Chittatosh Mookerjee, J.
1. The point for consideration in this appeal is whether or not the impugned order of the Additional District Judge, Alipore, 24 Paraganas appointing Sri Balaram Chakraborty, the respondent, as the guardian and for giving custody of his granddaughter, Mitashree Chakraborty, is for the welfare of the said minor.
2. In July, 1975 the said minor's father, Tanmoy Chakraborty, had married Mira, a daughter of the present appellants, according to the provisions of the Special Marriage Act, 1954. It appears that the said marriage of Tanmoy with Mira was against the wishes of the present appellants, who were her parents. Further, even after the said marriage, the present appellants were not willing to accept Tanmoy and consequently their relations with Tanmoy were not cordial. Tanmoy with his wife, Mira, began to live in a rented house near Dum Dum Airport. On 19th September, 1976, in a nursing home, Mira wife of Tanmoy, had given birth to a daughter, who was named Mitashree.
3. Mira, wife of Tanmoy had suffered burn injuries at their Dum Dum house and after removal to a hospital, she died on 21st March, 1977. Since the said unfortunate death of her mother, Mitashree had been living with her maternal grand-parents, the present appellants.
4. On 18th May, 1977, Tanmoy, the father of the minor, Mitashree committed suicide. Balaram Chakraborty, the paternal grandfather of minor Mitashree, filed an application in the Court of the District Judge at Alipore ifor custody of the minor Mitashree. Subsequently, he also prayed for appointing him as the guardian of the said minor. The present appellants, who are the maternal grand-parents of the minor, opposed the said prayer of the respondent. The learned Additional District Judge, 11th Court at Alipore by his order dated 7th June, 1979, allowed the application of the respondent and appointed him as the guardian of the minor Mitashree and directed the appellant to give her custody to the present respondent. The appellants, being aggrieved, by the said order, have preferred this appeal.
5. Undisputedly, neither the appellants, who were the maternal grand parents, nor the respondent, who was the paternal grand-father were the natural guardians of the minor Mitashree. Neither minor's father nor her mother had by their will appointed any guardians. Therefore, the trial Court within whose jurisdiction the minor resided, was competent to appoint a guardian of the said minor. In making appointment of any person as a guardian by a Court, the welfare of the minor shall be the paramount consideration (vide Section 13(1) of the Hindu Minority and GuardianshipAct). The Section 2 of the Hindu Minority and Guardianship Act, 1956, has laid down that the provisions of the said Act shall be in addition to and not save as expressly provided, in derogation of the Guardians and Wards Act, 1890. We are unable to entertain the submission of Mr. Kashi Kanta Maitra, learned advocate for the appellants, that the application of Balaram Chakraborty for appointing him as guardian and for making over of the said minor to him ought to be dismissed in limine on the ground that the said application was not in compliance with Section 10(3) of the Guardians and Wards Act, 1890, inasmuch as the said application was not accompanied by any declaration of willingness by the proposed guardian to act and his signature was not attested by at least two witnesses.
6. In support of his above submission, Mr. Maitra, relied upon the decision of Amaresh Chandra Roy and A. K. De. JJ. in Rabindra Nath Mukherjee v. Abinash Chandra Chatterjee, : AIR1972Cal143 . The observations made in Paragraphs 17 and 18 of the said Division Bench decision ought to be considered in the light of the facts of the said case. Secondly, the provisions of Sections 10 and 11 of the Guardians and Wards Act, 1890, relate to matters of procedure. In case an application is not in conformity with the said provisions, the Court before whom such an application is made, may call upon the applicant to remove the defects in question. In case, the applicant fails to comply with such an order, the Court may reject the application for guardianship or custody. But, if no such objection is at all raised in the trial Court and the said Court passes an order on merits, the party preferring an appeal against such an order ought not to be allowed to contend before the appeal Court, for the first time, that for the application being defective in form, it ought to be rejected in limine. On the principles embodied in Section 99 of the Civil P. C., the appellate Court legitimately may refuse to reverse or vary the order appealed against on account of such error or irregularities not affecting the merits or jurisdiction. But, if on the other hand, on account of any irregularity the merits of the case is affected, the appellate Court might entertain the said objection and pass appropriate orders. In our view, the defects in the application filed by Balaram Chakraborty in the Court below related to matters of procedure. None had raised any objection in the trial Court about the said defects and Balaram Chakraborty had deposed as a witness. Therefore, the merits of the case were not affected by the above procedural error.
