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Parvathi Ammal Vs. Elayaperumal Konar - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1922Mad70; 66Ind.Cas.216
AppellantParvathi Ammal
RespondentElayaperumal Konar
Excerpt:
guardians and wards act (viii of 1880), section 7 (3) - 'will,' meaning of--court, power of, to appoint guardian of minor. - - but in other cases, that is to say, in the aase of the appointment of a guardian by an oral testament, it would seem to be open to the court to ignore this appointment and make statutory appointment of its own if it considers best in the interests of the minor. the leaned vakil for the appellant has drawn our attention to an allegation by his client that respondent the father, dishonestly and fraudulently obtains a sale deed and a othi dead in his own name and not in that of the minor and has complained that the district judges has not taken evidence on the allegation......the mother of the child who is said to have bequeathed the property in question to the child. the district judge has not enquired into the fact of this appointment of the appellant and we think he is justified in refusing to do so provided ha finds, as he seems to do, that the appointment of the father as guardian is for the benefit of the minor. our attention has been drawn to sections 6 and 7 of the guardians and wards act and in particular to clause (3) of section 7 which says: '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.....
Judgment:

1. The respondent in this case is the father of a minor girl and has, at his own request, been appointed statutory guardian of her person and property under Guardians and Wards Act. This order is appealed against by the child's maternal aunt who alleges that she was appointed guardian by an oral Will by the mother of the child who is said to have bequeathed the property in question to the child. The District Judge has not enquired into the fact of this appointment of the appellant and we think he is justified in refusing to do so provided ha finds, as he seems to do, that the appointment of the father as guardian is for the benefit of the minor. Our attention has been drawn to sections 6 and 7 of the Guardians and Wards Act and in particular to Clause (3) of Section 7 which says: '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.' We think that the word 'Will' in this section which occurs in such intimate collection with the words or other instrument' must be interpreted as meaning a written Will; and it is only in such a case that the appointment of a testamentary guardian stands in the way of the appointment of a statutory guardian by the Court. But in other cases, that is to say, in the aase of the appointment of a guardian by an oral testament, it would seem to be open to the Court to ignore this appointment and make statutory appointment of its own if it considers best in the interests of the minor.

2. As regards the merits, we see no reason to differ from the view taken by the learned District Judge. The leaned Vakil for the appellant has drawn our attention to an allegation by his client that respondent the father, dishonestly and fraudulently obtains a sale deed and a othi dead in his own name and not in that of the minor and has complained that the District Judges has not taken evidence on the allegation. There is nothing in the District Judge's order to indicate chat any evidence was tendered before him and the allegation that the Judge refused to take evidence is denied in the counter-affidavit.

3. Lastly, our attention is drawn to the last statement of the District Judge's order dated 18th January 1921. 'The respondent will deliver to the petitioner the whole of the minor's property which is in her possession,' It is suggested that this order is not justified by any provisions of the Act. But however this may be, this direction is not embodied in the final order of appointment which is now made the subject of appeal and we see no reason to concern ourselves with the question of its legality.

4. The appeal is dismissed with costs.


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