Sultan Singh, J.
(1) This first appeal under Section 47 of the Guardians and Wards Act, 1890 (for short 'the Act, 1890) is directed against the Judgment and order of the District Judge. Delhi dated 19th November, 1979 dismissing the appellant's application under Section 25 of the Act for a declaration that she is the guardian of her minor son and for a direction to the respondents to give his custody to her.
(2) In her application filed on 14th January, 1975 S nt. Nirmal Jain has pleaded that she wag married to Vipan Kumar Jain on 5th February, 1965 at Delhi according to Hindu rites, that the marriage was consumated and a son was born on 9th November, 1968 who is named Ashu, that her husband died on 14th October, 1974 and at that time she was staying with her father at 68, Raja Park, Shakurbasti, Delhi, and that she was informed about his death after funeral ceremony. She has further pleaded that the respondent i.e. the mother, brothers and sisters of her deceased husband want to deprive her of the custody of her only son Ashu, that she is a teacher having sufficient income to maintain and educate her son, that her parents. and brothers who arc well settled also bear her personal expenses, that she is the natural guardian of her minor son and thereforee entitled to his custody, that the respondents in spite of intervention by common relations and friends have refused to deliver custody to her, that they do not allow her to see the minor since the death of her husband, that they wrongly reported to the school authorities where minor is studying that the mother of the minor was dead, that they have no right to deprive her of his custody and that it is in the interest of the minor if he returns to her custody, she being a natural guardian.
(3) In defense the respondents have pleaded that the application under section 25 of the Act, 1890 is not maintainable, that the appellant left her husband and minor son when he was only 10 months old, that she never came to see the child and her husband after 12th September, 1969, that she is unemployed and has no source of income and is unable to maintain even herself, that she was informed about the illness and death of her husband but she never came, that she is not entitled to the custody of the minor as he is being educated and maintained by them; that Anil Kumar respondent is employed as a Scientist in Cement Research Institute of India and getting Rs. 1141.00 per month, and that other respondents arc running a private educational school earning sufficient to maintain the minor.
(4) The District Judge held that the appellant after the death of her husband was both the natural and legal guardian of the child and as such the application under Section 25 of the Act, 1890 was maintainable. He however held that the appellant failed to prove that the return of the custody was for the welfare of the boy. The District Judge has observed that all modern facilities such as television, refrigerator and telephone available to the minor in the house of the respondents cannot be provided by the appellant, that she did not care to look after the minor when he was just an infant and that the appellant had deserted matrimonal home and no notice demanding the custody of the minor was sent by her.
(5) The appellant has claimed the custody of her minor son and has prayed for an order to be made declaring her to be the guardian of her minor son. These reliefs may be granted by the court, if it is satisfied that it is for the welfare of a minor that an order to that effect be made. Section 7, 17 and 25 of the Act, 1890 read as under : These sections provide that a person may be declared to be the guardian of the minor and his custody be delivered to such person if it is for the welfare of the minor.
