@DELETEUPPERDATA
Ritu Raj Awasthi, J.@mdashSince both the appeals arise out of the same order and between the same parties, as such, they are being decided by
a common order. Heard.
Both the appeals have filed challenging the combined judgment and order dated 23.8.2014 passed by the learned Additional District and Sessions
Judge, Court No. 10, Saharanpur in Misc. Case No. 35 of 2011, Shakeel Ahmad v. Tanveer and others and Misc. Case No. 47 of 2011,
Shamsher Ali v. Irfan and others, filed under the Guardian and Wards Act for appointment of guardian of minors, namely, Shah Hisam aged about
11 years and Shah Hasan aged about 9 years, son of Mustaqeem Ahmad, resident of Village Labkari Pargana, Tehsil and District Saharanpur as
well as to their property. By the said order the case of appellant has been dismissed and the application 4-Kha filed in Misc. Case No. 47 of 2011
by Shamsher Ali has been allowed.
2. Learned Counsel for appellant submits that the appellant is the real brother of the father of minor children and, as such, he is nearer in
relationship in comparison to Shamsher Ali who is maternal uncle of the minors, therefore, he has a right to be appointed as guardian of the minors
as well as to their property in question.
3. It is also submitted that the welfare of the minors would be better under the guardianship of the appellant as they would be better looked after in
his guardianship, therefore, he should be appointed as their guardian. The learned Court below has wrongly rejected the application preferred by
the appellant registered as Misc. Case No. 35 of 2011 without properly considering the contention raised therein.
4. I have considered the submissions made by learned Counsel for appellant and gone through the record.
5. Brief facts of the case as set out in the impugned judgment and order are that the minors, namely, Shah Hisam aged about 11 years and Shah
Hasan aged about 9 years are the children of Mustaqeem Ahmad (father) and Smt. Gulshana (mother). The father and mother of the minor
children have died and at present they are living with their maternal uncle (mama), Shamsher Ali. After the death of Mustaqeem Ahmad, Smt.
Gulshana had come to her maternal house and stayed with her parents and brother, Shamsher Ali. Smt. Gulshana had died on 30.9.2009. After
the death of Mustaqeem Ahmad his maternal uncle Khalil Ahmad was appointed as custodian of the property of minors. Khalil Ahmad had died
on 18.1.2011. Thereafter, the appellant had allegedly taken possession of the property of the minors. In the revenue records, the name of Khalil
Ahmad was recorded as guardian of the minors.
6. The learned Tribunal considering the submissions made on behalf of appellant as well as Shamsher Ali has appointed Shamsher Ali as guardian
of the said minors and has issued direction for proper care and attention of the minor children for their well-being. The learned Court below has
also directed that the guardian Shamsher Ali shall not dispose of the property of the minor children without permission of the Court. The said
property shall not be mortgaged and the nature of property shall not be changed. He has also been directed to provide accounts of the income
earned from the property of the minors at the end of every financial year in the month of March to the Court.
7. It is to be noted that the application for appointment of guardian registered as Misc. Case No. 35 of 2011 was filed under section 10 of
Guardian and Wards Act, 1890. Section 10 of the Act relates to the form of application. Under section 7 of the Act, power has been given to the
Court to make an order for appointment of a guardian.
8. Learned Counsel for appellant submits that the application was wrongly moved under section 10, it should be read as filed under section 7 of
the Act.
9. Be that as it may. So far as the contention of learned Counsel for appellant that he being the brother of the father of minor children is nearer in
relationship in comparison to respondent-Shamsher Ali and, as such, shall be appointed as guardian of the minor children is concerned, suffice is to
observe that as per the facts of the case the minor children right from the death of their father are living in the house of their maternal grandparents
and at present they are living with respondent-Shamsher Ali who is the maternal uncle (mama) of the minor children. The mother of minor children
had died in the year 2009. The date of death of father of children is not known to the appellant. It appears that the father of the minor children had
died prior to the death of their mother. The appellant was never custodian of the property of minor children as after the death of Mustaqeem
Ahmad, one Khalil Ahmad was the guardian of the minor children and his name was recorded in the revenue records.
10. It is the admitted case of the parties that the minor children are not living with the appellant. Simply because the appellant is nearer in
relationship does not mean that he has a right to be appointed as guardian.
11. The Court has to look after the interest of the minor children while appointing a guardian. The learned Court below has rightly come to
conclusion that Shamsher Ali being the maternal uncle (mama) of minor children shall be appointed as guardian of the minor children as well as to
their property.
12. I am of the view that the interest of the children is better protected in the guardianship of Shamsher Ali.
13. It is also be noted that the learned Court below has put certain conditions for the guardianship of Shamsher Ali. It has been provided by the
learned Court below that Shamsher Ali, the guardian would not sell the property of minors without permission from the Court, it shall not be
mortgaged with any Bank and the nature of the property shall not be changed and accounts of income from property in question shall be furnished
to the Court every year. In view of above, I do not find any infirmity or illegality in the impugned judgment and order.
The appeals being devoid of merit are dismissed at the admission stage.
