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In Re: Lionel Ashby Dunkley and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1927Cal389,101Ind.Cas.609
AppellantIn Re: Lionel Ashby Dunkley and anr.
Cases ReferredSayad Shahu v. Hapija Begum
Excerpt:
- .....european british subject within the meaning of section 4, sub-section (7), i ought to appoint the mother guardian of the children jointly with the grandmother. as i have already indicated i am most anxious to do what is best for the minors and also not to ignore the natural rights of the mother, but i do not think it will be in the interest of the minors that i should make her their joint guardian. assuming but not deciding that clause 15, section 2 applies i am not prepared to exercise my discretion under that section, but at the same time there must be inserted in the order appointing the grandmother guardian a provision that the mother is to have access at all reasonable times to the minors and that she is to be allowed at least three times a week on due notice to their guardian to.....
Judgment:

Greaves, J.

1. This is an application for the appointment of a guardian of two minor boys. There are two applicants for guardianship, the mother and the paternal grandmother of the minors. The father of the minors died a short time ago and by his Will which bears the date the 28th May 1926, he appointed his mother Mary Wilfred Dunkley during her lifetime and after her death his trustee D. William Dunkley, to be the guardian of his minor sons Lionel Ashby and William Gregory Dunkley and certain sums of money are directed to be invested or deposited in the Imperial Bank of India for the benefit of the minor sons and the trustee is directed to pay to the testator's mother money from the Bank for maintaining and bringing up the minors in a suitable manner, and on attaining majority they are entitled to the balance of any money remaining in the Bank to their credit. It is not necessary I think, to go into many of the matters that are raised in the affidavits on both sides, either with regard to the alleged separation between the testator and his wife some few weeks before his death or to deal in detail with the charges that are made in the affidavits on both sides against the moral character of the other. I am bound of course in an application of this kind to consider only the interest of the minors themselves and carefully weigh any charges of immorality or misconduct that are made against any person who is applying for guardianship of the minors. I have carefully considered the various affidavits which have been filed on both sides and I am not prepared after so doing to attach any credence to the charges of immorality either on one side or the other. The result is that I have to approach the question from the point of view of the testamentary guardianship created by the Will on the one hand and the rights of the mother on the other. I confess I feel the greatest hesitation in depriving the mother of the guardianship of two minor boys of seven and five years of age unless I am constrained by law to do so or unless of course as is not the case here, the mother is a person unsuited to have the custody of her two minor sons; but I am bound to take the law as I find it, and it seems to me that in view of the provisions of the Guardians and Wards Act and the decided cases it is impossible for me to ignore or disregard the provisions of the testator's Will unless I am satisfied that the paternal grandmother of the infants is not a fit and proper person to have their custody and as I have already indicated I am satisfied that this is not the case - I cannot ignore the provisions of the Will.

2. There are two authorities one of this Court, and the other of the Bombay Court. The authority of this Court is to be found in In the matter of Akshoy Kumari Devi v. Hazari Dasi Devi [1915] 42 Cal. 953. where Sir Lawrence Jenkins says that in an application such as the one before me I must consider the welfare of the minor and also that any order I make will not infringe Sub-section (3) of Section 7 of the Act, and the case of Sayad Shahu v. Hapija Begum [1892] 17 Bom. 560 points in the same direction. Section 7, Sub-section (3) of the Guardians and Wards Act provides that where a guardian has been appointed by a Will or other instrument or appointed or declared by the Court, an order under the 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 have ceased under the provisions of the Act. Of course this must be read subject to the provisions of Section 15 of the same Act which provides that on the death of a European British subject, who by his Will or other instrument appoints a guardian of his minor child the Court may appoint the mother to be the guardian of the child jointly with the guardian appointed by the father. A European British subject is defined by Clause 4, Sub-section (7) of the same Act. The result, I think, therefore, is that I am bound to declare that by the testator's Will Mary Wilfred Dunkley is the guardian of the person and property of the two minors because I am satisfied that it is for the welfare of the minors under Section 7, that is to say. I am not able to say that she is not a fit and proper person, to take up the guardianship entrusted to her by her son by his Will made a few days before his death. I consequently make that declaration.

3. I then have to consider whether assuming for a moment that the father was a European British subject within the meaning of Section 4, Sub-section (7), I ought to appoint the mother guardian of the children jointly with the grandmother. As I have already indicated I am most anxious to do what is best for the minors and also not to ignore the natural rights of the mother, but I do not think it will be in the interest of the minors that I should make her their joint guardian. Assuming but not deciding that Clause 15, Section 2 applies I am not prepared to exercise my discretion under that section, but at the same time there must be inserted in the order appointing the grandmother guardian a provision that the mother is to have access at all reasonable times to the minors and that she is to be allowed at least three times a week on due notice to their guardian to take them out with her and keep them with her for a period not exceeding three or four hours at a time provided she returns them to the custody of the guardian at the end of this time, and if there is any difficulty in this being carried out or any opposition is made by the guardian to the mother having access to the children, I shall reconsider this order and either appoint the mother as joint guardian or possibly take other steps with regard to the minors, and there will be liberty to apply if there is any dispute with regard to the times and occasions on which access is to be given or on which the minors are to be taken out by their mother from time to time. I think the mother should write stating the time at which she desires to have access to the children and also the days and times that she desires to take them out, and as I have already said there will be liberty to apply if there is any obstacle placed in her way.

4. I understand that the mother is living at Entally which is outside the jurisdiction of the Court and there is no objection to her taking the minors to any house which she occupies in Entally, but of course if she desires to take, them a further distance outside the jurisdiction of this Court she must apply for permission in the ordinary way.

5. The guardian shouldering in a scheme providing for the application of the sums paid under the terms Of the will for the maintenance and education of the minors within two weeks from date.


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