Sujata V. Manohar J.
1. The 1st petitioner is the mother of two minor children Bhagwan alias Bhruguraj and Nandraj. The 2nd petitioner is the brother of the 1st petitioner. The 1st petitioner Manjula was married to Dilip Jyotiprakash Boral on 7th July, 1974. Out of this marriage a son Bhagwan alias Bhruguraj born on 5th December, 1975 and another son Nandraj was born on 7th April, 1977. Since 1978 there have been disputes and differences between the 1st petitioner and her husband Dilip Jyotiprakash Boral. This resulted in criminal proceedings being taken by the husband against the 1st petitioner and a matrimonial petition being Petition No. 793 of 1978 being filed by the husband of the 1st petitioner against her in the City Civil Court at Bombay on the ground of adultery. The 1st petitioner had, in the same year 1978, filed a petition for guardianship for her minor children in this High Court, being Misc. Petition No. 556 of 1978. Thereafter she also filed a petition for dissolution of her marriage being M. J. Petition No. 306 of 1981 in which petition she cited Chandrika, the 2nd respondent herein, as a co-respondent. Ultimately consent terms were arrived at between the parties and a consent decree was taken on 24th April, 1981. Under the consent decree the marriage between the 1st petitioner and her husband was dissolved, and the custody of the elder child Bhagwan was given to the husband of the 1st petitioner while the custody of the younger child Nandraj was given to the 1st petitioner. Both the parties agreed that they would not demand at any time custody of the child which was given to the other party. In fact, since 1978 the custody of the elder child Bhagwan had been with the husband of the 1st petitioner while the custody of the 2nd child was with the 1st petitioner and this petition was accepted by both the parties under the said consent decree. Immediately after the consent decree was passed, the 1st petitioner applied for a passport and she thereafter left India. It seems that she applied for a passport in the name of MENKA NAREN NATHWANI and she mentioned in the passport application that she had been married to Naren Mathuradas Nathwani on 10-7-1976. From 1981 till 1983 the 1st petitioner remained outside India and she has been living with Naren Nathwani in U.K. During this period, the minor Nandraj remained in Bombay with the 2nd petitioner who is the brother of the 1st petitioner and the mother of the petitioners and he has been looked after by them. Some time in 1983 the 1st petitioner returned to Bombay where she has admittedly given birth to a baby girl. According to the 1st petitioner this is a daughter born to her out of her relationship with Naren Mathuradas Nathwani.
2. After the consent terms were arrived at between the parties and even prior thereto from the year 1978 the elder child Bhagwan was in the custody of Dilip Jyotiprakash Boral. The 2nd respondent, Chandrika, was engaged as a governess by Dilip Boral to look after the minor Bhagwan and it is the case of the 2nd respondent that she has throughout looked after the minor Bhagwan. She claims that under a Will dated 16th December, 1982 made by Dilip Boral she has been appointed as a testamentary guardian of the person and property of the minor Bhagwan. Under the said Will Dilip Boral has left all his properties to the minor Bhagwan. According to the 2nd respondent on 25th December, 1982 Dilip Boral and she were married at Calcutta. Thus she also claims to be the step mother of the minor Bhagwan. Dilip Boral was suffering from heart trouble and he died suddenly on 15th May, 1983 The petitioners have thereafter filed the present petition for being appointed as the guardian of the minor Bhagwan alias Bhruguraj and also for being appointed as the guardians of the property of the minors Bhagwan alias Bhruguraj and Nandraj. The two minors would have a share in the properties left by their deceased father. Even under the so called Will of the deceased father, at least one of the minors Bhagwan alias Bhruguraj inherits the entire property of his deceased father. Hence the petitioners have prayed for guardianship of the person of Bhagwan as well as properties of both the said minors.
3. This petition is being opposed by the 2nd respondent Chandrika. She has staked her claim to the guardianship of the minor Bhagwan on these grounds : (1) that she is the testamentary guardian so appointed by the deceased father of the minor Bhagwan under his Will dated 16-12-1982. (2) She is the step-mother of the minor Bhagwan who has looked after the minor right from the year 1978, and who, in these circumstances, is a fit person to be appointed as a guardian of the minor Bhagwan alias Bhruguraj. (3) she has also submitted that the minor Bhagwan is very much attached to her and it is in the interest of the minor that she should continue to look after the minor.
4. She has submitted that the 1st petitioner is not a fit person to be appointed as a guardian of the person of the minor Bhagwan. Undoubtedly, the conduct of the 1st petitioner leaves much to be desired. She has not denied the allegations of adultery made against her. She has not denied that she applied for a passport setting out that she was married to Naren Mathuradas Nathwani in 1976 while at the relevant time she was admittedly married to Dilip Boral, She has also admitted that she has given birth to a baby girl out of her relationship with the said Naren Nathwani. In connection with her relationship with Naren Nathwani the wife of Naren Nathwani has filed a criminal complaint and initially a bailable warrant had been issued against the 1st petitioner and thereafter, since she did not remain present in Court, a non-bailable warrant was issued. She is now released on bail. This complaint relates to adultery. She also remained away from her minor son Nandraj from 1981 to 1983. The second respondent has submitted that the conduct of the 1st petitioner is such that she is unfit to be appointed as a guardian of her minor son Bhagwan.
