Surejdevi Dullabhai Sanghavi vs Prabhashankar Harchand Parekh

Chhatpar, J.—This is an appeal u/s 47, Guardians & Wards Act from an order of the Dist. J. appointing the reap, as the guardian of the persons & property of a minor boy & two minor girls. The minors are the sons of one Balvantrai Prabhashanker Parekh, who was the son of the resp. & husband of the present applt. Balvantrai Prabhashanker died about 7 years back leaving the applt. his widow and the three minor children named Satischandra, Rohni & Niti. At the time of his death he was separate from his father, the resp. & was carrying on business at Bombay. After his death, his widow, the applt. & her minor children began to reaide with the resp. at Rajkot. The parties lived together in peace for some time. Some time before the appln. for guardianship was filed, the applt. left the protection of her father-in-law & went to Junagadh & began to reside openly as a wife of Babulal Pranshanker Parekh who is a son of the brother of resp. Prabhashanker. The resp. thereupon filed an appln. for appointing him as the guardian of the persona & property of the three minor children. Some interim orders were passed in the proceedings according to which the custody of the persons & property of the minors was at first given to the reap. & one Maneklal Oza & thereafter to the applt; but no final settlement was made & the matter was to be proceeded with. The parties & their witnesses had filed their affidavits & they were to be cross-examined. The matter was ultimately adjourned & fixed for hearing on 13-3-60 for such cross-examination. The resp. who had applied for being appointed the guardian of the person & the property of the minors had only filed an affidavit. He had not been examined by the Ct. at all. On 13-3-50, it is alleged that both the parties & their advocates expressed a desire that it was in the interests of the minors not to cross-examine the parties & the witnesses, as it was apprehended that the relations between the parties would deteriorate & ultimately the interests of the minors would be prejudiced. It seems on that day a memo, under the signature of the learned Dist. J. was drawn up, which is reproduced below:

Patties do not wish to adduce further evidence. Both parties agree that the appct. should be appointed guardian for the person & property of the 3 minors. The minor girls to be kept in recognised institutions in Saurashtra in which girls are admitted for education & residence. During the vacation they should stay with the guardian. The guardian should take permission about placing the girls in such institutions. The guardian should keep account of the property of the minors. The income to be spent for the upkeep & education of the 3 minors. None of them to be betrothed or married without the permission of the Ct. If there is extra costs for the minors, the guardian, to bear it to the extent of Rs. 300 per year. The minors may be allowed to be visited by their mother Susajbai after obtaining permission of this Ct.

In case there arises difficulties for admitting the girls to any institutions or for any other reasons, the Ct. will give necessary directions for the persons.

The minors'' ornaments to be kept in fact. They are not to be disposed of without Ct''s written permission.

As regards golden ornaments, Articles Nos. 2 to 9, parties are at liberty to adduce evidence as regards their ownership.

They are to be kept in Ct. in the meanwhile. Rajkot 13-3-50. Sd. P.P. Anada Dist. J.

On 16.3-1950, the Dist. J. passed an order which in substance incorporates what is contained in this memo. & appointed the resp. as the guardian of the persons & the property of the three minors. In the order no evidence was discussed & it appears to me quite clear that this was an order made upon the memo, which is said to have been agreed to by both the parties. In short, the Dist. J. has passed an order in terms of an alleged compromise arrived at between the patties & appointed the resp. as the guardian of the persons & the property of the minors. On the very next day, the applt, filed an appln. wherein she alleged that she had agreed merely to a temporary arrangement of the custody of the minors being given to the resp. & that she had never given her consent that the appln. was to be finally disposed of as stated in the final order of the Dist. J. She further stated that it was given to her to understand that the case would proceed & the final order would be passed thereafter. She consequently prayed that the order be reviewed. On this appln., it seems, a Chamber order waa passed without hearing the applt. The order reads as under:

This is no ground for review. 17-3-1950. Sd. Popatlal P. Anada, Dist. J., C.S. Division.

