P L D 1958 (W (PLP)

ABDUL HAMID, J.‑'The Senior Sub‑Judge, Peshawar, by his order dated the 13th of March .1953, appointed one Mst. Chand Bibi as the guardian of the person of two minors Sanaullah and Mst. Shama and Mst. Bulbullah, mother of the minors, as the guardian of their property. From this order three appeals have been preferred to this Court one by Mst, Bulbulla who claims to be entitled to the custody of the minors as well and the other two by Mst. Chand Bibi in which she claims for herself also the guardianship of the property of the minors. The facts which have given rise to these appeals are that one Asadullah Khan of village China died sometime in 1948 leaving behind a daughter who was of the age of about five years and a son who was of the age of about three years. He also left behind some property which consisted of agricul tural land and houses worth about one and half lakh of rupees situated in villages China and Amba Dher. The minors remained in the custody of their mother Mst. Bulboulla who after sometime marrid one Sher Muhammali who is not related to the minors. Asadullah has also left a sister Mst. Chand Bibi who is married to one Qadar brother of Mst. BBulbulla, and one step brother Kalimulla. Three applications were made to the Senior Sub‑Judge for appointment of guardian of the person and property of the two minors, one by Kalimullah, the step‑brother of Asadullah, second by Mst. Chand Bibi. paternal aunt of the minors and the third by Mst. Bulbulla the mother of the minors. The Senior Sub‑Judge in whose Court the proceedings were pending appointed Mst. Chand Bibi, the paternal aunt of the minors as the guardian of their person. He ignored the claim of the mother because by her remarriage with a stranger she had forfeited her claim to the guardianship of the person of the minors. For this decision he placed reliance on the rule of Mahomedan Law laid down in paragraphs 352 and 353 of the Principles of Mahomedan Law by Mulla, 13th edition). The applications of Mst. Bulbulla and Kalimullah in which they sought their appointment as guardian of the person of the minors were rejected. In respect of the property of the minors he was of the view that Mst. Bulbulla mother of the minors had preferential claim to her appointment as guardian of the property of her children and appointed her as the guardian of their property. Kalimullah's application was rejected. In her appeal in this Court Mst. Chand Bibi the paternal aunt of the minors, who has been appointed as guardian of their person claims that she should have been appointed as guardian of their property as well and Mst. Bulbulla who has been appointed as guardian of the property of the minors claims that she should be appointed as guardian of the person of the minors as well. Each of the two appellants in short claims for herself guardianship of both the person and property of the minors. We are of the opinion that it would have been in the best interest of the minors if the same person had been A appointed as guardian of both their person and property. If the custody of the minors lies in the care of one person an the management of their property in the hands of another the result would be constant bickerings and quarrels between the two and the interests of the minors will no doubt be injured by this arrangement. As the guardian of the property will have to manage the property for the welfare of the minors the income derived from it will have to flow into the hands of the guardian of the person for the maintenance and education of the minors. It is for these considerations as well that the welfare of the minors demands that both the custody of the minors and the management of their property should, if there are no legal or other obstacle in the way, be in the same hands. We are of opinion that the mother of the minors in spite of her remarriage with a stranger has still the interest of the minors at her heart and it will serve the interests of the minors best if their property is left in the care of their mother. If there had not been an insuperable obstacle in our way in appointing the mother of the minors as the guardian of their person we would have transferred the custody of the minors to her in order to keep the property and the person of the minors at the same place. But as by her remarriage with a stranger she has under the law to which she is subject forfeited her right to the custody of her minor children, it is not possible to transfer the custody of the minors to her and place the person and property of the minors in the same place. If that is not possible we have to see whether the interests of the minors would be served equally well if the management of their property be transferred to Mst. Chand Bibi to whose care the minors have been entrusted. As at the time of making these applications the girl was below the age of puberty and the boy was below the age of seven, the custody of the minors had to be entrusted to one of the female relations enumerated in paragraph 353 of Mulla's Mahomedan Law (13th edition). The mother's right stood forfeited by her remarriage with a stranger. Only a paternal aunt, Mst. Chand Bibi was available from amongst the female relations enumerated in that para and the minors have been rightly placed in her custody by the trial Judge. With that part of the order there can be no dispute and we are in complete agreement with it. It is based on a rule of Mahomedan Law to which the parties are subject. But Mst. Bulbulla s counsel attacked this part of the order basing his attack on three authorities cited below viz: Mst. Fatima v. Darwaz (A I R 1936 Pesh. 63), In re : Ghulam Muhammad (A I R 1942 Sind 154) and Tumina Khatun v. Gahar Jan Bibi (A I R 1942 Cal. 281). In the first case a girl of about three years of age was in the custody of her mother who had remarried a stranger and the application of her paternal grand‑father who claimed her custody was rejected. The learned judge came to the conclusion that it was for the welfare of the minor that the girl should be left with the mother and should not be handed over to her paternal grand‑father. Reliance in this case was placed on section 17 of the Guardian and Wards Act. In the second case the contest was between the step brother of the minors and their mother who had remarried a stranger. The learned Judge came to the conclusion that the applicant was an utter stranger and was not one of the persons who in law was entitled to the custody of the minors. The mother was considered entitled to the custody. Relying on Tumina Khatun v. Gahar Jan Bibi, lie said that the mother did not by remarriage with a stranger incur any disqualifica tion for the guardianship of the person of her minor children but only lost her preferential right. According to that proposi tion the mother is entitled to the custody of her minor children in spite of her remarriage with a stranger if she is in contest with a person who according to the rules of Mahomedan Law is not entitled to the custody of the children. In the third‑ case the contest was between the mother's sister (maternal aunt) of the minor who had also remarried a stranger on one side and