1985 PLP 161 (MLD)

S.7--Fitness of person to be appointed as guardian - Held, it is basically the jurisdiction of Family Court, to consider fitness of person to be appointed as guardian--Minors living with their mother, who had been nominated as guardian of minors by deceased father of minors to extent of insurance policies taken in name of minors--Mother of minors presented herself for deposition out of all claimants--Court finding that mother withstood the test of cross-examination by giving intelligent answers--Mother acted sensibly in making investments on behalf of minors also acted sensibly in regard to education of minors--Concurrent findings of lower Courts that she was fit to act as guardian of person and properties of minors, held, was quite justified. J. H. Rahimtoola for Petitioners. Shafaat Hussain for Respondents. This Constitutional petition brings into question the orders/judgments dated 16-2-1982 passed by VII Additional District Judge, Karachi and of 30-10-1976 passed by the 1st Family Court Judge, Karachi. The Family Court Judge had appointed respondent Mst. Arifa Shuja as the Guardian of her 5 minors sons and daughters from deceased Shujauddin Baig and had also appointed Mr.M.M. Mahmudi Advocate as co-guardian of the property of the said minors and had found that Mirza Imamuddin Baig alongwith his sons had raised disputes in regard to the shares of the minors' properties and had acted against the interest and welfare of the minors. While the learned A.D.J. in appeal filed ' y the present petitioners had agreed with the conclusions reached by the trial Judge but had replaced Mahmood Shuja as the co-guardian of the property the minors alongwith Arifa Shuja in place of Mr.M.M. Mahmudi on account of the fact that Mahmood Shuja had become a major by the time the appellate judgment was written on 16-2-1982. 2. The matter had been seriously contested between Arifa Shuja on the one side and Miran Imamuddin, who was father of the deceased Shujauddin, who in turn had left the minors and considerable property in the form of Factories, Insurance Policies, Cash, N.I.T. Units and Plots. The present petitioners who are the sons of Imamuddin and real uncle of the minors had also been joined as parties to the petition on their own application. Arifa Shuja had applied for being appointed as the Guardian of persons and properties of the minors under section 7, while Imamuddin had applied for the custody of the minors and had also applied that Arifa Shuja should be directed to deposit the amounts obtained from Insurance Policies in Court. Previous to this there had been an arbitration between the parties and the properties were distributed by the arbitrators and Shuja Industries and cash and N.I.T. Units had been allocated to the shares of the minors. Thereafter Imamuddin had filed Suit No. 306 of 1971 challenging the arbitration proceedings to be void as they were alleged to be based on writings and concessions obtained from him by coercion. The said suit was eventually dismissed as withdrawn. 3. The 3 family Suits No. 1337 of 1971 of Mst. Arifa Shuja and P.S. No.1093/71 and P.S. No.782/82 of Mirza Imamuddin were tried together. The parties filed objections to the application filed by the others. The objections were also filed by the petitioner No.1. 4. The only evidence recorded was of Mst. Arifa Shuja who was cross-examined extensively by the counsel of Mirza Imamuddin. Mirza Imamuddin or the present petitioners who had been impleaded in the proceedings did not examine themselves. They, however, examined Mr. Masood Ahmed Abbasi Advocate; who was one of the arbitrators, in their defence and also examined a clerk from Registrar of the Firm who produced the certificate of the registration of the Firm of Messrs Shuja Industries :n 1963. 5. Mr. J. M. Rahimtoola, counsel for the petitioners has raised several contentions. First contention was that Mahmood Shuja who was appointed as co-guardian with Mst. Arifa Shuja by the appellate Court was not even consulted by that Court and his permission was not sought nor his experience of doing any business was ascertained and, therefore, he could not be appointed as guardian of the property of the minors. He relied upon rule 418 of the Sind Civil Court Rules which provides that the Court shall in all cases, except for reasons to he recorded, examined as to the competency and fitness of the proposed guardian gad satisfy itself that proposed guardian has no interest opposed to that of the minors. It is correct that rule 418 was breached by the appellate Court inasmuch as Mahmood Shuja was not examined but the reason given by the Court for his appointment is that he had become a major and was the elder brother of the other minors. In any case, rule 418 is of a technical nature and it should not be allowed to defeat an order which is otherwise in accordance with law. On 24-4-1985, when the hearing of this petitioner was in progress, the said Mehmood Shuja was present in Court before me acid I had enquired from him, if he was willing to act as guardian of the properties of the minors and he expressed his willingness to do so. He had stated that he was doing his articleship in Chartered Accountancy. Such being the position and Mahmood Shuja, being the eldest brother of the minors and having no interest adverse to the minors and learning the highest proficiency in accounting, could reasonably be appointed by the appellate Court as a co-guardian of the minors' properties with his mother and I am, therefore, of the opinion that mere breach of rule, 418 should not stand in the way of Mahmood Shuja or make the impugned order as without lawful authority when in fact the appellate Court had the authority and jurisdiction to make the impugned order. In this respect Mr. Shafaat Hussain, counsel for respondent had relied upon P L D 1967 S C 492 where it