Amresh Roy, J.
1. This appeal has been preferred under Section 47 of Guardians and Wards Act by Rabindra Nath Mukherjee against an order made under Section 7 of that Act rejecting his prayer to be appointed guardian of the person and property of minor Gautam Chatterjee who is his daughter's son. The parents of the minor are alive. Father of the boy who was joined as opposite party in the petition and is Respondent in this Court opposed the prayer of the petitioner appellant.
2. The parties are governed by Dayabhag Hindu Law, and under that law undisputably father is the natural guardian of the person and property of minor son. That law still prevails under Section 12 of Hindu Minority and Guardianship Act, 1956. Appellant's claim to be appointed guardian in preference to the father of the boy who by their personal law is the natural guardian of the person and property of the minor is based on the history of the boy's life who is now about 12 years old, being born in 1959.
3. It is the admitted case of both parties that soon after the boy was born, he was brought to the house of his maternal grandfather and was brought up there and has been living there. Reason for that transposition of locus of the child at his early age has not been clearly stated by the appellant either in his application or in his deposition. But he has stated that it was at a time when the child was only 1 1/2 months' old., and since then neither the father nor the mother of the boy has taken any interest in the affairs of the child. The boy was brought up as a son in the family of his maternal grandfather who was a teacher in a Primary School. He was educated in that School and having done well he has passed the preliminary stage and is now in a Higher Secondary School where he is a student of Class VIII.
4. On the side of applicant emphasis has been put on the part of the story that since that early age of the boy the father of boy has not taken any interest in Ms affairs and has not paid any money for upbringing and education of the boy. None of the parents has even come to see the boy, so much so that even at his age of 11 years the boy does not know even his father and mother. In the Court during his deposition, the boy said that he did not recognise his parents.
5. The necessity for making the application for being appointed guardian arose according to the applicant because recently the father of the boy for meeting expenses of marriage of his eldest daughter by a deceased wife had solicited his father-in-law for a loan of Rupees 5,000/- but the applicant did not oblige the son-in-law. That enraged the son-in-law and he filed a complaint in the Magistrate's Court alleging wrongful confinement of the minor child. The Magistrate ordered a Search Warrant to issue for the boy. To prevent the boy from being taken by that Search Warrant, the maternal grandfather made the application under Guardian and Wards Act and had the proceedings in the Magistrate's Court stayed.
6. On the side of the Respondent the reason for leaving the boy at his early age with his maternal grandparents was that at the time when the child was born his parents were in Delhi where his father had been transferred in his service in the department Of Military Accounts of Government of India. Soon before the birth of their child, a young son of his maternal grand-mother had died. The mother of this infant son was then living at her father's place with the child and she found her mother disconsolate due to Brief of her son's death. To help the elderly lady in her grief, the daughter on compassionate grounds left her newly born son with her mother before she went back to Delhi with her husband. The bov was brought up by his maternal grandmother and has been living there since he was put in that care. According to their case the parents of the boy did come to see the boy whenever they came to Calcutta and also paid expenses for his upbringing and education- After he was transferred from Delhi and joined office in Calcutta in 1960, the father and also the mother of the boy wanted to take the boy to their household. But either due to sentimental reasons and superstitious psychology of the grand parents and other members of the boy's maternal family or due to other material reasons, they refused to allow the boy to go to his parents and also prevented the parents from getting access to the boy or even to see him. That culminated in the complaint lodged by the father of the boy in Criminal Court to obtain a Search Warrant for rescue of the boy for production before the Magistrate. That proceeding however has remained stayed since present application under the Guardians and Wards Act was filed.
7. While those are the bare outlines of respective cases of the parties. In the application for appointment of guardian which was filed on 14th March 1970 the applicant, as the basis of his claim to be appointed as guardian, stated that 'the boy's parents never exercised any parental rights for these long 11 years. The neglect of the minor by the parents is a mental cruelty to the boy' and also that 'the father lost the preferential right on account of his not exercising the parental rights for 11 years and not even keeping any information about the boy not looking to his interest at all for these long years and for his neglect of the minor.'
8. As a reason for appointment of guardian in that application mention was made of 'a Criminal Case against the petitioner under Section 341 I. P. C. to force the petitioner to give up custody to the father' and it was stated 'The petitioner files the application for the welfare of minor and against the forcible removal of the boy.....'