The applt. has now come in appeal. Two legal grounds inter alia have been urged by the learned Advocate for the applt. viz., (1) that the order of the learned Dist. J. is illegal as the learned Judge had not examined the resp. & satisfied himself as to his fitness as guardian & (2) that the question of guardianship cannot be the subject matter of a compromise between the parties to the litigation & that the order of the Dist. J, was there. fore bad in law, as law imposes upon the Dist. J. a duty to come to the conclusion independently whether it is necessary to appoint a guardian for the persons & the property of the minors for the welfare of the minors & whether the proposed guardian is a suitable person. I have heard the learned Advocates for the applt. & the respt. & I am of the opinion that the two grounds of objection are well founded. The H.C. of the Saurashtra has framed rules u/s 50, Guardians & Wards Act, Rul 4 of which reads as under:

Where the appln. ia not opposed the Ct. may in its discretion, proceed upon affidavits but shall in all cases except for reason to be recorded, examine the appct. & the proposed guardian if the latter is not the appct. as to the age of the minor & the competency & fitness of the proposed guardian & as to the necessity of the proposed appointment.

This is a mandatory rule provided in the interests of the minors & imposes on the Judge a duty to satisfy himself inter alia as to the suitability of the guardian by examining himself. This has admittedly not been done in the present case. The resp. had only filed an affidavit & he was still to be examined in Ct. The learned Advocate for the applt. states that very serious allegations as regards the character of the resp. are made to show that he is not a suitable person to be entrusted with the custody of the persons & the property of the minors. The Dist. J. has not stated anywhere in his order that he has satisfied himself that the resp. is a fit person to be appointed guardian.

AS regards the second objection the proposition that the question of guardianship cannot be the subject-matter of a compromise, is not seriously disputed by the learned Advocate for the resp. but he has tried to show that the matter was fully heard & a good part of the evidence was already before the Dist. J. & although the Dist. J. has not discussed the evidence at all, be should be presumed to have considered it & his order should be construed as an ordinary judgment on the merits of the case & not an order in terms of a compromise arrived at between the parties. I am unable to accept this contention. It is quite clear that the order is substantially the same as the memo, reproduced above. The learned Judge states in his order : "The parties & their Advocates agreed & requested this Ct. to pass orders containing the spirits of this memo." It is clearly on order based upon compromise. In the case of Mt. Hassanbi v. Nek Alam AIR 1940 Lah 9, it was observed as under:

The main ground of attack is that the real point at issue in the case was not brought out or considered by the Ct. below & that the decision by way of compromise was illegal & ultra vires. Is seems to me that there is considerable force in this objection. What the Ct. had to consider was the welfare of the minors on evidence produced before it & not to pass judgment in accordance with the terms of a compromise It was the duty of the Ct. to consider whether or not the compromise was in the interests of the minors & there is nothing in the judgment of the Ct. below to indicate that this aspect which is after all the overriding consideration in such cases, was considered by the Ct at all. It is dear law that the minor is entitled to the judgment of the Ct. on this crucial matter. In making an order in the terms of a compromise the Ct. has virtually handed over its functions of judgment to the contesting parties. In Ma Nagwe Nyun v. Ma Thwe AIR 1928 Rang. 137 it has been hold that the selection of a guardian by. arbitrators is illegal & that it is for the Ct. & not the arbitrators, to be satisfied that his for the welfare of a minor that a guardian should be appointed & if to be appointed who that person should be. The State is the guardian of all its minor subjects & the question of guardianship is not one of the private civil rights of any private person which he is by law allowed to submit to arbitration. See in this connection Mahadeo Prasad v. Bindeshari 30 All. 137 and Sami Chetiy v. Adaikalam AIR 1921 Mad. 484. If such a matter could not be settled by arbitrators appointed by the contesting appcts. for guardianship, it could no more be settled by an agreement by such persons. This appears to roe to be a fatal objection to the procedure adopted by the learned Guardian Judge and therefore to the order under appeal.

The Learned Advocate for the resp. has reld. upon the case of Mt. Khundi Devi v. Chotey Lal AIR 1922 ALL. 338, wherein it is held that the Dist. J. who exercises a parental jurisdiction in proceedings under the Guardians and Wards Act, cannot be expected to observe the formality and precision of procedure laid down by the Civil P.C. to be followed by the Ct. in the trial of ordinary suits. But that case is clearly distinguishable from the present case, as in that case the Dist, J. had taken into consideration a report called for by him from a Tehsildar under the control of the Collector. In the present case the irregularity is very serious. There is in fact no judgment of the Dist. J. on the points required by him to be decided in the appln. for the appointment of a guardian. His order clearly reads as an order passed on a compromise between the parties.

In view of the above, I set aside the order of the Dist. J. appointing the resp. as the guardian of the persons & property of the minors & remand this case for trial in accordance with law to the Dist. J. Costs to abide by the result of the case.