(6) Sections 6 and 13 of the Hindu Minority and Guardianship Act, 1956 (for short the Act, 1956) read as under : Under Section 6 of the Act, 1956, mother is the natural guardian other son after the death of his father and under Section 13 of the Act, 1956 the welfare of the minor is the paramount consideration for declaring any person as guardian of a Hindu minor. Thus in the facts and circumstances of this case, it has to be determined whether it is for the welfare of the minor Ashu, the only son of the appellant, to declare her as his guardian and to make an order for his return to the appellant. Learned counsel for the parties have taken me through the entire evidence on record. Briefly, Shrimati Nirmal Jain, appellant appearing as Public Witness . I has deposed that her minor son Ashu was born on 9th November, 1968, that her husband Vipin Kumar Jain died on 14th October, 1974, that at the time of his death she was staying with her father at 68, Raja Park, Shakurbasti, Delhi and her minor son Aihu was at that time with his father and grand parents, that she was not in formed about the death of her husband but she came to know about it only after cremation and immediately thereafter she went to the house of parents-in-law but she was not allowed to stay there. She was asked to attend Tehrwi ceremony. She accordingly went there and asked the respondents to deliver custody of her minor ion but they refused. She was not even allowed to see the minor. She has further deposed that her father, other relations and members of Jain Sabha visited the respondents but they did not deliver the minor to her, that her husband left her at her father's house in 1969 and never came to see her thereafter, that when even she went to enquire about the health of her husband the respondents did not allow her entry in the house and she was used to be pushed down the stairs, that she had been writing letters to her husband which were intercepted by the respondent and were not delivered to him, that she has not re-married and has no such intention that she is employed as a teacher earning Rs. 350.00 per month, that her father was a pensioner and owner of immovable property with monthly rental income Rs. 5001-, that she has one married brother earning Rs. 475.00 per month while her brother's wile a teacher earns Rs. 2751- per month. In cross-examination she admits that she brought up the minor for nearly 10 months after birth and has not seen him since then that her relations with her husband were normal and thereforee she did not take any legal action against the respondents, that Kurnkum Jain and Nishi Jain respondents 6 and 7 used to push her down from the stairs, that she visited the respondents about five times. She has denied the suggestion that she deserted her husband, her minor son and matrimonial home. She has further deposed that respondents used to complain about dowry brought by her, that she had written nearly 40 letters to her husband. She has denied the suggestion that she was of immoral character. The appellant was again examined on 26th April, 1976. She has stated that her bank balance is Rs. 4183 43. She produced her pass book. She has also stated that she joined Education Department of U.P. in January, 1978.
(7) Suresh Chander Jain Public Witness . 2, brother of the appellant has deposed that he is drawing monthly salary Rs. 575.00 as a mechanic in the Indian Railways, that his wife is drawing a salary of Rs. 280.00 per month as teacher, that the appellant was brought toner father's house and left there in 1969 by her husband Vipin Kumar Jain and husband's brother Navin Kumar Jain and that her husband had stated at that lime that he was suffering from ulcer and would take her back after recovery. He has further stated that he went to the respondent's house after the death of his brother-in-law but he was not allowed entry in the house. Nothing material was stated by him in the cross-examination.
(8) Mahinder Kumar Jain Public Witness . 3 has deposed that the appellant's cider sister was married to him, that the appellant's husband Vipin Kumr Jain was the son of his maternal uncle, that the relations between the appellant and her husband were normal, that the appellant was left at her father's house by Vipin Kumar Jain and his brother in his presence saying that by her continued stay in his parent's house there were bickerings and that he would take her back after he recovered from illness. He has further deposed that he and the appellant went to the respondents to get the custody of the minor from them but they refused and sent her back with rude behavior. In cross-examination he denied the suggestion that the appellant herself went to her father's house and none took her to father's house, that Vipin Kumar Jain got his Ph.D. degree after the appellant had been left at the father's house and that the appellant is earning Rs. 350.00 per month as teacher.
(9) Vijender Kumar Jain Public Witness . 4 Joint Secretary of Shri Digamber Jain Sabha, Shakurbasti, New Delhi) has deposed that the appellant complained to him about non-delivery of the minor to her by the respondents, that seven persons went to the respondent's house in December) 1974 to get the minor child delivered to the appellant) that there were heated arguments between the parties and he along with others were booted while they were returning. In cross-examination it was denied that they had gone to snatch the minor from the respondents.
(10) Patch Chaiid Public Witness . 5 father of the appellant) has deposed that she was being ill treated by her parents-in-law. The appellant's husband could not hear the ill treatment and brought her to his house and left her there. The appellant's husband's brother had accompanied her at that time assuring that she would be taken back after improvement of the situation in his house. The appellant's father had accompanied the members of the Jain Sabha for getting the minor from the respondents but they refused to deliver his custody) and that they had even refused to show the child to the appellant and others. In cross-examination he says that trouble started when the respondents were asked to return the custody of the minor son to the appellant.
