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Mazhar Ali Khan Vs. Mt. Kulsum Begam - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Reported inAIR1940All315
AppellantMazhar Ali Khan
RespondentMt. Kulsum Begam
Excerpt:
- - on the other hand, the learned judge has pointed out that the applicant's brother owed money under a decree to the minor and that he bad not discharged his liability. a court which has jurisdiction under the guardians and wards act can remove a guardian as well as appoint him. there can be no doubt that it would be most unsafe to appoint mazhar ali khan to the guardianship of this girl......and had an interest adverse to hers in respect of property inherited from the minor's father. the learned judge has disbelieved the evidence of ill-treatment. he thinks that want of education is no sufficient reason to take the girl out of the custody of her mother and on that point i agree with him. the allegation that the interests of the minor and her mother were adverse was based upon the fact that the mother had instituted a suit for recovery of her dower debt and had obtained a decree. the minor was naturally a necessary party to such a suit. so, i suppose, was the applicant who was the brother of the minor's father. the decree having been obtained there was no further reason for supposing that there was any dispute between the minor and her mother about any property. on the other.....
Judgment:

Allsop, J.

1. This is an appeal against an order of the learned District Judge of Shahjahanpur rejecting an application by the appellant, Mazhar Ali Khan, to be appointed guardian of the person and property of his niece, Mt. Riyazi Begam, a minor girl, aged 13 years in 1937. The minor was in the custody of her mother, Mt. Kulsum. The applicant alleged that Mt. Kulsum had been ill-treating the minor, had not educated her and had an interest adverse to hers in respect of property inherited from the minor's father. The learned Judge has disbelieved the evidence of ill-treatment. He thinks that want of education is no sufficient reason to take the girl out of the custody of her mother and on that point I agree with him. The allegation that the interests of the minor and her mother were adverse was based upon the fact that the mother had instituted a suit for recovery of her dower debt and had obtained a decree. The minor was naturally a necessary party to such a suit. So, I suppose, was the applicant who was the brother of the minor's father. The decree having been obtained there was no further reason for supposing that there was any dispute between the minor and her mother about any property. On the other hand, the learned Judge has pointed out that the applicant's brother owed money under a decree to the minor and that he bad not discharged his liability. There was obviously a danger that the applicant might not take steps to recover this money on the minor's behalf. There is certainly no reason for thinking that the learned Judge was wrong in refusing to appoint the applicant guardian of the minor's person and property. It has been urged that security should have been demanded from Mt. Kulsum, the mother, but the answer to this is that the learned Judge has not appointed Mt. Kulsum guardian of the minor's person or property. He has merely said that his reason for rejecting the application was that Mt. Kulsum was the proper person to have control of the minor.

2. Learned counsel urged that some guardian should be appointed in order that there may be some person who is answerable to the Court for the minor's property. If the applicant feels strongly upon that point, there is nothing to prevent him, that I can see, from making another application to the Court that the mother should be appointed guardian of the minor's person and property and that, if she refuses to accept the guardianship of the property, some other person may be appointed under any terms which the Court may impose.

3. Learned counsel has taken the point that the applicant's application was, in the first instance, granted ex parte and that the ex parte order was afterwards set aside. He suggests that the Court had no jurisdiction to set aside the ex parte order. A Court which has jurisdiction under the Guardians and Wards Act can remove a guardian as well as appoint him. No appeal has been instituted against the order setting aside the previous appointment. Learned counsel suggests that this was not strictly an order removing the guardian but was in the nature of an interlocutory order setting aside the ex parte order which had been passed. His point is that there was no appeal against this order. I do not think technicalities of the case matter a great deal. The only thing which is to be considered is the welfare of the minor. The District Judge could have set aside the previous order appointing Mazhar Ali Khan in proper form by removing him from the guardianship so that the ultimate result would have been the same on the merits. There can be no doubt that it would be most unsafe to appoint Mazhar Ali Khan to the guardianship of this girl. There is no force in this appeal and I dismiss it with costs.


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