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M. Narasayya and ors. Vs. A. Venkatappa - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Judge
Reported in71Ind.Cas.298; 71Ind.Cas.298; (1923)44MLJ62
AppellantM. Narasayya and ors.
RespondentA. Venkatappa
Cases ReferredKrishnaswami Chetty v. Cottah Mangamma
Excerpt:
guardians and wards act (viii of 1890), section 17 - selection of guardian--miner's welfare paramount consideration--presumptive heir to minor's properly, if suitable guardian. - - ' 2. but, in fact, first counter-petitioner, who is his mother's brother, is more nearly related to the minor, and when the claims of distant relations like petitioner and second and third and sixth counter-petitioners have to be compared, there is no question of preference other than what arises from a consideration of the minor's welfare, which is made the paramount consideration under section 17(1) and (2) of the guardians and wards act......near heirs, though not the next presumptive heirs.6. under these circumstances, we think that the fifth counter-petitioner, whose brother has married the third, counter-petitioner's daughter, is the person who is likely to be the most disinterested protector of the minor's person.7. the district judge's order appointing the petitioner guardian of the minor's property will stand upon the conditions set out at the end of his order, but, in reversal of his order, we appoint the fifth counter-petitioner guardian of the minor's person. the order allowing rs. 10 per mensem for the maintenance of the minor and his step-sister will be altered by providing rs. 5 for the minor and rs. 5 for narasamma. this will be an ample sum, in our opinion, for the minor's maintenance in view of the fifth.....
Judgment:

1. The learned District Judge appears to have selected the petitioner to be guardian of the minor's person chiefly on the ground that, as he says, 'he would under Hindu Law be the preferable guardian.'

2. But, in fact, first counter-petitioner, who is his mother's brother, is more nearly related to the minor, and when the claims of distant relations like petitioner and second and third and sixth counter-petitioners have to be compared, there is no question of preference other than what arises from a consideration of the minor's welfare, which is made the paramount consideration under Section 17(1) and (2) of the Guardians and Wards Act.

3. It has been often laid down that the presumptive heir to the property of a minor is not a suitable person to be appointed guardian of his person, as such a person stands to gain by the minor's death See Sami Row v. Eliavatha Row 16 M.L.J. 357, Kristo Kissor Neoghy v. Kadermoye Dossee 2 C.L.R. 583, Krishnaswami Chetty v. Cottah Mangamma (1911) 1 M.W.N. 365. The petitioner, as the nearest agnate, is in this case the person who would succeed to the minor's property if anything happened to the minor.

4. The first counter-petitioner is unmarried and in a dependent position. The minor is of tender age and will need maternal care for some years to come. Such care is not to be looked for from first counter-petitioner, or from the minor's step-sister, a girl of sixteen who lives half the year with petitioner's witness No, four, who is himself not a near relation, and she, further, is of marriageable age and likely not to remain long in petitioner's house.'

5. The second and sixth counter-petitioners are not shown to have any particular qualification and they are very near heirs, though not the next presumptive heirs.

6. Under these circumstances, we think that the fifth counter-petitioner, whose brother has married the third, counter-petitioner's daughter, is the person who is likely to be the most disinterested protector of the minor's person.

7. The District Judge's order appointing the petitioner guardian of the minor's property will stand upon the conditions set out at the end of his order, but, in reversal of his order, we appoint the fifth counter-petitioner guardian of the minor's person. The order allowing Rs. 10 per mensem for the maintenance of the minor and his step-sister will be altered by providing Rs. 5 for the minor and Rs. 5 for Narasamma. This will be an ample sum, in our opinion, for the minor's maintenance in view of the fifth counter-petitioner's offer to maintain the minor at his own cost. Each party to tear their own costs in this and in the lower Court.


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