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First Appeal from Order No. 119 of 1961, decided on 16th October 1967.

Ss. 7 &, 10 Appointment of guardian of person and property of minor‑Powers of Guardian Court not to be used mechanically‑Affairs of minor being managed properly under family arrangements‑No interference called for on part of Guardian Court.

Mst. Fatima v. Mst. Rani 101 P L R 1915; Usaf All Mamooji v. Alibhoy Mamoonji and others A I R 1927 Lah. 789 and Mst. Hayat Khatoon and others v. Mst. Sharam Khatun and others 93PR1914rel.

Guardianship‑Guardian of property of minor‑Father, and after him, paternal grandfather or executors nominated by them in same order‑Paternal uncle of minor has no better right to appointment as guardian as against mother of minor.

Mulla's Muhammadan Law, 15th Edn., pare. 359, p. 296 ref.

Alimullah Khan v. Abadi Begum I L R 29 All. 10 rel.

Maulvi Sirajuddin Ahmad for Appellant.

Aziz Ahmad Bajwa for Respondent.

Dates of hearing : 28th, 29th September and 16th October 1967.

This is a first appeal filed against the order of Ch. Muhammad Sharif, Guardian Judge, Multan, dated 30‑9‑61. whereby he refused to appoint the present appellant as the Guardian of the person and the property of the minor Ahmad Ali, who is the son of Muhammad Shafi, deceased brother of the appellant. This family came to Pakistan after the Independence and some land was confirmed to the members of the family, out of which 19 acres fell to the share of Muhammad Shafi deceased. It appears from the record that Muhammad Shafi died on 23‑6‑1954 and Ahmad Ali, the minor, in this case, was born four months after the death of his father. The present application for appointment of the person and guardian of the minor by the petitioner was filed by the appellant on 6‑5‑1960. It was alleged in the application that the minor was with her mother, who had married another person and in fact, therefore, the minor was in the custody of that person. It was also alleged that Mst. Amine Begum, the mother of the minor and her second husband wanted to misappropriate the property of the minor.

2. The application was filed in the prescribed form on 6‑5‑1960, but was further amended, and Aziz Ahmad alias Aziz Din, the second husband of Amina Begum and Yousaf Ali, her brother were also impleaded as respondents.

3. Aziz Ahmad and Amina Begum filed separate written statements. It was averred by Aziz Ahmad that the deceased father of the minor left 191 acres of land out of which 1/8th was inherited by Amina Begum and the rest 7/8th by the minor. It was further asserted that the widow had been driven out by the paternal relatives of the minor during Iddat, and she was compelled to enter into a second marriage for the protection of her child. In both the written statements it was alleged that the application for appointment of guardian by Rashid Ahmad was actually a manoeuvre to grab the property of the minor. In the written statement filed by Amina Begum, it was stated that Rashid Ahmad lead been in possession of the minor's property for a long time; and was appropriating the produce to himself without caring to maintain the child that he even did not care to report the death of the minor's father to the Revenue authorities and it was two months before the filing of the written state ment which was on 16‑7‑60 that a mutation bad beets attested in the name of the minor and his mother on the report of Yousaf Ali, the maternal uncle of the minor. It was also asserted that the application for appointment as a guardian was a counter blast to the appointment of a Commissioner by the Tehsildar on the application of mina Begum for the purpose of appor tioning the share of the crops to the mother and the minor. It was also asserted that there was no need for the appointment of a guardian at all.