(11) Ram Chander R.W. I examined on 24th May) 1976 has deposed that the appellant had left her-in-law's house along with brother of her husband 7 or 8 years ago. In cross-examination he admits that the relations between the appellant and her husband were cordial.
(12) Dinesh Kumar Gupta R.W. 2 has deposed that he went to the appellant's father's house and informed them about her husband's death and that they felt very sad and were about to burst in tears.
(13) Gian Parkash R.W. 3 has deposed that the appellant's husband was his friend) that he had told him that the appellant was not happy with him) that the efforts to patch up the differences failed and that the appellant deserted her husband. In cross-examination he has deposed that the minor is living with the respondents that the three brothers and three sisters of the appellant's husband are unmarried while two sisters were already married.
(14) Anil Kumar R.W. 4 uncle of the minor has deposed that his two brothers and three sisters are living with their mother, that he was drawing Rs. 1300.00 per month, that his younger brother and Kurnkum Jain have been running a private school earning Rs. 2000.00 per month) that their house consists of five rooms with modern facilities i.e. television refrigerator and telephone etc. that the appellant had deserted her husband in 1969 and since then minor has been living with them, that they have been looking after his welfare, that the appellant left the minor when he was eight months old, and that the never came to see him thereafter. In cross-examination he admit that he joined the service in April, 1975, that his office is in Ballabgarh, that he did his Ph. D. in Structural Engineering and that he was not present when the appellant lef their house in 1969. He denied that the appellant was ever ill treated by the respondents. He does not know the alleged differenceg between the appellant and her husband. He admits that the respondents run the school and reside in tenanted premises.
(15) Kumari Kurnkum R.W. 5 respondent has deposed that her eldest brother is employed at Ballabgarh drawing Rs. 1300.00 per month and that the and other respondents are running school earning Rs. 2000.00 per month that the appellant had left matrimonial home in 1969, when the minor was 8 or 10 months old and since then she has not come to see the child, that she and her sisters and brothers brought up the minor and she does not know what the appellant is doing. In cross-examination she denied that the behavior with the appellant was not good or that his brother i.e. the appellant's husband left her at her father's house. She denied all suggestions in cross- examination regarding the facts deposed by the appellant and her witnesses. She however admits that the appellant's father along with others visited her house after the death of the minor's father but they had not come to take the minor.
(16) This is the only evidence on record. No documentary evidence was produced before the trial court. The earnings of the parties is based on oral depositions only. The respondents have been shown ignorance about appellant's employment as a teacher. The income of the appellant, her brother and brother's wife and her parents has not been challenged. The respondents are not possessed of any immovable property. There is no evidence that minor's father left any property. It appears that he and the respondents were running the private school.
(17) During the pendency of this appeal, the appellant, filed an application (C.M.N '.1503 of 1980) for permission to prove copies of letters written to her husband and aunt and also two letters received by her. She says that said letters were not filed to avoid mud slinging between the family members of her husband. Learned counsel submits that this is sufficient cause to prove the said documents under Order 41 rule 27 of the Code of Civil Procedure which reads as under : Various clauses of this rule arc not applicable to the facts of the present case. There is no sufficient cause for allowing the additional evidence in the form of letters. In State of UP. v. Manbodhan Lal Srivasatava, : (1958)IILLJ273SC it has been observed. It is well settled that addtitional evidence should not be permitted at the appellate, stage in order to enable one of the parties to remove certain lacunae in presenting its case at the proper stage, and to fill in gaps. Of course, the position is different where the appellate court itself requires certain evidence to be adduced in order to enable it to do justice between the partics. 'In Natha Singh & others v. The Financial Commissioner, Taxation Punjab & others, : 3SCR620 it has been observed, 'The true test to be applied in dealing with applications for additional evidence is whether the appellants court is able to pronounce judgment on the materials before it, without taking into consideration the additional evidence sought to be adduced.'
(18) In the instant case, I do not experience any difficulty in giving judgment on the material already on record. There is thus no substantial reason to allow the appellant to adduce additional evidence.
