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Raichand Nethaji Vs. Sayar Bai and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Case NumberO.P. No. 209 of 1964
Judge
Reported inAIR1966Mad173; (1965)2MLJ168
ActsGuardians and Wards Act - Sections 7 and 10; Hindu Minority and Guardianship Act, 1956 - Sections 13 and 13(2)
AppellantRaichand Nethaji
RespondentSayar Bai and anr.
Cases ReferredIn Chinna Alagamperumal v. Vinayagathammal
Excerpt:
- - (7) in considering the welfare of a minor, the court will consider the wishes of the minor, if she is of sufficient age to form an intelligent preference......for appointing the petitioner as guardian of his minor daughter-in-law chandra bai, aged 16 years. minor chandra bai was married to the petitioner's son r. mangilal mehta. the said mangilal mehta died on 24th may 1964 as a result of an explosion in a godown in govindappa naicken street, on 19th may 1964. he had taken a multiple risk policy with the life insurance corporation of india on 28th march 1964 on his life. the petitioner's case is that he is entitled to be appointed as guardian of the minor under the hindu minority and guardianship act of 1956.(2) this application is opposed by srimathi sayar bai, the mother of minor chandra bai and also by udairaj gulecha, a cousin of minor chandra bai. neither side adduced oral evidence in this case. in fact the petitioner was not even present.....
Judgment:
ORDER

1. Petition under Ss. 7 and 10 of the Guardians and Wards Act for appointing the petitioner as guardian of his minor daughter-in-law Chandra Bai, aged 16 years. Minor Chandra Bai was married to the petitioner's son R. Mangilal Mehta. The said Mangilal Mehta died on 24th May 1964 as a result of an explosion in a godown in Govindappa Naicken Street, on 19th May 1964. He had taken a multiple risk policy with the Life Insurance Corporation of India on 28th March 1964 on his life. The petitioner's case is that he is entitled to be appointed as guardian of the minor under the Hindu Minority and Guardianship Act of 1956.

(2) This application is opposed by Srimathi Sayar Bai, the mother of minor Chandra Bai and also by Udairaj Gulecha, a cousin of minor Chandra Bai. Neither side adduced oral evidence in this case. In fact the petitioner was not even present in court and I was therefore unable to put questions to him in respect of the several allegations made against him in para 10 of the counter of Udairaj Gulecha.

(3) The learned advocate for the petitioner relied on the statement in Principles of Hindu law, Mullah, 12th Edn., page 619, para 443, that after the husband's death, the guardianship of the wife, if she is a minor, devolves on the husdand's relation in preference to her paternal relations. But it is stated in the same paragraph that it has been held in a Madras case that in default of the husband no other person is entitled to act as guardian de jure of the minor wife. In Chinna Alagamperumal v. Vinayagathammal, 1929 55 MLJ 861: AIR 1929 Mad 110 it was held by a Bench of this court that the husband is the legal guardian of his minor wife and if he happens to die during her minority, his nearest sapinda will be her guardian and not her paternal relations. Under S. 13 of the Hindu Minority and Guardianship Act, in the appointment of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration. Under S. 13(2) of the Act, no person shall be entitled to the guardianship by virtue of the provisions of the Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor. Thus the welfare of the minor would always prevail when it conflicts with other considerations. Thus the fact that under Hindu law the petitioner has preferential right to be appointed as guardian is only a matter of secondary consideration which should give place to the primary and paramount consideration, namely, the welfare of the minor. There are several circumstances to show that it is against the welfare of the minor Chandra Bai to appoint the petitioner as guardian of her property.

(4) It is admitted in the counter of the respondent Udhairaj Golecha that the petitioner is a sickly old man of 85 years and of unsound mind. But the petitioner has stated in his reply affidavit that he is only aged 75 years and not 85 years, that he is not mentally unsound or sickly, and that he is looking after his business. As the petitioner did not appear in person, I could not verify whether he is really physically and mentally sound.

(5) The contention of the respondent is that the petitioner is in wrongful possession of the jewels of the minor Chandra Bai. But the petitioner has stated in his reply affidavit that Chandra Bai has taken away the jewels which she was wearing and that the rest of the jewels are in the almirah. It is not possible to disqualify the petitioner from being appointed as property guardian of minor Chandra Bai, merely on account of the dispute about the jewels. But there can be no doubt in the case that the interest of the petitioner is adverse to that of his minor daughter-in-law Chandra Bai. The petitioner's case is that his wife is entitled to half the insurance amount as one of the heirs of his deceased son, and that minor Chandra Bai is entitled only to the other half share. But the contention of Srimathi Sayar Bai in her counter is that the insurance policy was taken out by the decreased R. Mangilal Mehta only for the benefit of minor Chandra Bai and hence he nominated minor Chandra Bai to receive the insurance amount and appointed Udairaj Gulecha as guardian of minor Chandra Bai to receive the amount in case he predeceased her. Even in his reply affidavit the petitioner has put forward the contention that the nominee of a policy is only a collecting agent. It is unnecessary in this petition to determine the question whether the petitioner's wife is entitled to half the insurance amount and whether minor Chandra Bai is entitled only to the other half the insurance amount and not the entire amount claimed by her. But there can be no doubt that the petitioner is interested in supporting the claim of his wife to a half share in the insurance amount and therefore his interest is adverse to that of the minor Chandra Bai. It is therefore not desirable to appoint the petitioner as guardian of minor Chandra Bai.

(6) One significant circumstance to be noted in this case is that the deceased R. Mangilal Mehta himself has appointed Udairaj Gulecha as guardian of the minor Chandra Bai by describing him as brother and guardian of minor Chandra Bai in the insurance policy. I am unable to accept the contention, of the learned advocate for the petitioner that Udairaj Gulecha had put himself as guardian in the insurance policy, and that the deceased R. Mangilal Mehta was not aware of it, as he did not know English. It is true that Udairaj Gulecha is only paternal uncle's son and not brother of minor Chandra Bai as described in the insurance policy. But it is significant to note that when I examined minor Chandra Bai in court she referred to Udairaj Gulecha as her brother and it is only when I further questioned her whether he is her own brother, she explained the relationship by stating that he is her paternal uncle's son.

(7) In considering the welfare of a minor, the court will consider the wishes of the minor, if she is of sufficient age to form an intelligent preference. Minor Chandra Bai is more than 16 years old and she expressed her wishes that her brother Udairaj Gulecha who has been appointed as guardian by her husband should manage the properties in preference to her father-in-law. In fact she is afraid to go to her father-in-law's house, as she was ill-treated by her mother-in-law. Udairaj Gulecha is a junior advocate of this Court and he is in every way suitable person to be appointed as guardian of property of minor Chandra Bai. Srimathi Sayar Bai, the mother of minor Chandra Bai, has stated both in her counter and in person that she is willing to act as guardian of the minor, if this Court for any reason is not inclined to appoint Udairaj Gulecha as guardian of minor Chandra Bai. Minor Chandra Bai is living under the protection of her mother and it is therefore not necessary to appoint any guardian of the person of the minor Chandra Bai.

(8) For the foregoing reasons, I appoint Udairaj Gulecha as guardian of property of minor Chandra Bai on his furnishing security for the insurance amount.

JI/KBK/R.G.D.

(9) Order accordingly.


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