9. The proceeding that commenced on that application was numbered as Act VIII Case No. 26 of 1970 in the Court of the District Judge. Objection petition was filed on 24th April 1970. It characterised the first party's petition as 'motivated and not maintainable' and after traversing the allegations prayed not only for dismissal of the first party's petition but also prayed for an 'order that the boy be returned to the guardianship of the opposite party' and grant such other relief or reliefs as Court may deem fit.
10. The case appears to have been transferred to Second Court of Additional District Judge and trial commenced in July 1970 in that Court by examination of witnesses. On the petitioner's side were examined the petitioner himself and the minor Gautam Chatterjee. On the other side the mother and the father of the minor deposed on oath. Besides that oral testimonies, only other material before the learned trial Judge was that on the very first day of the trial he ascertained from the boy his wish and he wanted to remain with his maternal grandfather. Unfortunately there is no record of what questions were asked and answers elicited thereby at that interview of the boy with the learned Judge. Deposition of the minor as petitioner's witness No. 2 is set out in the whole as it appears in the Record:--
'The deposition of Witness No. 2 for the petitioner aged about 12 years, taken on oath or solemn affirmation before me Shri A. K. Coari A. D. J of Act VIII 26/70/ this 15th day of June 1970.
My name is Goutam Chatterjee (Minor). My father's/husband's name is Rabindra Nath Mukherjee. I am by religion H. My Home is at Mouza Kashimpur Police Station Baraset Dist. 24-Parganas. I reside at present in Mouza Do Police Station District Do where I am student.
I consider my father the man with whom I live. I do not know the name of my real father.
I have always lived in Rabin Babu's house. I am in Class VI. This man (pointing to Abinash Chatterjee) never came before me and this woman Point-Ing to (Sandhya) never came before me.
I saw this man during Criminal case for the first time.
I am unwilling to live with this man To Court: I have come with my father Rabindra, and I do as he says.
Sd/- A. K. Coari
Read over explained and admitted to be correct.
Sd/- A. K. Coari
11. The learned Additional District Judge in his judgment delivered on 23rd July, 1970 held that the petitioner stated falsehoods in his petition and lied in his deposition on oath on almost all material points of fact including the story of a request for loan. He also held that the boy has been tutored to speak against his own parents and his mind is being poisoned against the parents and only person who can do so Is the present petitioner. On that ground he was unable to accept the petitioner as a fit person to be appointed as the guardian of a minor of tender years.
12. The learned Judge also held that financially the father of the boy is better off than the petitioner, and in the circumstances of the case the father of the boy had not forfeited his right to be guardian of the boy and he had not neglected to look after the welfare of the boy.
13. The petition was rejected with costs.
14. Against that order of the learned Additional District Judge present appeal has been preferred on behalf of the petitioner Rabindra Nath Mukherjee. Memorandum of Appeal was presented on 23rd July 1970 and the appeal was admitted for hearing under Order 41, Rule 11 Civil Procedure Code on 25-9-1970. On the same day an application for ad interim injunction was made in this Court supported by an affidavit sworn to by the petitioner Rabindra Nath Mukherjee on 3rd August, 1970. In that application it was stated in paragraph 5: 'That all on a sudden as your petitioner did not comply with the demand of the boy's father to give him loan of Rs. 5,000/- he has filed an application for search warrant against the boy and to take him into his custody and managed to get an order of search warrant' In paragraph 12 thereof it was stated: 'The minor is now lying in the custody of your petitioner and if he is removed from the said custody by the opposite party, his mind and health will be seriously affected. The opposite party is trying to remove the said minor from your petitioners' custody by means of search warrant. Unless the opposite party is restrained by an order of injunction from removing the minor from the custody of your petitioner by means of search warrant or otherwise, the wel-fare of the minor will be seriously pre-judiced.' Prayer in that petition was
'to issue a Rule calling upon the opposite party to show cause why he should not be restrained by an order of injunction from removing the minor (Gautam Chatterjee) from the custody of the petitioner by any means whatsoever pending the disposal of the appeal by this Hon'ble Court and upon hearing the cause shown, if any, or otherwise make the Rule.'
15. A Rule was directed to Issue in these terms:
'Let a Rule issue calling upon the opposite party to show cause why pending the disposal of F. M. A. T. 2347/70 preferred before this Court should not be restrained by an order of injunction In the manner as referred to in the petition or why such other or further order or orders should not be made as to this Court may seem fit and proper.