(19) The appellant filed another application (CM. No. 2846 of 1982) under Order 41 rule 27 of the Code of Civil Procedure alleging that her father Shri Patch Ghand had executed a Will dated 4th August, 1976 which is a registered document, that her father died on 21st September, 1981 during the pendency of this appeal. The Will had already been filed on the record of the trial court but was not proved as the executant of the Will was alive at that time. The appellant submitted that certain immovable property was bequeathed to her and her minor son under the Will. She thereforee sought premission to prove the Will and to take into consideration the contents of the Will while deciding this appeal. Subsequent fact arising after the filing of the appeal) it is well established, can be looked into to give appropriate relief. By order dated 15th September 1982 the Will was allowed to be proved. The two attesting witnesses to the Will i e. Krilhan Lal Kaira and Harnam Singh Sodhi were examined in this court on 20th October, 1982. No evidence was adduced on behalf of the respondents. These witnesses proved the execution of the Will and its attestation by them. Thus the Will dated 24th August, 1976 Ex. A. I on the record of the trial court stands duly proved.
(20) Under the Will father of the appellant has bequeathed certain portions of the property No. 68, Raja Park, Shakurbasti, Delhi to the appellant. The Will further mentions that her minor son after her death would have a right in her property if he were residing with her. In other words, the minor in this case would be entitled to immovable property detailed in the Will bequeathed to his mother-appellant only if he resides with her. If he does not reside with her he would lose his right in the said property under the Will. Thus if the minor remains in the custody of his mother-appellant he would acquire rights in the immovable property according to the Will. The minor, his father and respondents have no other immovable property.
(21) Learned counsel for the appellant submits that the trial court was not correct in holding that it was not for the welfare of the minor to give his custody to the appellant. He says that incapability, if any, of the appellant to provide the facilities of television, telephone and refrigerator to the minor, as held by the trial court, is no ground either for refusing the custody of the minor to her or for not declaring her as his guardian. He also submits that the minor was in the custody of his father, the natural guardian up to the time of his death and thereforee it is immaterial if the appellant had not taken any steps to secure custody other minor son, when she was living separately from her husband. Learned counsel further submits that there is no reliable evidence on record to hold that the appellant deserted matrimonial home. He also says that service of any notice demanding custody of the minor is not necessary. Learned counsel for the appellant submits that the appellant is entitled to an order declaring that she is the guardian of her minor son after the death of her husband. He further says that she is also entitled to his custody to the exclusion, of the respondents and that it would be for the welfare of the minor if such declaration is made and his custody is delivered to her.
(22) From the evidence of both the parties it is established that the appellant has been living with his father since 1969, that the minor lived with his father up to the time of his death in 1974, that the appellant was not allowed to see her minor son since the death of her husband, that attempts were made by the appellant, her father brother and members of Jain Sabha to get the custody of the minor restored to the appellant. The members of the Jain Sabha, appellant and others approached the respondents for custody but it appears that they were not heard at all by them. The relations between the appellant and her husband were cordial and not strained as admitted by Ram Chander, R.W. 1 besides other evidence on behalf of the appellant which I am of the opinion is natural and inspires confidence. Mahinder Kumar Jain, Public Witness . 3 is a common relation. His wife is the sister of the appellant. The deceased husband ofthe appellant was the son of his maternal lincle. Public Witness . 3 has also deposed about the respondent's rude behavior towards the members of Jain Sabha and others when they approached the respondents in this unfortunate affair of custody. It is admitted by Kurnkum Jain R.W. 5 that the appellant, her father along with others visited her house after the death of her brother.
(23) The desertion ofthe matrimonial home by the appellant has not been proved. Tn fact there is no reliable evidence to establish desertion. Navin Kumar Jain, respondent has not appeared as a witness to rebut the case ofthe appellant regarding her going to her father's house with him and with her husband. It was admitted by R.W. I that the appellant went to her father's house along with the brother of her husband. It appears that the relations between the appellant and her-in-laws became strained sometime after marriage on account of dowry. It is in evidence that Kurnkum Jain, respondent used to complain that the appellant had not brought any dowry. I am thereforee of the opinion that under these circumstances the appellant had to go to her father's house in 1 '69 at the suggestion of her husband, and the minor was kept by his father.