5. In the present proceedings the wife of Naren Mathuradas Nathwani viz., Jayshree made an application through an Advocate to be allowed to intervene. This was an oral application. The Advocate claiming to appear for Jayshree did not submit any written application or vakalatnama. The dispute between Jayshree and her husband as also the petitioner, are not relevant to the present proceedings. In these circumstances, I rejected the application made on behalf of Jayshree to be allowed to intervene in the present proceedings. In any event there is no doubt that the 1st petitioner has been living with Naren Nathwani and has given birth to a baby girl fathered by Naren Nathwani. There is also little room for doubt that for the last 2 years the 1st petitioner as remained out of India while the minor Nandraj whose custody was given to the 1st petitioner, was looked after in Bombay by the mother and brother of the 1st petitioner.
6. What requires consideration is whether these circumstances are such as to make the 1st petitioner unfit to be appointed as guardian of the minor son Bhagwan. The conduct of the 1st petitioner has to be viewed against the circumstances of the present case. The father of the minor Bhagwan who had looked after the minor since birth is now dead. Apart from his mother and his mother's family the minor Bhagwan today has no close relatives on his father's side who have come forward to look after him. The 2nd respondent was appointed initially as a governess by the father of the minor to look after him. I will assume in her favour that she has looked after minor Bhagwan properly uptil now and will also assume that the minor Bhagwan is also attached to her, as children are wont to be when they are properly looked after by anybody. But that circumstances by itself, in my view, is not sufficient to deprive the mother of the child of the custody of her minor son. The moral conduct of the mother may leave much to be desired. There is, however, no reason to presume that this has caused a diminution in her love and affection for her minor son. It is true that from 1981 to 1983 she had left the other minor son Nandraj with her mother and brother. But she has stated that she made attempts to obtain a passport for her minor son Nandraj but a passport has not been issued in the name of her minor son, Nandraj on account of difficulties created by the wife of Naren Nathwani. Be that as it may, since the minor Bhagwan has no other relation (apart from the 2nd respondent if she is considered as his step-mother) except his mother. In the circumstances of the case, in my view it will be in the interest of the minor Bhagwan, if his mother, viz. the 1st petitioner is appointed as guardian of the person of the minor Bhagwan.
7. The 2nd respondent's claim as a testamentary guardian and as a step mother is to be examined in this context. So far, the Will left by the deceased Dilip Boral has not been probated. Learned Counsel for the 2nd respondent has stated that steps are being taken to get the Will probated. The petitioner have submitted that the Will is not a genuine one and the signature on the Will is not of Dilip Boral. They have further submitted that the 2nd respondent cannot stake her claim as a testamentary guardian under the provisions of section 213 of the Indian Succession Act since her rights flow from the Will which has yet to be probated. Nevertheless for the purpose of the present petition I cannot ignore the claim of the 2nd respondent as a testamentary guardian.
8. The present petition is filed under the Guardians & Wards Act, 1890. Under section 7 of the Guardians & Wards Act, it is provided as follows :
'7, Power of the Court to make order as to guardianship.---
1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made---
a) appointing a guardian of his person or property or both, or,
b) declaring a person to be such a guardian, the Court may make an order accordingly
2) An order under this section shall imply the removal of any guardian who has not been appointed by Will or other instrument or appointed or declared by the Court.
3) Where a guardian has been appointed by Will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.'
Thus an order appointing a guardian cannot be made until the powers of the testamentary guardian have ceased. It is, therefore, necessary to examine whether the 2nd respondent is validly and effectively appointed as a testamentary guardian.
9. The deceased husband of the 1st petitioner was a Hindu. His power to appoint a testamentary guardian of his minor son is governed by the provisions of the Hindu Minority and Guardianship Act, 1956. Section 9(1) and (2) of the Hindu Minority and Guardianship Act provides as follows :
'9(1) A Hindu father entitled to act as the natural guardian of his minor legitimate children may, by Will, appoint a guardian for any of them in respect of the minor's person, in respect of the minor's property (other than the undivided interest referred to in section 12) or in respect of both.
2) An appointment made under sub-section (1) shall have no effect if the father predeceases the mother, but shall revive if the mother dies without appointing, by Will any person as guardian.'
Thus, any appointment of a testamentary guardian by a Hindu father by a Will has no effect if the father predeceases the mother. In other words, so long as the mother of the minor is alive, her right to guardianship of a minor's person and property cannot be displaced by a testamentary guardian. And the appointment of a testamentary guardian is ineffective during the mother's life time. In the present case, therefore, the appointment of the 2nd respondent as a testamentary guardian under the Will of Dilip Boral is ineffective during the life time of the 1st petitioner. Since there is no effective appointment of a testamentary guardian in the present case, the provisions of section 7(3) of the Guardians & Wards Act are not attracted and it is open to me to appoint 1st petitioner as a guardian of her minor son Bhagwan, if otherwise her claim is justified.