4. The petitioner‑appellant led evidence in support of his case. Abdul Karim (P. W. 1) (wrongly described in the order of the lower Court as Abdul Qayum) stated that the minor was not being educated, and the mother had taken another husband. This witness does not appear to have any intimate knowledge of the family of the parties he even did not know the name of the father of the minor, nor did he know, where the property of the minor was, and in whose possession it was. Nawab Din (P. W. 2) stated that the minor was not being properly brought up and there was no arrangement for his education. He also stated that Yousaf Ali, the brother of the minor's mother was receiving the produce of the land. The witness, however, candidly admitted that before that Rashid Ahmad was receiving the produce and was not giving any share to the minor out of it. According to this witness, the appellant used to pay Rs. 10 or Rs. 20 to the minor at times but had never paid him his full share. Khurshid Beg (P. W. 3) stated that the minor was not being properly brought up, but admitted that the appellant was reaping the harvest of the land belonging to the minor and gave him only clothes, etc. Hakim‑ud‑Din (P. W. 4) was produced to show that Yousaf Ali, the maternal uncle of the minor wanted to sell the land to him. This witness also stated that the minor's maternal uncle Yousaf Ali was lifting the crops. Abdul Ghafur (P. W. 5) stated that the minor was not being educated and was not being brought up in a proper manner. The appellant appeared as P. W. 6 before the Guardian Judge and asserted that the minor was not being educated and that Yousaf Ali his maternal uncle was misappropriating the income of the property and was not spending anything on the minor. He, however, admitted that the child remained all along with the mother. He also admitted during cross‑examination that the property of the minor yielded an income of about Rs. 1,400 per annum. He also admitted that the mother of the minor had received the Batai for the first time through a Commissioner and before that he was receiving the Batai but asserted that he was giving it to Yusaf Ali the maternal uncle and Aziz, the step‑father of the minor. He said that he did not obtain any receipt for these payments.

The respondent, Mst. Amine Begum produced Sarfraz Ahmad Patwari Halqa to show that till 11‑4‑1960, nobody had reported the death of her deceased husband to the Revenue authorities and it was at Yusaf's instance that on 11‑4‑1960 a mutation was entered. Allah Ditta R. W. 2 said that Rashid appellant had received the Batai for four double harvests. Muhammad Ramzan R. W. 3 is a school teacher and made a statement that Ali Ahmad minor had been admitted it; the first Primary Class on 5‑5‑1961.

Hanif R. W. 4 stated that the minor was being properly brought up by the mother and that there was no need for the appointment of a guardian in the circumstances of the case. He also stated that Rashid Ahmad never paid anything to the minor on account of Batai. Yusaf R. W. 5 the maternal uncle of the minor stated that he and the mother of the minor were managing the property and that Rashid Ahmad had never paid anything out of the share of the minor.

5. The learned Guardian Judge rejected the application of Rashid Ahmad and held that there was no need in the circum stances of the case to appoint a guardian. At the time of the admis sion of this appeal, a Bench of this Court passed an order that the appellant should submit a statement of accounts relating to the period for which he was managing the property of the minor. The appellant deposited a sum of Rs. 18,00.15 to the credit of the minor, out of a sum of Rs. 2,127.15, which he admitted to have received in all on behalf of the minor during the period, he was managing his property.

6. Lengthy arguments were addressed to me in this appeal and as more than six years had elapsed, I thought it proper to call the parties and consult the wishes of the minor, who is about 13 years of age now. The appellant asserted even before me that the boy was not being educated and was compelled to sell Ice Cream in the streets of the town. The parties and the minor appeared before me on 16‑10‑1967. 1 put questions to the boy and the replies he gave to me indicated that he was quite intelligent. He stated that he was studying in the 6th class. I wrote something in Urdu and gave that to him to raad. He correctly read the whole of it. He knew English alphabet, and could also read Persian. This shows that he is receiving proper education according to his status in life.