Ad interim injunction is granted pending the disposal of the Rule.
The Rule is made returnable eight weeks after the reopening of the Court after the long vacation.'
16. By effect of ad Interim order made in those terms, by the Division Bench (A. K. Sinha and R. B. Banerjee, JJ.) the proceedings in the Magistrate's Court including execution of the Search Warrant remained stayed.
17. In those circumstances when the Rule came up for hearing, the Division Bench (P. N. Mukerjee and A. Mukerjee, JJ.) made the Rule absolute and gave directions to prepare paper book of the appeal on an agreed list of papers to be filed by learned Advocates from the records if available or from copies of relevant papers to be supplied by the learned Advocates. Their Lordships also directed the appeal to be placed for hearing within three weeks from the date of that order made on 5th January, 1971. The records of the Court below were received on 28th January, 1971. Paper books were filed by the learned Advocate for appellant only on 15-2-1971 and those were served on the learned Advocates for the parties on 18-2-1971. Hearing of the appeal commenced before us on 24-2-1971.
18. At the hearing of the appeal, at the very outset we noticed that because of the directions given and the order made in the Rule for expedition, material documents have not been included in the paper book, not even the order-sheet of the Court below, though paper books were prepared in the office of the learned Advocate for the Appellant at a time when records of the Court below had already been received in this Court. It is unfortunate that it was allowed to happen that way and office of this Court accepted the paper books which had not even been compared with original records to give correct rendering of many documents including record of depositions of witnesses. We had therefore to refer to original records on all material points.
19. By doing so we find that the whole carriage of proceedings from the very inception has been not only perfunctory but also in violation of clear provisions of law to the detriment of justice and due process of law.
20. First, the application on which the proceedings commenced is not according to the provisions in Guardians and Wards Act. It is necessary to remember that power to make order appointing guardian is given by Section 7 of the Act. Then Section 8 provides the persons who are entitled to apply for order and enjoins that an order shall not be made except on an application. Section 9 provides the Courts having jurisdiction to entertain application. Section 10 provides:
'Section 10(1) If the application is not made by the Collector, it shall be by petition signed and verified in manner prescribed by the Code of Civil Procedure for the signing and verification of a plaint, and stating, so far as can be ascertained
(a) the name, sex, religion, date of birth, and ordinary residence of the minor;
(b) where the minor is a female, whether she is married and, if so, the name and age of her husband;
(c) the nature, situation and approximate value of the property, if any, of the minor;
(d) the name and residence of the person having the custody or possession of the person or property of the minor:
(e) what near relations the minor has, and where they reside:
(f) whether a guardian of the person or property or both, of the minor has been appointed by any person entitled or claiming to be entitled by the law to which the minor is subject to make such, an appointment;
(g) whether an application has at any time been made to the Court or to any other Court with respect to the guardianship of the person or property, or both, of the minor, and, if so, when, to what Court and with what result;
(h) whether the application is for the appointment or declaration of a guardian of the person of the minor, or of his property, or of both;
(i) where the application is to appoint a guardian, the qualifications of the proposed guardian;
(j) where the application Is to declare a person to be a guardian, the grounds on which that person claims;
(k) the causes which have led to the making of the application; and
(1) such other particulars, if any, as may be prescribed or as the nature of the application renders it necessary to state.
(2) If the application is made by the Collector, it shall be by the letter addressed to the Court and forwarded by post or in such other manner as may be found convenient, and shall state as far as possible the particulars mention-ed in Sub-section (1).
(3) The application must be accompanied by a declaration of the willingness of the proposed guardian to act arid the declaration must be signed by him and attested by at least two wit-nesses.'
21. The application that was filed in the Court of the District Judge at Alipore does not bear attestation by two persons. It purports to bear attestation by one person only. No evidence has been given that it is attested by that person even. That being so. the application deserved to be reiected in limine. This appeal must therefore fail for that defect in the application alone. When his attention was drawn to this defect, the learned Advocate for the Appellant could not find any answer to it and had to concede that appeal must be dismissed on that ground.
22. It is not a little astonishing that the defect so fundamental is appearing in an application filed through a lawyer and it was not even noticed either by the District Judge before fixing a day for hearing and directing notice enjoined by Section 11 of the Act which enjoins that such steps can be taken only if the Court is satisfied that there is ground for proceeding on the, application. An application which is not in conformity with Section 10(3) is not one that can be proceeded on under Section 11.