had been observed that there can be no blind or rigid adherence if the nature of the cause or matter itself gives a contrary indication and that the Court should not loose sight of the fact that the overriding consideration is always welfare of the minor and the Court in such cases is really exercising a parental jurisdiction as if it were in loco parent is to the minor and therefore, this is not a jurisdiction in which there can, by its very nature, be any scope for any undue adherence to the technicalities. I respectfully follow those observations and I am, therefore, of the view that the appellate Court in the circumstances of this case did nothing wrong in appointing Mahmood Shuja as a co-guardian of its properties of his minor brothers and sisters as he must be having a reasonable proficiency in account matter. He is doing his article ship in Chartered Accountancy. There was no disqualification suggested against him and so the impugned order cannot be declared void on this ground. 7. Mr. J. M. Rahimtoola had relied upon P L D 1971 S C 124 for the proposition that the High Court can interfere where mandatory condition for exercising of jurisdiction by Court have not been fulfilled but the case in point is distinguishable as the Court in the present case before me had the jurisdiction to decide about the appointment of the guardian of the person and properties of the minor, and mere omission to question the proposed guardian about his fitness is not an objection to the very jurisdiction of the Court but it is only a procedural objection and hence the non-confirmity to the procedure of this nature does not vitiate the order. The petitioners' counsel then referred to section 7(3) of the Guardians and Wards Act which prohibits the appointment of a guardian until the powers of the guardian appointed or declared by Will or other instrument or by Court have ceased under the provisions of this act. He referred to section 39 of the carne act which provides for removal by the Court of a guardian appointed by Will or by Court on the grounds stated therein which includes an interest adverse to the faithful performance of his duties. Reading the two sections together the counsel contended that the entire approach of the two Courts had been completely wrong as they should i.e. first determined and terminated the guardianship of Imamuddin, and after his death, Jamiluddin and Eijazuddin before Mst. Arifa Shuja could be appointed as guardian. The contention raised by the learned is not justified. It is correct that the application of Mst. Arifa Shuja was under section 7 of the Guardians and Wards Act for appointment as guardian of the persons and properties of her is a fact that in paras 11 and 12 of the said application it had been stated that Imamuddin is creating obstacles in the very of investment being made in favour of the minors and that he was aiming himself to be guardian of the properties of the minors but he was not fit and proper persons to act as such, and in view of the steps taken by him, so far, his interests are apparently adverse to those of the minors. Therefore, essentially the said application of Mst. Arifa Shuja was not only for her appointment as guardian but it was also aimed at the removal of Imamuddin, from the guardianship, who was claiming to be so on account of being the paternal-grandfather of the minors. Therefore, objection raised by the learned counsel in respect of the approach of the two lower Courts below is not correct in substance and is superficial in nature. 8. The second limb of his argument in respect of the same contention was that by the time that the guardianship matter had come up for argument before the family Judge, Imamuddin had died and he had appointed by his Will the present petitioners to be the ' guardian of the minors. Counsel, therefore, submitted that Jamiluddin and Eijazuddin being testamentary guardian having been appointed by the grandfather of the minors, in the capacity of his being natural guardian, therefore, the present petitioners had in the first instance better claim to be the guardian of the properties of the minors and in the second instance unless and until they were removed under section 39 of the Guardians and Wards Act no person could be appointed as guardian of the minors. In this respect the petitioners have to face many hurdles in their way. Foremost is that the first natural guardian of the minors namely Shujauddin had clearly expressed his intention of appointing Mst. Arifa Shuja as the guardian of the properties of the minors of the deceased as he had appointed her as their guardian in the Insurance Policies which he had taken in their names. Of course in was not a former Will but no particular form of Will is prescribed under law and the intention of Shujauddin, deceased, was quite clear when he had name d his wife as the guardian of the minors for the purpose of the insurance, Policies issued in their names. Therefore, if testamentary guardianship, was to be considered then the claim of Mst. Arifa Shuja has a precedence, to the claim of the present petitioners who were appointed by the grandfather of the minors. If there was a contest between the two testamentary guardian, one appointed by the father of the minors and the other appointed by the grandfather of the minors then obviously the person appointed by the father has to be preferred because father, is the first natural guardian and grandfather comes only in the absence of the father. 