7. Mr. Kashikanta Maitra himself has drawn our attention to the decision of Sir Asutosh Mookerjee and Beachcroft, JJ., in Sundarmani Dei v. Gokulananda Chowdhury, (1913) 17 Cal LJ 405, which inter alia, held that the absence of an application under Section 11 of the Guardians and Wards Act, 1890 was not a fatal defect, when all persons interested in the matter of appointment of a suitable person as a guardian were present before the Court and the suitability of that guardian was fully considered by the Court. Mr. Maitra has also submitted that the decision in Sun-dermani Dei's case (supra), was followed by the Division Bench decision of Allahabad H. C. in Narotam v. Mt. Tapesra, AIR 1934 All 849, which followed the decision in Sundermani Dei's case (supra), and inter alia, held that the absence of an application by the person appointed guardian by the Court is not bar to the jurisdiction of the Court to appoint him guardian.
8. The learned Additional District Judge, in our view, has not properly considered whether for the welfare of the child his paternal grand-father, Balaram Chakraborty, should be appointed as the legal guardian of the minor, Mitashree Chakraborty. The learned Additional District Judge has decided the case mainly on the basis that the present appellants had very strained relations with Tanmoy, the father of the minor, and Tanmoy in his two alleged writings (Exts. 1 and 1 (a)) has expressed his desire that the present appellant No. 1, who was his father-in-law, should never be appointed as the guardian of his infant daughter.
9. Undoubtedly, in appointing or declaring the guardian of a minor the Court is required to consider the matters mentioned in Section 17 of the Guardians and Wards Act, 1890, But in these matters, the paramount consideration would be the welfare of the minor. In the instant case, Tanmoy Chakraborty, the father of the minor, who was then unemployed, had married Mira under the provisions of the Special MarriageAct, presumably, against the wishes of her parents, the present appellants. It does not appear that even after the said marriage, there was reconciliation between the appellants and their son-in-law, Tanmoy. But, we very much regret that even after the unfortunate deaths of Mira and then Tanmoy, the appellants in their pleadings filed in the Court below, had chosen to cast aspersions against Tanmoy who was not alive to controvert them. To say the least, the said allegations in the objection filed by the appellants in the Court below, whether true or not, were not in good grace and were totally irrelevant for the purpose of deciding the question of guardianship and custody of the minor child of Tanmoy and Mira. We record that Mr. Maitra, learned advocate for the appellants, has submitted that his clients now realise the impropriety of making these allegations against the father of the said minor whose custody the appellants are seeking to retain.
10. One of the reasons given by the court below for appointing the respondent as the guardian of the minor was that the respondent being the paternal grandfather was nearer relation of the minor. In our view, so far as the proximity of the relationship was concerned, both the appellants, the maternal grandparents, and the respondent the paternal grandfather, were close relations of the minor and on the said ground of relationship the respondent did not have a preferential claim to the guardianship over the person of the minor.
11. The court below has not correctly assessed the evidence regarding the financial means of the appellants and the respondents. Neither of the parties adduced any documentary evidence in the court below on this point. Balaram Chakraborty, the respondent, in his evidence given in the court below claimed that he carried on printing business and earned Rs. 800/- to Rs. 900/- per month. In his examination-in-chief, Balaram Chakraborty also stated that his elder son worked under Peerless General Finance & Investment Co. Ltd. and got Rupees 700/- per month. One of his daughters also was working as an Agent of the said investment company and annually received Rs. 5,000/- to Rs. 6,000/-as commission. When neither the said son nor the daughter of Balaram Chakraborty had deposed in the courtbelow, learned Additional District Judge was not justified in taking into consideration their alleged earnings for deciding the eligibility of Balaram Chakraborty for appointment as the guardian of the minor Mitashree. Balaram Chakraborty, the respondent, during his cross-examination admitted that he hailed from the then East Pakistan. He himself deposed that he had squatted on a land in West Bengal like other refugees and still living there. He claimed that he had a tin-shed dochala there. He had two bed-rooms and a verandah in his house.
