice created in the mind of the trial Court. The said

approach by the trial Court is perverse and cannot be sustained.

No allegations have been made against the personal conduct or the character of the appellant. It is not the case of the respondent that the

appellant was either given to bad habits or financially unsound to educate and support the child. The only specific ground mentioned by the trial

Court is that the appellant has not shown any interest to have the child back after the child was taken away by the grandmother immediately on the

death of the mother. This finding is again unsustainable. The death of the appellant''s wife was on 22.12.1991 and immediately thereafter, the child

was taken alongwith the grandmother/respondent. Close on heels came the complaint to the police which should have necessarily un-nerved the

appellant resulting in executing an agreement on 7.1.1992 handing over possession of the child to the proposed respondent (Muthukumar),

returning all the jewels belonging to his wife. Even in the said agreement, he had clearly stated that the child should be returned to him after she

became a major. It is needless to point out that this agreement was never implemented and was followed up by O.P.No.24 of 1992 filed on

13.2.1992 by the grandmother for appointing her as the guardian and O.P.No.48 of 1993 was filed on 16.12.1992 by the appellant for the

custody of the child. Therefore, the only reason given by the trial Court that the father did not show any anxiety to have the custody of the minor

child is without any reasonable basis and hence unsustainable.

It is also to be borne in mind that u/s 19 of the Guardian and Wards Act, 1890, it has been specifically made clear that the Court was not

authorised to appoint or declare any one as guardian of the property of a minor or to appoint or declare a guardian of the person of the minor

whose father was living and was not in the opinion of the Court unfit to be the guardian.

I have also taken into account the subsequent developments of the death of the grandmother/respondent who was appointed as the guardian.

The relationship and affection of the grandparents with the grandchild is something spontaneous and can be favourably assumed. But as against the

affection of a maternal uncle, the feelings and affections of a father and his rights as a natural guardian, is certainly entitled to preference. Therefore,

I am inclined to allow the appeal filed by the appellant as against the dismissal of his petition for custody of the child and the respondent is directed

to hand over the custody of the minor child to the appellant.

In the result, C.M.P.No.4268 of 1999 seeking to implead the proposed respondent is allowed and C.M.A.No.1403 of 1995 is allowed. Both

C.M.P.No.4269 of 1999 and C.M.A.No.1402 of 1995 are dismissed as inoperative and infructuous. No costs.