Monomohini Dasi vs Hari Prasad Bose

Adami, J.

[His Lordship set out the facts of the case and proceeded:--]Our first consideration must be with regard to the interest and the welfare of the minor, and after that, we have to see how far the intentions of the adoptive father can be best carried out.

With regard to the welfare of the minor it seems to me that there is not much difference between the various applicants if they do their duty. It is important that the boy should be given an education to fit him for his position as a member of the family of Nand Kumar who was a man of some wealth, leaving property valued at five lakhs. It is important then that he should be sent to a good school at Cuttack, and as matter of fact since his appointment as guardian, Hari Prasad has kept the boy at the Revenshaw College with a tutor guardian appointed by the District Judge. But Monomohini or Jagat Ballav or the executors would have been able to do and probably would have done, exactly the same and as a matter of fact Jagat Ballav lives in Cuttack and had a house where the boy could be kept, while Hari Prasad lives at Bahukud and a house has to be engaged for the minor.

The next question is whether by the appointment of Hari Prasad as guardian of the minor, the full intentions of Nand Kumar are being carried out. The learned District Judge has relied on the case of Gunga Prasad Bhattacharjee v. Hara Kanta Choudhuri 15 C.W.N. 558. There one Brajo Mohan Roy died leaving a widow, a minor son and two daughters; the son died and the widow adopted the minor son of Hara Kanta. On the widow''s death, Hara Kanta, the natural father, applied to be appointed guardian of the person and property of the minor. An executor appointed under Brojo Mohan Roy''s Will opposed the application with regard to the property and two brothers of the widow and one of her two daughters opposed the application with regard to the guardianship of the person. It was argued that the natural father of the minor adopted boy was not fit to be appointed as guardian of his person since by adoption the minor was cut off from all relationships with his natural family and by leaving him in the custody of his natural father the ties with his adoptive family would be severed. Sharfuddin, J., in that case held that the natural father was properly appointed guardian of the person of the adopted boy; but that case is distinguishable from the present one, for there the two daughters who applied were both married into other families, while the brothers of the widow were not members of the family of the adoptive father, so that there was no member of the adoptive father''s family alive. In the present case the paternal grandmother Monomohini is alive and ordinarily she would be the proper guardian of the boy. It appears too that in that case the learned Judge considered that the words in Clause (2) of Section 17 of the Guardian and Wards Act, VIII of 1890:

Any existing or previous relations of the proposed guardian with the minor or his property.

would cover the case of a natural father with regard to his son who had been adopted. It is clear, I think, that in that clause relation does not mean relationship. It seems that if the adopted boy is again put in charge of his natural father all the objects of the adoption are lost; he will not be likely to keep the traditions of the family of his adoption and will be brought up in the traditions of his natural father''s family and will be likely, when he grows up, to repudiate all relationship with the adoptive father''s family. Thus the intention of the adoptive parents would be frustrated.

In Miscellaneous Judicial Case No. 24 of 1924, which came up before Jwala Prasad and Kulwant Sahay, JJ., in connection with the present dispute, subsequent to the order passed by the District Judge from which these appeals have been lodged, Jwala Prasad, J., said:

The boy was six months old when he was adopted and had been living in the adoptive family up to the death of his adoptive mother in the year 1922 for a period of about 8 or 9 years. The boy had developed affection for the adoptive grandmother to such an extent that it was difficult for the District Judge to enforce his order to hand over the boy to the natural father" ... "The object of adoption by Nand Kumar Bose was to affiliate the boy into his family and to disassociate himself completely from his natural father and family. The boy is to become a member of the adoptive family and to own the adoptive father and the adoptive mother as his parents and the relations of the adoptive family as his own relations. All traces of relationship with the natural parents or their relations had to be effaced.

Speaking of the tutor who happened to be appointed, Jwala Prasad, J., said:

He should have reared up sentiments such as the adoptive father wanted to imbibe him with. The District Judge should not encourage any foreign tendencies being developed in the boy; and when such matters are brought to his notice he should, see that such sentiments are soon destroyed and not allowed to grow" ... "If the boy is not shaped from now to take his proper position in the adoptive family, after he comes of age he will be totally lost to the family and perhaps he would like to go back to the natural father and that might be the game which the natural father is perhaps now trying to play.

In my opinion, in this case, the intentions of the adoptive father would be frustrated if the boy is allowed to remain in charge of Hari Prasad.

[His Lordship then considered the evidence and doubting the disinterestedness of Hari Prasad, held that he was not a proper person to be appointed guardian. Then referring to the other applicants, His Lordship observed:--]

With regard to the application of two executors jointly, I do not think that it is proper that it should be granted. It is necessary that the person who is appointed guardian of the minor should live with him and look after him and attend to his daily needs. The two executors could not do this properly: besides there is the objection, which has been considered by the District Judge and accepted, that the two executors under the will would have the disposing power over the properties of Nand Kumar on the death of the minor. It seems that these executors, under the terms of the will, could not he said to be the presumptive heirs. There is no reasonable ground before us for suspicion or fear that men of the age of Jagat Ballav and Benode Lal, who have up to the present managed the property carefully and well, would have any thought of bringing an end to the life of the minor or of doing anything disadvantageous to him. Jagat Ballav Ghose is an old man of about 75 and it is not likely that he would covet in any way the property of the minor. With regard to the application by Jagat Ballav alone, the remarks I have made with regard to the two executors apply. It may be that there is little likelihood that Jagat Ballav would be moved by any interest adverse to the minor, but he is not a member of Nand Kumar''s family though he is the father of the minor''s adoptive mother. In my opinion it is preferable that in a case like this the same person should not be guardian both of the property and person of the minor.

We come next to the application of Monomohini and this application, I think, should have been granted by the District Judge. The objections put forward against her are merely to the effect that she is old, somewhat weak minded, and has lost all interest in worldly affairs. That she has been fond of the minor is not denied, and that he was fond of her. He had lived with her ever since Sarojini''s death and had been in the house with her previous to that. The evidence as to the state of Monomohini''s mind is very vague: it is merely said that she is crazy; but the chief witness who gives evidence as to this is a Sub-Inspector of Schools who has never been posted in the Bahukud Circle and seems to have had little opportunity of forming an opinion. From the manner in which she has applied to be made guardian and her subsequent applications to be allowed to see the boy it would appear that she is by no means of weak intellect. As I have said before, she would ordinarily be the proper person to be appointed guardian of the person of the minor, being the paternal grand-mother. Further more it is quite evident from the will by which she was empowered to adopt a son to Nand Kumar on the failure of adoption by Sarojini, that Nand Kumar placed full confidence and trust in her and would have liked her to act as the mother of a boy adopted to him. She will live in Cuttack and be able to look after the boy and will have the advise and help of competent advisers. It is true that she is old but she may have many years to live yet and I have no doubt as to her competence. In my mind she is the right person to be appointed the guardian of the person of Krishna Kumar Bose, the minor. To ensure the welfare of the minor and his interest, it will be necessary that the boy be kept at school and be properly educated at the Raven Shaw College or some other good school and that he be put in the care of a tutor guardian for this purpose. If in the opinion of the District Judge the present tutor-guardian is no longer suitable owing to his want of sympathy with Monomohini Dasi, it will be necessary to dismiss him and appoint another tutor.

[His Lordship concluded by allowing the appeal of Mohomohini Dasi with costs and dismissing the other appeals.]

Sen, J.

Agreed.