P L D 1965 (W (PLP)

This revision petition had originally been filed as an appeal against the order of the Guardian Judge under section 12 of the Guardians and Wards Act (hereinafter referred to as the Act), but on an objection as to its maintainability a prayer was made by the learned counsel to treat it as a revision petition. It was admitted to a full hearing and the said question was left for decision by the Bench hearing the matter. The learned counsel for the respondents has no objection to this appeal being treated as a revision and I order accordingly.

2. The facts giving rise to this revision petition are these. An application for appointment of a guardian for the person and property of the minor children of Ch. Muhammad Ishaq deceased was filed by Mst. Fazal Bibi respondent, the grandmother of the minors, and on an application moved for interim protection of the property of the minors, the Guardian Judge appointed an Advocate of this Court as official receiver. It may incidentally be mentioned that the death of the father of the minors has been the subject‑matter of a criminal investigation, in which the present petitioner Aftab Nasir, Babar Ahmad and Mst. Balqees Begum, sons and widow, respectively, of the deceased, are involved. Although an attempt was made by respondent No. 1 (hereinafter called the respondent) to secure interim custody of the minors, but as Mst. Balqees Begum (mother of the minors) was admitted to bail meanwhile, the minors have been permitted to be returned to her custody and at present they are living with her. During the pendency of guardianship proceedings, the respondent finding that house No. 24 situate in street No. 19, Mughalpura Ganj, Lahore, which property was entered in the Schedule of properties of the minors in the application made by the respondent, was about to be alienated to third parties, moved an application on the 19th.of April 1964 under section 12 of the Act for temporary custody and protection of the said property. On this application notice was issued to the petitioner for the 18th of June 1964 and an interim restraint order passed on the 7th of May 1964. A reply was filed to this application by the petitioner on the 18th of June 1964, in which it was pleaded that the said house was the personal property of the petitioner and was not a legacy of the deceased Ch. Muhammad Ishaq. It also transpired that half of the house had actually been mortgaged by the petitioner with one Mst. Umtullah Begum on the 7th of May 1964. The Guardian Judge came to the conclusion that although the property stood in the name of the petitioner and not of the deceased, the real beneficiary of the house was the deceased. He further observed that if the petitioner is found to be guilty of patricide in the criminal case pending against him, he will be disentitled to the inheritance of the property left by the deceased in the circumstances he considered it fit to issue a status quo order regarding the remaining half portion the house to the petitioner along with other respondents in the application before the Guardian Judge was restrained front transferring the half portion of the house by sale, mortgage, lease or even on tenancy till the proceedings in the main case were concluded.

3. In this revision petition it has been argued that under section 12 (1) of the Act, the Guardian Judge can proceed against the property of the minor and not of third parties. It has been further contended that in all cases where there are rival claimants to a particular property, unless the minor has a prima facie title to the property in dispute, the Guardian Judge has no jurisdiction to pass any orders in that regard. In support of this contention the learned counsel for the petitioner has relied on Mst. Pounchbai v. Dayaram Tekchand (2 I C 369) and Daman Singh v. Maktul Kaur (A I R 1955 Pb. 137). As against this the learned counsel for the respondent has cited Miri Mal v. Kanshi Parsad (93 I C 328). He has also referred to section 82 of the Trusts Act, 1882, and argues that as the land underneath the house had been purchased by the father of the petitioner, when the latter was just a lad of seven years of age, and the house itself having also been built by the father, the petitioner was a benamidar and not the real beneficiary. In this respect he has relied on the original sale‑deed dated the 18th of February 1952 (produced by the petitioner in this Court) in which an endorsement by the Registrar saying that the sum of Rs. 200.00 out of the total price of Rs. 300.00 has been paid to the vendor by Muhammad Ishaq (the father of the petitioner) appears. The learned counsel has also referred to some observations in Thiruvenkatasami v. Ranganathan (A I R 1934 Mad. 496) but this authority rather supports the contention of the learned counsel for the petitioner. The dispute in that case related to an amount offered to be deposited in Court by a debtor which was alleged by him to be in deposit on behalf of the minor. He asked the Court to appoint a guardian for the minor in respect of that amount. The minor's right to refund was disputed by his maternal grandfather and it was held: "The question whether the fund really belongs to the minor or to his maternal grandfather, cannot be decided in this petition filed under section 7, Guardians and Wards Act. The mere fact that the appellant disputes the minor's rights is not enough to oust the jurisdiction of the Court to appoint a guardian for the minor in respect of this fund. In order to enable the minor to have his right established to the fund in a properly framed suit, the appointment of a guardian may be necessary. Any such appointment will be conducive to the welfare of the minor." The learned Judges of the Madras High Court in this case relied on the decision of this Court in Mir Mal v. Kanshi Parsad, in which the learned Judge had chosen not to compel the minor to bring a suit as regards deposit receipt which was in the name of the minor and his maternal‑uncle payable to either or survivor. The learned Judge dealing with the case held that as prima facie the receipt was payable to either or survivor on the death of Devi Parsad, the legal interest would pass to the minor, but at any rate it was obviously for the welfare of the minor that he should not be compelled to bring a suit as regards that deposit receipt and it should be left to the parties to‑establish their title to this receipt in a civil suit. The learned Judge in order to safeguard the interest of the other party while accepting the appeal placed restriction upon dealing with the deposit receipt in the special circumstances of that case.

4. There is no doubt that the doctrine of advancement of English Law does not apply in our country, and if a property is e purchased or constructed by the father in the name of his minor child, the latter holds the property merely as a benamidar and the parent is the real beneficiary of the property. In this respect reference may be made to Gopeekrist Gosain v. Gungapersaud Gosain (6 Moore's I A 53), Maulvie Sayyud Uzhur Ali v. Mst. Bebee Ultaf Fatima (13 Moore's I A 232); Bilas Kunwar v. Desraj Ranjit Singh and others (42 I A 202), Kerwick v. Kerwick (I L R 48 Cal. 260), Lakshmiah v. Kothandarama (A I R 1925, P C 181) and M. J. McGrath v. Mrs. M. K. McGrath (P L D 1952 Lah. 533). Viewing the case from this angle, although the house in question ostensibly stands in the name of the petitioner, it cannot be ruled out that in law he is merely a benamidar unless established otherwise. The contention of the learned counsel for the petitioner that the question of title could not be decided by the learned Guardian Judge has force because .the jurisdiction conferred on the Guardian Court is of a very special and limited character and the procedure prescribed under the Act being of a summary character, though appropriate for determination of questions arising therein, is very different from the procedure laid down in the Civil Procedure Code for the trial of suits. The learned Guardian Judge has overstepped his jurisdiction in deciding the question of title of the house in these proceedings and the impugned order suffers from a legal infirmity in this respect. The proper course would have been to direct the petitioner to get his title to the house in question established in the civil Court and to keep the property under restraint in the meanwhile. I, therefore, accept the revision petition and the order, of the learned Guardian Judge will stand modified to the extent that the entire house will be treated as legacy of Ch. Muhammad Ishaq deceased subject to any decree of the civil Court that may be obtained by the petitioner in this regard. There will be no order as to costs. K. B. A.Petition accepted.