12. Satyendra Nath Maitra, the appellant No. 1, stated in his evidence that he was employed as a Steward in a State Government hospital. His scale of pay was from Rs. 350/- to Rs. 650/- with usual allowances plus Rs. 40/- as special pay. He claimed that his total remuneration, was Rs. 900/- per month. The appellants lived in joint mess with Satyananda's three brothers in a house which stood in the name of their mother. According to the appellant No. 1, he was in occupation of two rooms in the 1st floor of the said house. His two brothers and mother occupied the remaining rooms in the 1st floor. In view of the above evidence, the learned Additional District Judge was not justified in concluding that Balaram was financially more solvent than the present appellants. The court below was also not right in holding that in the absence of Balaram Chakraborty, there would be no provision for the minor Mitashree but that would not be the case if the minor was kept in the custody of the present appellants. In fact, neither Balaram Chakraborty nor Satyendra Nath Maitra either in the examinations-in-chief or during their cross-examination had stated that they proposed to make any financial provision for maintaining the minor Mitashree after their death. In this court, Mr. Kashikanta Maitra, on behalf of his client, appellant No. 1, who was also present in the court, stated that the appellant No. 1 was prepared to keep Rs. 7,000/- in fixed deposit towards such provision for maintenance of the minor.
13. The learned Additional District Judge has also erred in placing reliance upon the two alleged writings (Exts. 1 and 1A) of Tanmoy, the father of the minor Mitashree. Both the documentswere admitted into evidence on proof. During the cross-examination of Balaram, it was suggested to him that he had forged Tanmoy's signature and manufactured the letters (Exts. 1 and 1A). Therefore, the lower appellate court was not right in observing that the appellants did not deny that the said exhibits were written and signed by Tanmoy. The trial court also failed to consider that Tanmoy had allegedly written the letter dated 18th May, 1977 to one Khonada, who was said to be his office colleague in the office. Balaram in his examination-in-chief had claimed that on the day he committed suicide, Tanmoy had kept the letter on the table of Khonada and he got the letter from Khonada on the same day in the afternoon. But Khonada, the alleged recipient of the said letter (Ext. 1), was not examined as a witness to corroborate the above claim of Balaram Chakraborty, P. W. 1. There was also no explanation for his non-examination.
14. The alleged writings which were in the nature of suicide note (Ext. (A) was dated 8th May, 1977 but Tanmoy committed suicide on 18th May, 1977. Although, according to Balaram, the said writing (Ext. 1A) which was found in Tanmoy's drawer, was seized by the police and later on returned to him, there was no endorsement by the police to the said effect. No witness from the police station concerned was examined to corroborate the said fact. The court below also did not consider that it was somewhat improbable that 10 days before his death Tanmoy had prepared his suicide note with elaborate directions about the custody of his daughter. The said document (Ext. 1A) not being attested could not be considered as a testamentary document. Since we are not satisfied about the reliability of the two writings (Exts. 1 and 1A), we need not consider the further question whether the same were admissible in view of Section 32 of the Evidence Act. Accordingly, the said writings (Exts. 1 and 1A) may be left out of consideration.