7. The evidence in this case clearly shows that the appellant is not a fit person to be appointed as a guardian either of the person or the property of the minor. According to the narration of events given by him in his application (Civil Miscellaneous No. 1052/62) filed in the High Court, his brother died on 23‑6‑1954. The evidence of Patwari R. W. 1 proves that he never cared to report the death of his brother to the Revenue authorities, and it was only on 11‑4‑1960 that the death of the minors's father was reported by Muhammad Yousaf to the Revenue authorities. His witnesses clearly stated that he used to appropriate the crops to himself and would occasionally dole out a sum of Rs. 10 or Rs. 20 or a pair of clothes to the boy. He deposited a sum of Rs. 1,800.15 under the directions of this Court, although on his own showing, he was receiving the income of the property since Kharif, 1957 to Kharif, 1959 and the approxi mate income from the land was about Rs. 1,400 per annum. Mst. Amina Begum, the mother of the minor was compelled to request the Tehsildar to appoint a Commissioner for the purpose of delivery of their share of the crops. It is difficult to believe the statement of the appellant that he was delivering the share of the minor to his maternal uncle anti his step‑father, but did not obtain any receipt.

8. The learned counsel for the appellant, Maulvi Siraj Din, vehemently argued that it was necessary to appoint a guardian of the property of the minor, and that maternal uncle of the minor was not the proper person for managing his affairs. It is in evidence that Yousaf Ali, maternal uncle and Mst. Amina Begum, the mother of the minor are managing the property of the minor. The evidence produced by the appellant before the Guardian Judge was not able to establish any misconduct on the part of the mother. It has been held in a number of cases that where there are satisfactory family arrangements for the management of the property of a minor, no guardian need be appointed. Reference in this connection, may be made to the cases of Mst. Fatima v. Mst. Rani (101 P L R 1915) and Usaf Ali Mamooji v. Alibhoy Mamoonji and others (A I R 1927 Lah. 789). In the first case the contest was between the mother and grand‑mother of the minor, and the Chief Court rejected the application of the grand‑mother for appointment as guardian. In the second case, the contest was between the uncles of the minor girl. The father had in his will left the girl to the care of his three brothers. Another brother of the father of the girl filed an application for appoint ment as guardian of the girl. The District Judge refused to appoint a guardian. On appeal, the High Court held that there was no need for the formal appointment of a guardian when the minor's interests were looked after without this being done. Law does not make it incumbent upon the Court to appoint a guardian in every case, in which an application is moved before it. In Mst. Hayat Khatoon and others v. Mst. Sharam Khatun and others (93 P R 1914.), where the father's sister of the minor children of the deceased from two wives and a brother of the second husband of one of the widows were contestants for appointment as guardian of the property and person of the minors and the Guardian Judge appointed a Hindu Lambardar as guardian of their property, the Chief Court held that the District Judge should not have entertained either of the applications and should not have interfered at all with previous family arrangements, which were quite satisfactory. It was found that the two widows were pulling on well and were quite able to look after the interests of their children. Strong observations were made by Sir Alfred Kensington, the learned Chief Judge, who heard the case. It was remarked:‑

"It is much to be regretted that she (i. e. Hayat Khatoon) should have started the complication by an ill‑considered application, and still more that a District Judge of experience should have taken the matter up under the Act. As a general rule far less harm is done by leaving people to manage the affairs of their children in their own way than by attempting to do it for them through the agency of a District Court."

The above may appear to be an extreme case, but it firmly lays down the principle that the powers of the Guardian Judge in theft matter of appointment of the guardian of the person and property of a minor is not to be used mechanically and where the affairs of the minor are being managed properly under a family for on the art of the arrangement, no interference is called Guardian Court.

9. According to Islamic Law, the guardian of the property of a minor is the father and after him, the paternal grand‑father or the executors nominated by them in the same order. (See Mulla's Muhammadan Law, Fifteenth Edition, para. 359, p. 296). It was held in Alimullah Khan v. Abadi Begum (ILR 29 All.10), that brother of the deceased father of a minor has no better right to be appointed as a guardian as against the, mother.

10. In view of the above, I am inclined to hold that the order of the learned Guardian Judge was in accord with law and the demands of justice. I find no merit in this appeal, which is hereby dismissed with costs.

A.E. Appeal dismissed.

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