23. Yet the District Judge entertained that application by registering a case and proceeded to issue general and special notice by order dated 24-3-1970 and again on 30-3-1970 to issue notice on an application for an injunction in such a proceeding for granting in effect an injunction against a criminal proceeding and countermanding execution of a Search Warrant issued under Section 100 Criminal Procedure Code. It reveals lack of appreciation of the nature of such a Search Warrant which is a Magisterial power of the nature of a Writ of Habeas Corpus for production of the body of a minor before the Magistrate. To countermand such a process issued by a Criminal Court involves grave consequences that may befall not only on the ultimate justice in the case but also on the safety and welfare of the minor. It is astonishing that such an order was made by the District Judge with so much casualness that is appearing loudly in the order dated 30-3-1970 as it appears in the order sheet. Only redeeming feature in that order is that it does not by express words grant an interim injunction pending the hearing of the application for injunction as was prayed for. Section 12 of the Act gives power to make interlocutory orders for the temporary custody and protection of the person and property of the minor. It does not include power to injunct against Search Warrant issued by Magistrate.
24. Opposite party filed written objection to the prayer for injunction on 13-4-1970 and also filed written objection to the original application on 17-4-1970. But in none of those the defect by non-compliance with Section 10(3) was specifically pleaded, though in both it was pleaded that 'first party's petition is motivated and not maintainable.'
25. On 8-5-1970 the District Judge made an order directing that injunction matter be heard along with the original case on the date fixed, and by the same order transferred the case to 2nd Court of Additional District Judge for disposal.
26. Before the learned Additional District Judge on the prayer made on behalf of opposite party an adjournment was granted and the case was fixed for hearing on 24-6-1970. Before that date however on 15-6-1970 the petitioner made another application for injunction mentioning therein that a Search Warrant u/s 100 Criminal Procedure Code had been issued by the S. D. O. Alipore En Misc. Case No. 807. Notice was directed to issue and ad interim injunction was directed to issue at once. To that prayer for injunction also an objection was filed on behalf of opposite party. By an order made on 17-6-1970, hearing of the injunction on matter was fixed for 22-6-1970.
27. Every one concerned, including the Additional District Judge and lawyers of both parties, appear to have forgotten or ignored the fact that injunction matter arising upon notice directed by District Judge had remained pending and was directed to be heard along with the original case. By such profound neglect of matters on record end utter lack of care, the learned Additional Judge heard arguments on injunction matter initiated in his Court on 22-6-1970 and disposed it of by an order of that date in the material part of which he said
'I would make the ex parte order of injunction absolute. The father be restrained till the disposal of the case not to take custody of the boy by a process of the Criminal Court. The hearing of this case be expedited.'
28. In that order dated 22-6-1970, in its earlier part the learned Additional District Judge recorded
'The boy aged about 10/11 over whom this controversy is present in Court I requested the learned lawyer of the O. P. to interview the boy in my chamber and after this the learned laywer frankly submits that the boy does not want to go to his father.'
29. That is the only indication in the record how the learned Additional District Judge ascertained the wishes of the boy by granting an interview of the boy with the lawyer for the opposite party in his chamber. The learned Judge does not appear to have talked with the boy directly nor did he obtain the boy's answer directly. If that is what the learned Judge has referred to in his judgment by saying 'on the very first day I ascertained from the boy his wish,' it is no more than a misnomer.
30. The whole record of deposition of Gautam Chatterjee has been quoted from the Record in this judgment. It shows that the boy was aged about 12 years and he was examined as Witness No. 2 for the petitioner. Oath was administered to him, but the learned Judge has not made any note in his order sheet as to the competence of the child witness to give evidence. He has not recorded any question and answer by which he could be satisfied about competence of this child witness to testify in Court, not even if he knows truth from falsehood or understands value of oath.
31. What is more, in the record of deposition though a question by Court and the answer thereto has been recorded, there is nothing to show that the witness was made available for cross-examination by or on behalf of the opposite party. It is not recorded that cross-examination was declined. That not only takes away the value of his testimony but also compels us to expunge it from record. Only available use that remains is what the learned Judge gathered from the demeanour of the boy when he was in the view of the Judge in Court.
