P L D 1963 (W (PLP)

5. There is nothing on the record to make it clear as to when Mst. Bhagul was re‑married, but counsel for the parties estimate that it was soon after the death of Rustam Khan and maybe, after Mst. Bhagul had left the family house or was turned out from it by Ali Bux. The association with these deeds of the mother of the minor, the father and the new husband of the mother of the minor and the step‑uncle of the minor is to be noted, because they have together hurriedly settled the future of this child of three years of age as well as divided up the property. There were three co‑sharers in the property and they were the minor, her mother and the step‑uncle of the minor, namely, Ali Bux. The interest of the minor was as the daughter of Rustam Khan, the interest of Mst. Bhagul was as the widow of Rustam Khan, Ali Bux was interested as the step‑brother of Fustam Khan. The share of the mother has been separated, but the shares of the minor and her step‑uncle have been allowed to remain joint. The partition deed states that the better part of the land and all movable property has been given to Mst. Bhagul, but I do not see any convincing reason for believing this. The stand of Mst. Bhagul is that actually she has received no movable property. It appears that the deed of partition and the deed of marriage were devised by Ali Bux to get control over the minor and her property. According to Mst. Bhagul, he had offered to marry her and later has been instrumental in bringing about her marriage with her present husband. The new husband played the game of Ali Bux at the time of the execution of the two documents and his marriage is now used by Ali Bux as a disqualification of Mst. Bhagul for guardianship.

6. Mr. Fazeel has argued that Ali Bux, applicant, ought to be granted the custody of the minor who is now about seven years of age, on the following grounds :‑ (i) That the mother of the minor, namely Mst. Bhagul, has re‑married; (ii) That once the minor allegedly fell ill for about eight months and the mother did not look after the child; (iii) That the first wife of the new husband of the minor's mother also lives with them and that she has got her own children; (iv) That the minor was never brought up by her real mother but was looked after by Mst. Zarran, who is a daughter‑in‑law of Ali Bux; (v) That those who have signed the partition deed, have by the document entrusted the guardianship of the minor to the mother up to the age of seven years and thereafter to Ali Bux.

7. The first ground only is of legal importance and the rest are dependent on facts. As far as the illness of the minor (ground ii) is concerned, there is no satisfactory evidence that the child fell ill for eight months and was not looked after by her mother. So far as the claim that Mst. Zarran brought up the child is concerned (ground iv) it does not seem to be of any substance, because it is essentially based on the allegation that all members of the family were living together up to the death of Rustam Khan. If the father, mother, grand‑parents and other relations were living together and Mst. Zarran showed affection to the child, about which there is no clear evidence, then that might have been a consequence of the joint residence and has not necessarily anything to do with the bringing up of the minor child. The first wife of the second husband of Mst. Bhagul (ground iii) is said to be living along with her children in the same house in which the mother of the minor is living with her new husband and the minor. This argument is meant to lead to the conclusion that the minor child may not be looked after as well as she could be if her guardianship was entrusted to the applicant Ali Bux. This argument is sought to be supported by the fact (ground v) that several relations of the minor child had agreed to grant the guardianship of the minor by the deed of partition to Ali Bux.

8. But the real question for determination is whether Ali Bux is at all the proper person to be the guardian of the minor or not, because if he is not, then his application should be dismissed irrespective of who else becomes the guardian of the minor child. This is the short answer to the first ground. Further reference will be made to it later.

9. As indicated above, Ali Bux has partitioned the property but his share is joint with that of the minor, and there is nothing on the record to show that he has paid anything for the minor. In fact, there is no mention of the income and management of the minor's property in the application of Ali Bux by which he seeks to become the guardian of the person of the minor. Moreover, he is interested in keeping the minor child under his control by marrying her to his grandson. This control is against the interest of the minor in view of possible disputes that may arise in future with regard to the validity of the marriage, the validity of the partition deed and accountability of Ali Bux. It is not impossible that he has shown in the partition deed that all the movable property of considerable value was ostensibly given to the mother of the minor, because actually he had no intention to part with it. The proper course in these cir?cumstances would not be to let the child come under the control of Ali Bux in such a manner as to deprive her of the chances of getting relief with respect to her marriage and her property.

10. The order of the trial Court is convincing with respect to the unsuitability of Ali Bux as the guardian of the minor, and I feel inclined to agree with that view. Mr. Fazeel wanted to address elaborate argument to show that the mother has lost her right to be the guardian of the child because of her re?marriage. That may be found to be so when a proper person applies for guardianship, but as Ali Bux is not a fit person to b the guardian, as the child has been all along in the custody of her mother and nobody else who is better qualified than her, is coming forward to claim the guardianship, the loss of her right or preferential right to Hizanat is immaterial in these proceedings. Mr. Fazeel has argued that Mst. Zarran who has allegedly brought up the child, is a better qualified person and that, therefore, she should be considered for the guardianship of the child in preference to the mother. She has, however, not applied to be the guardian, therefore, I would not comment on the preferences for such an appointment between her and the mother. Whether anybody else hereafter applies to become the guardian of the minor child or not, is outside the scope of the present proceedings. In these proceedings I think that the view taken by the trial Court is fair as well as correct. I, therefore, see no reason to interfere with the judgment of the trial Court and dismiss this appeal with costs. K. B. A. Appeal dismissed.