15. Undoubtedly, relations between Tanmoy and his parents-in-law, the present appellants, were strained. But, in view of the evidence of Balaram Chakraborty, P. W. 1, it does not appear that Tanmoy and his wife Mira had any intimacy even with Tanmoy's family including the respondent No. 1. Balaram inhis evidence stated that after marriage, Tanmoy with his wife used to live separately till Mira met with an accident and died. Tanmoy lived separately on the advice of his parents-in-law and Balaram further claimed that they used to visit his house. Balaram also stated that he was not aware that Mira's family had arranged for Mitashree's Annaprashan, but he had claimed that he had presented a ring to Mitashree. It would appear from the evidence given from both sides that so long Mira was alive, in spite of their ill-feeling towards Tanmoy the appellant maintained cordiality with their daughter, Mira. After her accident which resulted in her death, the appellants had taken away the minor Mitashree to their house and since then the minor had been living with the appellants. It is not uncommon that in our society when a daughter makes a love-match against the wishes of her parents, after some time there would be reconciliation between the said daughter and her parents. It would be taking a totally unrealistic view to hold that because the appellants might have disliked their son-in-law, Tanmoy, they could have no affection for the only child of their daughter Mira, who died under tragic circumstances. On the other hand, in view of these unfortunate circumstances the appellants are likely to much more adore their minor grand-child Mitashree. The learned Additional District Judge was not at all justified in holding that from their subconscious mind the appellants would feel apathy towards the daughter of Tanmoy against whom they bore hatred even after his death. The court below had overlooked the fact that after the death of Mira, it would be more probable that the appellants felt much greater attachment for their unfortunate grand-child who became an orphan during her infancy. Only because the appellants might have disliked Tanmoy, they were not disqualified from having the custody of the child of Tanmoy and Mira.
16. The respondent, Balaram Chakraborty, in his evidence had claimed that after Mira's death, he with his two daughters had gone to tne house of the appellants to take back Mitashree, but he was not allowed to enter the house of the appellants. Balaram had subsequently written a letter to the appellants demanding custody of the minor,But no other witness had corroborated the statement of Balaram that afterMira's death he had really made any endeavour to bring Tanmoy and Mira's child to his house. There is no evidence to corroborate the allegations made in the alleged writings of Tanmoy (Exts. 1 and 1A) that Tanmoy in his lifetime had made any serious efforts to get back his daughter from the appellants. More than three years have passed since the death of Mira since when Mitashree, the minor, had been living in the care and custody of the appellants. It is apparent that the said young child had never been to the house of Balaram Chakraborty, her paternal grand-father. Balaram Chakraborty and his family are now almost strangers to the minor although Balaram may not be blamed for this state of affairs. But the fact remains that the child who is still very young has been living with the appellants and there is no allegation that the appellants are neglecting the child. It appears that the child has been admitted into a school. In our view, it would be entirely against the welfare of the child to take her away from the custody of the appellants and hand her over to her paternal grand-father's family who are now almost strangers to her. It would not be for the welfare of the child to place her in a surrounding which is almost alien to her, because at present any change of her custody and environment may have baneful effects. She may thereby become emotionally disturbed and upset. Therefore, we do not propose to uphold the order of the court by which the minor who is an orphan would be taken away from her present home and surroundings.
17. In our view, at present it is not necessary to appoint a guardian in respect of minor Mitashree's person. We, further, direct that the appellants for the present continue to have the custody of the minor but at the same time we give the following directions ,so that minor Mitashree does not become totally a stranger to her father's family. Therefore, the respondent and his family ought to be given opportunities to visit the child so that they might be able to win her affection and confidence. Accordingly, the respondent and her family will be entitled to visit once a week the appellants' house and to meet minor Mitashree. After the respondent and his family become familiar with Mitashree, the respondent and his family may take the child to their house for temporary sojourn. Arrangement forsuch visit may be made according to mutual arrangements between the appellants and the respondent and in case of differences between them, appropriate directions may be obtained from the trial court. The appellants will take all necessary steps for proper education of the minor. After she attains the age of discretion, parties would be at liberty to apply to the trial court for further orders in the matter of guardianship and custody of the said minor Mitashree.
18. In the above view, we allow the appeal, set aside the order complained of and dispose of the application filed by the respondent in the court below without any order as to costs.
19. Decree need not be drawn up. Let a copy of this order be communicated to the court below immediately.
20. No separate order is passed in the Rule. The Rule be treated as disposed of without costs.
21. I agree.