32. The findings of the learned Judge based on testimony of petitioner and the demeanour of the boy is that at his present locus in the custody of the petitioner for 11 years, the boy has been taught to He to the extent of not only giving false name of father, pretending ignorance of the name of his real father, disown and disclaim having known or even seen his father and mother. That disclaimer and pretension gather blacker hue when it was made at the face of both the parents and in open Court. On these materials the finding of the Judge that petitioner is not a fit person to have custody far less to be appointed guardian, of the person of the boy is inevitable, reasonable and proper finding. On that ground also the order rejecting the petitioner's application is a proper and legal order and this appeal must fail
33. The learned Judge has held against the allegation of neglect and cruelty on the part of the father of the boy that was pleaded in support of the petitioner's claim that the father had forfeited his preferential right to be guardian of his minor son. We agree that the facts revealed by evidence in the case instead of indicating in any way neglect or cruelty on the part of the father, very strongly indicate and establish as a fact that at the early age of the child his parents had very humanly and generously put the child in the custody of his maternal grandmother to relieve her of the grief due to sad demise of her young son. It is true that for some time the parents of the boy were away from Calcutta and were living in Delhi where the father was then posted in his service. But even during that time, the mother of the boy whenever she came to Calcutta went to see the child at her father's place. Even petitioner said in his testimony that relationship between the daughter and father was good. When however the father of the boy was transferred to Calcutta and he wanted to take the boy in his custody, due to irrational doting and depraved psychology the petitioner and other members of the family put up an obstructive attitude to the extent of refusing the parents to meet their son even. They perverted the young mind of the child by teaching him falsehoods, and by falsehoods also they poisoned the mind of the child to be antagonistic to his own mother and father. In his deposition the petitioner sought to seclude his own sins by inventing false stories of neglect and cruelty of his own daughter and son-in-law and pleading a dastardly lie that his son-in-law asked for a loan. We agree with the finding of the learned Judge on that point also.
34. During the hearing of the appeal before us, the boy Gautam Chat-terjee accompanied by his maternal aunt was present in Court on 25-2-1971 in the forenoon. The mother of the boy Smt Sandhya Chatterjee accompanied by her young daughter and son who are elder sister and brother of the boy Gautam were also sitting on the same long bench in the well of the Court. They were identified by the learned Advocates for the Appellants and Respondents. When we noticed the constricted attitude of the boy under the influence of his maternal aunt to look away from the mother brother and sister who were trying to get close to the boy and to draw his attention, at least to catch his eyes, it was an unnatural and pathetic spectacle. With the active consent of the learned Advocates on both sides we retired to chamber and invited the boy, accompanied by his aunt there. Then we spoke to the boy alone in chamber after the aunt had gone back to Court. It appeared clear to us that the mental oppressions that the boy has suffered in his maternal grandfather's house during these years have resulted in physical effects also by affecting his nerves as his involuntary contusions of facial muscles during conversation and definite but small stuttering in speech revealed, though he has an intelligent alert and bright mental capacity. We noticed emaciation in body and learnt that he had suffered from typhoid fever some time ago. He needed nourishment. To put his mind on the level, we sent him out to see the Courts in this Building in company of Orderly. When he was brought back to the chamber, we offered him wholesome refreshments and Sandesh. He accepted with grace and partook of it avidly. That made clear to us that the boy is missing good food and nourishment that will be available to him in the household of his father who is financially better off than his maternal grandfather.
35. We also invited the boy's mother and sister in our chamber when the boy was there. The mother asked a few questions about his poor health. The boy answered. But he was constricted and hesitant in that conversation. He did not speak to his sister and told us that he did not know her. During that conversation in our Chamber we learned that a few days ago a maternal uncle of the boy was married in Calcutta, and there were celebrations where all relations came. The mother of the boy had gone to join the celebrations also. Everybody from the grandfather's house also came to that celebration. But Gautam was not brought there. Asked why, Gautam said there was no particular reason. It is clear to us that definite reason for that was to prevent the boy from meeting his mother even during those celebrations. We hold that to be in pursuance of inert but dastardly mental cruelty to which he has been subjected by his maternal grandfather, which on materials on record the learned Additional District Judge has found as a fact in his Judgment.
36. On consideration of all the reasons mentioned above we affirm the order of the learned Additional District Judge rejecting the application. The appeal is dismissed with costs, hearing fee being assessed at 5 G. Ms.
A.K. De, J.
37. I agree.