9. The other obstacle in the claim of the petitioners to be considered as the testamentary guardian is that they had been named by a person who had been found to have claimed interest adverse to the minors and in this respect I am bound by the concurrent findings of the family Court and its appellate Court which have come to the conclusion that Imamuddin and his sons meaning thereby the present petitioners, had made claims adverse to the interest of tire minors. In this respect Mr. J.H. Rahimtoola wanted to persuade me that because the adverse claim made by Imamuddin had been eventually withdrawn and the arbitration award had been allowed to be made rule of the Court, therefore, there was no adversity in the claim of Imamuddin. But I am sorry I cannot agree with him. It is a fact that Imamuddin had made a claim of being the partner of Shujauddin in Shuja Industries and that claim of his was in fact in contradiction to his own writing Exh.7 where he had admitted that the partnership had been dissolved before the death of Shujauddin and that at the time of his death Shujauddin was the sole owner of the said Shuja Industries. The arbitrators had based their award on the said writing made by Imamuddin but for one reason or the other Imamuddin had challenged the said award and had challenged his own writing and, therefore, obviously he was making a claim which was adverse to that of the minors. If Imamuddin was a partner in Shuja Industries then the claim of the minors was obviously reduced by at least and it is, therefore, obvious to me that the claim of Imamuddin in respect of being a partner of Shuja Industry was clearly adverse to the claim of the minors and, therefore, the two lower Courts below were justified in the finding of adversity. I may also state here that Mr. Masood Ahmed Abbasi, D.W.1, had clearly stated that Imamuddin had never appeared before the arbitrator and it was only the sons of Imamuddin who were appearing before them. Therefore, whatever action was taken by Imamuddin was at the instance of these petitioners, and in fact I find that the objections to the application of Mst. Arifa Shuja made by Jamiluddin are almost the exact It copy of the objections filed by Imamuddin, therefore, Imamuddin and Jamiluddin were acting in concert with each other and both of them sail on the same boat. . 10. Moreover once it had been found that Imamuddin had made a claim adverse to the minors then thereafter the appointment of the petitioners was testamentary guardian-made by Imamuddin suffers from the same deficiency and disqualification with which the guardianship claim of Imamuddin has been defeated namely that of adversity. It is I quite clear to me that a natural guardian who is making a claim adverse to the minors cannot be allowed to nominee testamentary guardian. The same cannot be for the welfare of the minors. In any case, the stigma of adversity which was available against Imamuddin is equally available against the persons nominated by Imamuddin. 11. The obvious result is that, the approach of the two lower Courts below has been quite correct. In fact, the first issue was whether, Imamuddin alongwith his sons raised disputes in regard to the share of the minors in their properties and had all along been acting against J the interests and welfare of the minors. Both the Courts have concurrently given an affirmative finding on that issue which is not in any way perverse or without any basis. In any case, the High Court in its constitutional jurisdiction is not an appellate Court in respect of that finding. In P L D 1585 S C 131,it was held as under:-- "Where a Court (in contradiction to a persona designation) has jurisdiction to decide a matter, arid the mere fact that the decision on a question of fact or law is not correct, does not necessarily render it without lawful authority and certainly not illegal." In 1978 S C M R 335 it was held that in constitutional petitions the High Court should not confer itself into Court of appeal for purposes of evidence. I respectfully follow the above observations. The petitioners' counsel had stated that the petitioners had not been allowed to lead evidence. This contention is not justified in view of the fact that before the death of Imamuddin the petitioners' had been impleaded as parties in the suit and petitioner No.l had even filed his objections but none of them had presented himself for leis deposition being recorded K but they had riot made any application for examining any witness till their father died. They did nothing from 1972 to 1976 to lead any evidence and it was only on 23-9-1976 that they made an application under order I, rule 10 for being impleaded as a party. The same was rejected on the ground that they wanted to protract the proceedings. The application made by the petitioners in 1976 was completely uncalled for when they had been impleaded as a party in 1972 on their own application. 13. Lastly petitioners' counsel argued that Mst. Arifa Shuja was not a fit person to be appointed as guardian. This contention is completely uncalled for as it is basically a jurisdiction of the Family Judge to consider as to who is a fit person to be appointed as guardian. In any case, all the minors have been living with Arifa Shuja and she was nominated as the Guardian of the minors by the deceased Shujauddin to the extent of the Insurance Policies in the names of the minors and she is the only person who presented herself for deposition out of all the claimants for guardianship and in the lengthy cross-examination that had been directed against her, and which I have read alongwith Mr. J. I1. Rahimtoola, I find that she has given intelligent answers and she had withstood the test of the cross-examination and she had acted sensibly in purchasing Defence Saving Certificate in the names of the minors out of the proceeds of Insurance Policies and she had again acted very sensibly when she sent two minors to Burns Hall, Abbottabad for education and it is, therefore, evident to me that the finding of the two lower Courts that she was fit to act as guardian of the person and properties of the minors was quite justified. This constitutional petition is, therefore, dismissed. A.A. Petition dismissed.