Khazan Singh vs Smt. Parkash Kaur

Gokal Chand Mital, J.—The following pedigree-table would be useful is understanding the case.

Gurbachan Singh resident of a village in district Patiala was married to Manjit Kaur, a resident of Shahbad Markanda in District Kurukshetra. In March, 1980, after six months of marriage, Gurbachan Singh shifted his residence to Shahbad Markanda. Satwinder Singh was born to them at Shahbad Markanda on 30.1.1982. On 30.1.1983 Gurbachan Singh died in a road accident. His widow Manjit Kaur minor son Satwinder Singh and his mother Smt. Parkash Kaur filed claim petition before the Motor Accident Claims Tribunal. While that claim petition was pending, Smt. Manjit Kaur died on 4.1.1984 and the claim application was continued by Satwinder Singh minor and Smt. Parkash Kaur, mother of the deceased. The Motor Accident Claims Tribunal (for short ''the Tribunal''), awarded Rs. 13,600/- to Smt. Parkash Kaur and Rs. 62,000/- to Satwinder Singh minor. The minor''s amount is lying deposited in the FDR and under the orders of the Court, out of the interest, Rs. 200/- are being paid to Khazan Singh for the minor''s maintenance.

Smt. Parkash Kaur filed application u/s 25 of the Guardian and Wards Act, 1890 (for short ''the Act'') against Khazan Singh for the custody of the minor on the plea that she was the guardian being paternal grandmother. She pleaded that Khazan Singh may murder the minor out of greed as huge amount had been awarded in his favour.

4 Khazan Singh contested and pleaded that Parkash Kaur had no means to bring up the minor and was an old woman and the children of her other son have adverse interest. It was pleaded that in case minor dies, his property by succession will go to his paternal grandmother, that is, Parkash Kaur and not to him as pleaded and, therefore, he would not harm the life of the minor, rather would see that he survives.

In the replication it was pleaded that she has landed property and is fifty years old. On the pleadings, of the parties the following issues were framed:

(1) Whether the applicant is entitled to the custody of the child?

(2) Whether the application does not lie?

(3) Relief.

On the evidence led in the case, Guardian Judge by order dated 28.9.1987 allowed custody of the minor to the paternal grand-mother. This is appeal by Khazan Singh.

Counsel for the appellant at the outset has argued that although the Tribunal has ordered that out of the interest, Rs. 200/- be paid to the maternal grandfather for maintenance of the minor, since he has sufficient means to maintain the minor, it will be his sole responsibility to bring him up and he will not even withdraw Rs. 200/- per month from the account of the minor. Similar statement was made on behalf of the respondent In the circumstances it is ordered that whichever party ultimately may succeed no amount out of the money deposited in the FDR would be withdrawn for bringing up the child and the benefit of the interest would go to the minor and would be payable to him on his attaining the age of 21 years. In this view of the matter it is further ordered that whatever amount is lying to the credit ''of the minor whether in the FDR or in some saving account, whole of it be put in FDR to be renewed from time to time till the minor attains the age of 21 years, or till some order is passed by the Court for withdrawing some amount for his maintenance or education.

Parkash Kaur is widow. Her other son is in Military and his children are living with Parkash Kaur, or she is living with them, as the case may be. Land with Parkash Kaur is hardly enough to show that she is in affluent circumstances. On the other hand Khazan Singh is financially better of and can well maintain the child. This is one. circumstance in favour of Khazan Singh.

The second circumstance in favour of Khazan Singh is that the child is living with him since 30.1.1983 when Gurbachan Singh died and when he was just one year old. Since then 5 1/2 years have gone by and now he is 6 1\\2 years old. He is living with his maternal grandfather. There is some evidence on the record to show that since six months after marriage, Gurbachan Singh lived with his wife in the house of Khazan Singh and if this is to be believed then from the date of birth of the minor he is with Khazan Singh. The minor has been put in a proper school by Khazan Singh and is being brought up nicely. The minor was present in Court and one could see that he was well dressed and well maintained.

The minor was made to sit near paternal grand-mother but he did not recognise her nor did she try to show her love and affection to him. The bone of contention between the parties is not for the personal custody of the child but for the huge amount which has come to him under the award of the tribunal. The paternal grandmother has not shown as to what steps did she take to bring the widowed daughter-in-law and the grand-child soon after the death of her son. The application for custody of the minor was only filed after huge amount has been awarded by the Tribunal. In this back ground some of the decided cases which were cited before the Guardian Judge and not properly understood by him deserve to be noticed.

In M. Narsava v. Avin Kattappa AIR 1923 Mad. 359, it was ruled that presumptive heir of the property of minor is not suitable person to be appointed as Guardian, as such person stands to gain by minor''s death. This decision was distinguished by the Guardian Judge by saying that in the decided case distant relations were involved, whereas in case in hand closed relations like grandmother was involved. I have not been able to appreciate the distinction sought to be made by the Guardian Judge. If minor were to die the awarded amount lying deposited in his name would go to the paternal grand-mother and in no case it would go to maternal grand-father. Therefore, the interest and the welfare of the minor would be well safe-guarded if his custody is allowed to be kept away from his paternal side and in this situation the best person to be appointed guardian would be the maternal grandfather.

The Guardian Judge took notice of the suggestion made in the cross-examination to one of the witnesses of Khazan Singh that wife of Khazia Singh was step mother of the deceased''s daughter. The guardian Judge although noticed that the suggestion was denied yet drew adverse inference because of the fact that the case was contested by Khazan Singh and not by his wife. The learned Guardian Judge failed to notice that Smt. Parkash Kaur filed petition against Khazan Singh in whose custody the minor was, and did not implead the maternal grand-mother and if she had been impleaded, and the point of the fact had been raised that she was step maternal grandmother, she would have replied to the same. When facts were not pleaded in this behalf, a suggestion when denied, closed that chapter and could not be taken notice of while deciding the material issue.

To clear the doubt, if any. Civil Misc. No. 2093 CII of 1988 was filed by Khazan Singh for permission to place affidavit of his wife Smt. Gan Kaur on record Notice of the application was given to the opposite side and it was ordered that the same be heard along with the appeal. A reading of the affidavit shows that Smt. Gian Kaur has deposed that she is the real mother of Manjit Kaur deceased and that Khazan Singh solemnized the marriage only wish her and out of the wed-lock Manjit Kaur, mother of the minor, was born. No counter affidavit or material was brought on record. So, the doubt, if any, of the Guardian Judge is also over Moreover, the fact that after six months of marriage of Gurbachan Singh and Manjit Kaur shifted to Shahbad Markanda and lived there till death further shows that they were happy to live at Shahbad Markanda instead of living in district Patyala, if mother of Manjit Kaur had been step mother she would not have preferred to come to Shahbad. Accordingly, no adverse inference can be drawn and there is no point which may be against Khazan Singh.

The minor would be looked after better by Khazan Singh and his wife, and, as already noticed above, be appeared to be well kept and well brought up.

For the reasons recorded above, the appeal is allowed and after setting aside the judgment and decree of the Guardian Judge, the application of Smt. Parkash Kaur is dismissed and it is ordered that the minor would continue to remain under the guardianship of Khazan Singh.