(24) The respondents arc unmarried and after their rnarriage they may not have love and affection for the minor. The probability is of the minor being neglected by the respondents. The appellant is the natural guardian of the minor, after the death of his father. Under Section 6 ofthe Act, 1956, during the life time of minor's father, mother cannot be his guardian. Minor was with his father throughout but after his death the preferential right to act as a guardian of the minor is that of the mother and not of his unlce, aunts or grand mother.
(25) It is established on record that there is not much difference in the financial status of the two families. The appellant, her brother, brother's wife are employed. Her mother has rental income. These facts have not been disputed by the respondents. The appellant's father made a Will on 24th August, 1976 Ex A. I which is registered and has been proved, as already observed. I he appellant has inherited property. The minor has been conferred rights in the property left by appellant's father if he resides with her. The respondents admittedly have no property of their own except salary income from running the private school.
(26) The facilities of televion, telephone and refrigerator available to the minor in the house of the respondents cannot be a ground to deprive the appellant from the custody of her only minor son after the death of his father. Even if it is assumed that the financial status of the respondents is better than that of the appellant, her brother and mother, it does not stand to reason that merely on account of botter financial status of a person other than natural guardian, the custody of a minor can be refused to the natural guardian. Had it been so, poor persons would not be able to retain the custody of their minor children, if for any reason, those children have remained with other relation? having better financial status. In the instant the trial court has taken into consideration the facilities available to the minor with the respondents. Those facilities are telephone, televisions and refrigerator. These are not necessaries to life. They may be called luxuries If the mother of the minor is not in a position to provide these facilities to the minor, I do not think that the custody can be refused on this ground alone to the appellant.
(27) The welfare of a minor is not to be measured by money The word 'welfare' must be taken in its widest sense. In Re. M. Grath (infants) 1893 (1) Chancery Division 143(148) it is observed, 'The dominant matter for the consideration of the court is the welfare of the child. But the welfare of the child is not to be measured by money only, nor by physical comfort only The word welfare must be taken in its widest sense. The normal and religious welfare of the child must be considered as well as as its physical wellbeing. or can the ties of affection be disregarded'. These obesrvations were followed in Raman Konderan v. Ayyappan Panchali : AIR1959Ker396 , Dr. Chanka Pulparampil and another v. Margarets Maria Pulparampil and mother, : AIR1973Ker100 , and C S. Roddy v. Smt. Yamuna Reddy, Air 1975 Karnataka 134. The principal consideration laid down in Section 17 of the Act, 1890 are age, sex and religion of the minor, the character and capa city of the proposed guardian, his nearness of km to the minor, relation of the proposed guardian with the minor or his property. Further the wishes of the minor may also be taken into consideration if he is old enough to form an intelligent preference. The court is further guided by the personal law of the minor while declaring the guardian of the minor.
(28) The minor who is now 14 years of age was examined by me He stated-that he had no time to meet his mother. Then he said that he did not Want to see his mother. He gave no reason, l am of the opinion that the minor though aged 14 years is not fit to form an intelligent preference which may be considered in deciding his welfare. The trial court has observed that minor refused to go with his mother. It was but natural for him not to recognise his mother when he had been in the custody of his father while his mother lived sepal ately from him. It is admitted that the mother had separated from his father when the minor was about 10 months old.
(29) (IT appears that the application for custody and for declaration as guardian was filed within about three months after the death of her husband. but the minor had never been allowed by the respondents to sec his mother It further appears to me that the minor is under the influence of the respondents. This is not good for him. A mother ordinarily cannot be deprived of the custody of her only son after the death of minor's father unless the minor can be benefitted substantially if some body else is appointed or declared as guardian. The claim for declartion fur appointment of natural guar dian under person law ought not to be disregarded except on good grounds According to Hindu law the natural guardian of the minor child is the father. In the next place the guardian of the child is the mother. The very principle of the guardianship is that there is a presumption that parents will be able to exercise good care in the welfare of their children if they do not happen to be unsuitable as guardians. In the instant case nothing has been proved against the habits or ways of living of the appellant. In short no good ground has been proved to hold that the appellant is unfit to act as guardian other only minor son.
