advocatemmmohan
just another law knowledge bank
Legal guardian
Section 8 of the Hindu Minority and Guardianship Act, 1956 = selling of minor’s property with definite share is void even by natural guardian with out permission of the court – a minor or any person having interest in minor can question the same – father died – 3 daughters and their mother as legal heirs – 1/4 th share each got – mutation to that effect – sale is void against the minor in the absence of court permission = SAROJ … APPELLANTS VERSUS SUNDER SINGH & ORS. … RESPONDENTS = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40989
Section 8 of the Hindu Minority and Guardianship Act, 1956 = selling of minor‘s property with definite share is void even by natural guardian with out permission of the court – a minor or any person having interest in minor can question the same – father died – 3 daughters and their mother as legal … Continue reading
whether under the Guardian and Wards Act, 1890 for the welfare of the minor any person other than father can be appointed as guardian. Section 7 of the Act gives power to the court to appoint any person as guardian for the welfare of minor. = It is settled principle of law that the welfare of the minor is paramount for the appointment of the guardian. Section 6 of the Act provides that in case of a minor nothing in this Act shall be construed to take away or derogate from any power to appoint a guardian of his person or property or both, which is valid by the law to which the minor is subject. I am of the view that Section 6 of the Act only says that the Act will not take away the power to appoint a guardian provided under the law to which minor is subject, i.e. Muslim Law but it does not say that this Act does not apply to Muslims governed by the Muslim Law. Therefore, in case, if there is any provision under the Muslim Law providing the power to any authority to appoint the guardian, the same may continue and will not be taken away or derogated by this Act. Therefore, I am of the view that the provisions of Guardian and Wards Act, 1890 is applicable to the Muslim. Section 19 of the Act provides that the Court is not authorised to appoint or declare a guardian of a minor whose father is living and is not in the opinion of the Court, unfit to be guardian. However, Section 17(3) of the Act provides that if minor is old enough to form an intelligent preference the Court may consider that preference. Thus reading of Sections 7, 17 and 19 of the Act together it emerges that in the appointment of the guardian the welfare of the minor is paramount and in case, if minor is old enough to form an intelligent preference his desire and option should be given preference. In the case of Lekha Vs. Anil Kumar, reported in 2007 AWC-5-5494 the minor was aged about 12 years. Before the Court he has expressed his preference to stay with mother. Apex Court held that the minor was intelligent enough to express his desire and desire should be given preference. Apex Court further held that the welfare of the minor is paramount. Learned Single Judge of this Court in the case of Navin Singh vs. Jyoti Parashar, reported in AIR (All)-0-441 has held that while deciding the question of custody, the welfare of the child to be looked into and the claim of the mother can not be ignored or denied on the ground that the husband is natural guardian under Section 6 (a) of Guardians and Wards act, 1890. In my view on the facts and circumstances, namely that the father has divorced the mother in the year 2002 and remarried and has three children from the second wife and further minor is living since birth with the mother and now is aged about 15 years and is old enough to form an intelligent preference and has shown his desire before the Court on 16.02.2012 to live with mother. This Court is satisfied that the welfare of the minor is more appropriately be with mother and not with father and under Section 17 (3) of the Act his desire should be given preference. In view of the above, the appeal is allowed. The impugned order dated 30.08.2006 is set aside.
Reported/published in http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do HIGH COURT OF JUDICATURE AT ALLAHABAD COURT NO.5 FIRST APPEAL FROM ORDER NO.2826 OF 2006 Smt. Rizwana Begum @ Pappoo. ….Appellant Versus Noor Ahmad. ….Respondents ********** Hon’ble Rajes Kumar, J. Heard Sri T.A.Khan, learned counsel for appellant and Mohd. Islam, learned counsel appearing on behalf of the respondents. This is an appeal by … Continue reading
advocatemmmohan 