Decided on April 24,1953



Mack, J. - (1.) This is an appeal against an order of the learned District Judge of North Malabar appointing a father as guardian of the person and property of his minor daughter Rajalakshmi, who was born on 5-3-1937 and was and is, I understand, still a boarder in a hostel attached to the Convent High School, Badagara. The appellant, who opposed the father's petition, is the minor's maternal uncle, who claimed to be appointed or nominated as the minor's guardian in a partition deed in her mother's tarwad, Ex. B. 1 dated 26-11-1948. The parties are governed by Marumakatayam law and under Section 14 of the Marumakattayam Act the father shall be the guardian of his minor children, other than married minor daughters under the guardianship of their husbands, in respect of person or property. The crux of the dispute, as Mr. Krishna Variar for the father put it is, who should have the right to collect rent's from the tenants of the property, which fell to the share of the minor under the partition.
(2.) My attention has been drawn to a line of decisions, which took the view that an application by a Hindu father for an order appointing him guardian of the person of his minor child does not lie because Section 19 of the Guardians and Wards Act prohibits a court from making such an appointment. This view was taken by Leach J. as he then was in - 'Yenkateswaran v. Saradambal', AIR 1936 Rang 67 (A); a view followed in Sivasankara Mudaliar v. Radhabai Ammal', AIR 1939 Mad 611 (B); by Leach C. J. & Krishnaswami AiyangarJ. This view was founded in 'AIR 1936 Rang 67 (B) on some observations by their Lordships of the Privy Council in Mrs Annie Besant v. Naraya-niah', AIR 1914 PC 41 (C); & on some otherde-cisions including -- 'Bai Tara v. Mohanlal Lallubhai', A. I. R. 1922 Bom 405 (D) in which Sir Norman Macleod made the following observation: "I may point out at once that the application ought to have been dismissed, because 'such an application by a Hindu father under the Guardians and Wards Act, presumably under Section 19, is not competent, and a considerable amount of confusion has arisen in the course of the argument from neglecting to recognise that fact." It is noteworthy that in the concurring judgment by Shah J. he said this: "It is not necessary for the purpose of "this appeal to decide the question as to whether a father can properly make an application under the Guardians and Ward's Act to be formally appointed the guardian of his minor son." I cannot regard this line of decisions as ruling out under all circumstances an application by a father to be declared the guardian of person and property of his minor child, if that position to which he is ordinarily entitled by law is seriously and vigorously challenged by a third party.
(3.) In -- 'Raghaviya v. Lakshmiah', A. I. R. 1925 Mad 398 (E)' it was held that on an application by the father of an infant girl, it was competent to the court to declare him the legal guardian and direct the custody of the infant to be given to him. Venkatasubba Rao J. took the view that in 'AIR. 1914 P. C. 41 (C)' the Privy Council did not intend to decide finally the meaning of Section 19 of the Guardians and Wards Act. That was a case in which the father really sought to recover custody of his child. Jackson J. preferred to support the lower court's order by reference to Section 25 as one for custody, expressing the view that under Section 19 the court was not authorised to declare anybody, not even the father, as guardian of the person of a minor whose father is living and in the opinion of the court is not unfit. With great respect to the view taken by Leach J. in --.'AIR 1936 Rang 67 (A)', I find myself unable to agree that Section 19 of the Guardians and Wards Act prohibits a court in all cases from appointing a Hindu father as guardian of the person of his minor son. It is true a Hindu father is the lawful guardian of his minor children, but with great respect I am unable to agree that as a declaration by a court cannot increase his powers in that respect a court is barred from making such a declaration. When the lawful rights of a person, particularly those statutorily laid down, are strenuously challenged by third parties, it appears to me quite competent for a court to declare on an application such a right and it is to declare and enforce such rights that courts exist. The line of decisions relied on by Mr. Gopala Nambiar for the appellant really dealt with petitions by a father who really wanted custody to be declared the guardian of the person of his minor child by the application of Section 19 according to which the court was not competent to declare any other person as guardian so long as the father was a fit person, whereas the correct and more appropriate section under which the father should have applied was Section 25 of the Guardians and Wards Act under which it is well settled that the interests of the minor are in such a matter the paramount consideration.;

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