step‑mother of the minor's father on the other. The custody was left with the maternal aunt. In the last two cases reliance was placed on section 17 of the Guardian and Wards Act, and it was held that under the Mahomedan Law a female by remarriage with a person who is not related to the minor within the prohibited degree does not render herself permanently disqualified for the custody of the minors but only loses her preferential right as against the female relations entitled to the minor's custody. If the rival claimant for the custody of the minor stands in a more distant relationship with the minors than one of the female relations entitled to their custody according to rule of Mahomedan Law then if the interests of the minors so demand the mother in the stranger's wedlock would still be entitled to be appointed as the guardian of their person. On the strength of these rulings the learned counsel for Mst. Bulbulla contends for the appointment of Mst. Bulbulla as the guardian of the person of her minor children. He says that this appointment will be in the best interest of the minors. We have been asked to keep section 17 of the Guardian and Wards Act in view and interpret the rule of Mahomedan Law stated in para 257 of Mulla's book in the light of the rule laid down in In re : Ghulam Muhammad and Tumina Khatun v, Ghar Jan Bibi. We are of opinion that the rules laid down in these authorities are correct in the context of the cases from which they arise. In those cases the contest was between the mother in a stranger's marriage and a person who was not according to the rule of Mahomedan Law one of the ten female relations entitled to the custody in the absence of the mother. In those cases section 17 of the Guardian and Wards Act applied and the person carrying the interests of the minor at heart becomes entitled to the custody of the minors. The mother was correctly considered to be such a person. But according to the facts of the case in hand the contest in between the mother why has forfeited her claim by remarriage with a stranger and one of the ten persons entitled to the custody of the minors. According to the rule of Mahomedan Law laid down in para. 257 of the Mulla's book the claim of the mother is liable to be rejected as against the persons enumerated in that para. In such circumstances they rejection of the mother's claim would be in accordance with the provisions of section 17 of the Guardian and Wards Act. That section requires that the Court should in appointing a guardian be guided by the consideration of the welfare of the minor" consistently with the law to which the minor is subject. This obviously denotes that the Court must also keep in view the fact that the appointment of the person, selected as the guardian of the minor should not involve contravention of the law to which the minor is subject. The language of the phrase "consistently with the law to which the minor is subject" clearly means that the appointment should be consistent and not inconsistent with the personal law of the minor. If the interests of a minor demand that his person should be in the care of his mother who has remarried a stranger, but the rule of minor's personal law forbids the appointment of such mother the appointment of the mother will be inconsistent with that law. In that case consistency with the minors personal law would demand that the claim of the mother should be ignored and another person who according to the rule of that law is entitled to the) custody of the minors be appointed as the guardian of their person. The appointment of mother or other females who, forfeit their rights by remarriage with strangers would be inconsistent with the rule of Mahomedan Law, and their claim i will be rejected even if the welfare of the minor demands, that they should be appointed as their guardians. The rule of Mahomedan Law has preference over considerations Oil minor's welfare. That obviously is the meaning of the phrase ' consistently with the law to which the minor is subject. There is support for this view in Mst. Kundun Begam v. Mst. Aisha Begum (A I R 1939 All. 15). It may however be mentioned that the rule of Mahomedan Law mentioned in para. 353 of Mulla's book also seek the welfare of the minor. If the mother of a minor remarries a person who is not related to the minor within the prohibited degree the welfare of the minor demands that he should not be under the roof of such a person. If her new husband in his relationship with the minor stands outside the prohibited degrees, the minor does not stand exposed only to the danger of receiving harsh treatment from him, as has been said in Tumina Khatun v. Gahar Jan Bibi, but also stands exposed to the danger of falling a victim to his evil designs if the minor be a girl. If in his relationship to the minor the new husband stands outside the prohibited degrees and marriage between him and the minor cannot be legally prevented it is essential, in the interest of the minor, that she should not be kept under his roof. We are of opinion that Mst. Bulbulla the mother of the minors has, by her remarriage with Sher Muhammad, forfeited her right to the custody of her minor children. The right to their custody has devolved upon the persons enumerated in para. 353 of Mulla's Mahomedan Law (13th edition) and as out of those the paternal aunt placed tenth in the list is available and she has come forward to claim her right the minors have been correctly placed in her custody. So far as the property of the minors is concerned, in our opinion it is in the welfare of the minors that the management of their property should be in the hands of the same person to whom their custody has been entrusted. If the management of the property is left in the hands of Mst. Bulbulla there will be constant demands from Mst. Chand Bibi for money which would be in need for the maintenance and education of the minors, for the expenses of their marriage and for other expenses which she may from time to time have to incur on their account. There will be constant demands for money from the side of Mst. Chand Bibi and constant efforts on the side of Mst. Bulbulla to withhold the transmission of money. The ultimate result will be that property will be dissipated or in any case full advantage will not be taken of it for the benefit of the minors. In our view the interest of the minors demands that the management of the property should also be in the hands of the person to whom the custody of the minors has been entrusted. We, therefore accept Mst. Chand Bibi's appeal and set aside the Senior Sub‑Judge's order relating to the appointment of Mst. Bulbulla as the guardian of the property of the minors and order that Mst. Chand Bibi shall be the guardian of the property of the minors as well. She will furnish security bond in Rs. 5,000 with two sureties for the proper management of the property of the minors. She will have to render annually to the Senior Sub‑Judge, Peshawar a complete account of the income of the property of the minors and the expenditure out of that income incurred on their behalf. Parties will bear their own costs. HABIBULLAH, J.‑ I fully agree. K. M. A. Appeal accepted