10. The 2nd respondent has also claimed a right to guardianship as the step-mother of the minor Bhagwan who has looked after him from 1978 up-to date. She claims to have married Dilip Boral a few days after the making of the Will. In the Will however, she is referred to as the governess of the minor and there is no reference to any impending marriage. She has relied upon a certificate given by a priest who claims to have performed the marriage ceremony. But no affidavit is filed by the priest. Though the certificate mentions the 1st respondent as one of the witnesses to the marriage, the 1st respondent has also not filed any affidavit. Hence the claim of the 2nd respondent as a step-mother has to be viewed with some caution, in any case, as a step-mother she cannot be preferred to the natural mother.
11. As maintained earlier, the conduct of the natural mother can hardly be described as unblemished. During the last two years she did leave her minor son Nandraj in the custody of her mother and brother. But she claims that her attempts to take him abroad were unsuccessful as his passport was not issued . Anyway, there is nothing on record to indicate that the minor was neglected by her mother and brother in her absence, in these circumstances the conduct of the 1st petitioner qua her children is not such as to disqualify her from being appointed as their guardian, especially when no suitable alternative guardian is available.
12. In the present petition, the 1st petitioner along with her brother the 2nd petitioner has also applied for being appointed as guardian of the property of the two minors Bhagwan and Nandraj. Mr. Girish Desai, learned Counsel for the petitioners, however, submitted before me that the petitioners do not desire to be appointed as guardians of the property of the minors and that an officer of the Court should be appointed as the guardian of the property of the two minors. The 2nd respondent has submitted that under the Will of the deceased Dilip Boral she has also been appointed as guardian of the property of the minor Bhagwan and she should be continued as such guardian. The appointment of the 2nd respondent as the guardian of the property of the minor Bhagwan is at present ineffective as the 1st petitioner is alive. There is also a possibility of conflict between the interests of the 2nd respondent and the minor Bhagwan in . The in this connection. Under the Will of the deceased Boral his entire property has been left to the minor. If the 2nd respondent claims to be the lawfully wedded wife of the deceased Boral, she would be entitled to maintenance out of the estate of the deceased Boral. In the event of the Will not being probated it would also be open to her to claim a share in the estate, as an heir of the deceased since she claims to be his lawfully wedded wife . There is also a conflict of interests between the 2nd respondent, whether she claims under the Will or otherwise, and the interest of the minor Nandraj in the estate of the deceased. In these circumstances, in my view, it would be in the interest of the two minors if an officer of the Court is appointed as guardian of the property of the two minors until further orders. Accordingly, I pass the following order :
The 1st petitioner is appointed as the guardian of the person of the minor Bhagwan alias Bhruguraj. The 1st petitioner will not leave India and /or take the minors Bhagwan alias Bhruguraj and / or Nandraj out of India without the permission of the Court.
The Indian Council of Social Welfare to submit to this Court a report every 6 months relating to the well-being of the two minor children who have been placed in guardianship with the 1st petitioner. These reports will be submitted for a period of two years from today.
Mr. K.N. Trivedi, the Chamber Registrar of this High Court is appointed guardian of the property of the minors Bhagwan alias Bhruguraj and Nandraj until further orders. As such guardian he will have all powers and obligations as specified under the Guardians and Wards Act, 1890. The guardians, however, will not create any tenancy and /or licence or any third party interest in respect of the flat situated at 8, Apana Nagar, Colaba, Bombay 400005 without the permission of the Court.
The 1st petitioner to deposit in Court initially a sum of Rs. 600/- towards the cost of the Indian Council of Social Welfare for making of the said report and the 1st petitioner undersea to deposit in Court such further amounts toward the costs of the Indian Council of Social Welfare as she may be directed from time to time.
The second respondent to pay to the petitioners costs of the petition.
Learned Advocate for the 2nd respondent applies that the 2nd respondent should be given time of 4 weeks for handing over the custody of the minor Bhagwan to the 1st petitioner pursuant to this order. Accordingly, the 2nd respondent is directed to hand over custody of the minor Bhagwan to the 1st petitioner on or before 18th October, 1983. During this period of 4 weeks the 1st petitioner will have access to the minor Bhagwan in the following manner :
She will be entitled to see the minor Bhagwan at the flat at 8, Apana Nagar, Colaba, Bombay 400 005 every Saturday and Sunday from 10 a.m. till 6 p.m. She will be entitled to be accompanied, if the so desires, by the 2nd petitioner and/or the mother of the petitioner.
Ad interim order will continue upto 18th October, 1983.
At the hearing of this petition an engrossed Will dated 16th December, 1982 signed twice by the deceased Dilip Boral and signed by two witnesses was produced in Court. A duplicate Will on ordinary paper signed once by the deceased Dilip Boral and two witnesses was also produced in Court. I had directed that the Will on engrossed paper should be kept in Court pending the disposal of the petition. The duplicate Will was also in the Court. The engrossed Will as well as the duplicate Will are directed to be returned to the 2nd respondent after they are initialled by the Chamber Registrar.