(30) In Tumina Khatun v. GaharjanBibi : AIR1942Cal281 it has been observed that under Section 17 0f the Act, 1&90 normally a person under the personal law would be entitled to the custody of the childcrn in preference to anyone else and he should be appointed as guardian and it is only in exceptional circumstaiices that anyone else could be appointed. In Smt. Bhagbali Dei and another v. Muralidhar Sahu it has been observed that the principal matter to be considered in the matter of appointment of a guardian of the minor is the welfare of the infant, but no doubt the mother has a strong claim to be appointed as the guardian both of the person and of the property, and her claims ought not to be disregarded except on good grounds. In Mt. Halmian Khatoon v. Mt. Ahmedi Begum and other : AIR1949All627 it has been observed that one has to see who out of several applicants has a perferential right to be appointed a guardian of the minor under the personal law of the minor. If that person is unfit to be appointed as guardian, he will not be appointed. It has further been observed that if the considerations are not very weighty and there is merely a slight preference in favor of that other person, the guardian pointed out by the personal law of the minor should be preferred. In Mir Mohnmed Bahauddie v. Majee Bunnisa Begum Sahiba, : AIR1952Mad280 it has been observed that the paramount consideration in cases corning up under the Guardians and Wards Act appointment of guardian should be the welfare of the minor. But it must be as far as possible consistent with the personal law relating to the parties, the preferential right of any person to the guardianship under the personal law cannot be ignored unless he is totally unfit to be appointed as guardian and courts must necessarily consider his claims in preference to any other. Similar observations were made in Jumuna Prasad v. M st. Panna and others, 0065/1960 : AIR1960All285 and Smt. Dr. Snehlata Mathur v. Mahendra Narain, AlR. 1979 Raj 29. The welfare of the minor is the paramount consideration in deciding the question of custody under Section 25 of the Act, 1890. The Principal considerations or tests, in order to secure this welfare, are mentioned in Section 17 of the Act, 1890. These tests aie no doubt laid down under the said section but are equally applicable in considering the welfare of the minor under Section 25 of the Act. 1890. (See: Samuel Stephen Richard v. Stella Richard, : AIR1955Mad451 ).
(31) I am thereforee of the opinion that the appellant being the mother and natural guardian of her minor son is entitled to be declared as his guardian and nothing has been proved against her forholding her unfit to act as such. The uncles, aunis or grand mother of the minor cannot have preference over the rights of the mother i.e. the appellant. It will be for the welfare of the minor if his custody is restored to the appellant. The minor has moral as well as legal duty to look after his widow mother after he attains majority. This he can do only if he remains with the mother. He would also be entitled to rights in the immovable property referred to in the Will of the appellant's father, if he resides with her. The love and affection which the mother can give to her son cannot be bestowed upon him by anybody else. It is in excfptional circumstancfs that a mother can be deprived of the guardianship or the custody of her minor son after the death of the father of the minor. No exceptional circumstances have been proved. No adverse inference can be drawn against the appellant for not serving any notice demanding the custody of the minor from the respondent?. No law has been brought to my notice.
(32) The trial court was, thereforee, not correct in dismissing the appellant's application. The appeal is accepted setting aside the impugned judgment and order dated 19th November, 1979 of the trial court. The appellant is declared to be the guardian of the minor Ashu under Section 7 of the Guardian and Ward Act, 1890 and it is further declared that it will be for the welfare of the minor to return to the custody of the appellant. The respondents are directed to deliver the custody of the minor son Ashu to the appellant within two weeks failing which the said minor may be arrested in accordance with law and delivered into the custody of the appellant.
(33) Leave is granted to the appellant to seek further directions, if any, from the District Judge in this matter. Paitics are left to bear their own costs.