1986 PLP 329 (CLC)

Abdul Waheed Siddiqui for Respondents Nos. 2 to

6. Dates of hearing: 2nd May and 24th October, 1985. This is an appeal filed under section 47 of the Guardian and Wards Act, 1890 by the appellant Muhammad Paryal son of Allah Dad Khan. This matter relates to the guardianship of the person and property of the four minor children of deceased Mouladad, brother of appellant Muhammad Paryal. The four children of deceased Mouladad are Mst. Shamshad, Mst. Zubeda, Riaz Ahmad and Mst. Naheed Begum, respondents Nos.3, 4, 5 and 6 in the present appeal. Respondent No.2 is Mst. Khatoon, mother of the children and widow of deceased Mouladad. Umed Ali, father of Mst. Khatoon and maternal‑grandfather of respondents Nos. 3, 4, 5 and

6. After the death of Mouladad, respondent No.2, Mst. Khatoon, filed an application in the District Court, Larkana, being Guardianship Application No. 54 of 1972 for being appointed as guardian of the person and property of the aforesaid four minors namely respondents Nos. 3, 4, 5 and

6. The appellant Muhammad Paryal, real paternal‑uncle of the minors, contested the application but finally there was a compromise and by order, dated 18‑9‑1985 of the learned District Judge, Larkana, appellant Muhammad Paryal was appointed as guardian of the person and property of the minors. Two guardianship applications Nos. 55 and 56 of 1978 were filed in the District Court, Larkana, by the respondents praying for removal of the appellant from the guardianship of the minors and for appointment of respondent No.l or respondent No.2 as guardian of the minors. These applications were contested by the appellant. Evidence was recorded in the case and by judgment, dated 29‑3‑1979, the learned First Additional District Judge, Larkana, revoked the appointment of the appellant as guardian and appointed respondent No.2, Mst. Khatoon, mother of the children as guardian of the person and property of the minors. Being aggrieved by the judgment, dated 29‑3‑1979 of the learned First Additional District Judge, Larkana, the present miscellaneous appeal has been filed by the appellant Muhammad Paryal. I have heard Mr. Abdul Fatah Memon, learned counsel for appellant and Mr. Abdul Waheed Siddiqui, learned counsel for respondents Nos.2 to

6. No one has appeared on behalf of respondent No.l, Umed Ali.

2. The two learned counsel took me through the record, which include the evidence recorded before the District Court and the judgment, dated 29‑3‑1979 of the learned First Additional District Judge, Larkana. The contention of Mr. Abdul Fatah Memon, learned counsel for appellant, was that the evidence recorded before the District Court did not show that the appellant had acted against the interest of the minors and that the learned First Additional District Judge, Larkana, himself had observed in the impugned judgment that the appellant was looking after the minors carefully and honestly and that he was not acting against the interest of the minors. Learned counsel for the appellant, in this regard, made specific reference to the following paragraph of the judgment, dated 29‑3‑1979 of the learned First Additional District Judge, Larkana:‑ "The evidence of the opponent Muhammad Paryal and the witnesses disclose the opponent Muhammad Paryal is taking care of the minors carefully and honestly. All the witnesses are unanimous on this point that Muhammad Paryal is not acting against the interests of the minors but the witness Fateh All Exh. 28 had admitted that the Deputy Collector Muhammad Azeem had asked him to pass on money and paddy to Mst. Khatoon and he had done so and passed on Rs.1,680 and 20 maunds of paddy to Mst. Khatoon which fact shows that the matter was reported to the Deputy Collector by the applicant and Khatoon and Umed Ali that Muhammad Paryal was not providing them the produce of the land of the minors. This assertion goes against the opponent that he had been creating trouble with the applicant Khatoon and minors. This witness Fateh Ali has further admitted in the cross‑examination that Muhammad Paryal dug drain in the land of the minors at the length of 400 or 500 feet about 8 months ago which also shows the land of the minors was put to wastage and opponent Muhammad Paryal had acted adversely to the interest of the minors. There is another reason the opponent has not maintained the accounts of the income of the property of minors which he was bound to do."

3. Mr. Abdul Waheed Siddiqui learned counsel for the respondents Nos.2 to 6, on the other hand, has opposed this appeal. During the proceedings of this appeal, an order had been passed that the respondents should appear before this Court. Respondent No .l, on account of the old age and sickness, could not come and he had sent a medical certificate. Respondents Nos. 2, 3, 4, 5 and 6 appeared before me on 12‑5‑1985. Two of the minors namely Mst. Shamshad and Mst. Zubeda (respondents Nos.3 and 4) are now over 18 years of age. Respondent No.5 has crossed 16 years and respondent No. 6 is about 13 years old. On a question from me, respondents Nos.3, 4, 5 and 6 stated that they had no confidence in the appellant. I had also directed the appellant to appear before me. Mr. Abdul Fatah Memon, learned counsel for the appellant, addressed several letters to the appellant but he has not appeared and to that effect statements were made by Mr. Abdul Fatah Memon, which are reflected in the orders, dated 22‑9‑1985 and 20‑10‑1985 in this appeal. However, on 21‑10‑1985, a statement was filed by the learned counsel for the appellant that a telegram had been received from the appellant that the appellant was sick.

4. Mr. Abdul Fatah Memon, learned counsel for appellant is correct to some extent that there are observations in the impugned judgment dated 29‑3‑1979 that apparently the evidence of the witnesses indicates that the appellant has not acted against the interest of the minors but in this very same paragraph, in which the aforesaid observation has been made, the learned First Additional District Judge, Larkana, refers to the evidence of a witness of the appellant and then found that the land of the minors had been put to wastage. Then there is another reason given for revoking the appointment of the appellant as guardian and that is that the appellant has not maintained the accounts of the income of the property of the minors, which he was bound to do. It is an admitted position that the accounts have not been rendered by the appellant in respect of the income from the properties of the minors and the expenses incurred by the appellant upon the minors and in respect of the properties of the minors. In this connection, reference may be made here to the observations in the impugned judgment, dated 29‑3‑1979 about the statements made by the appellant in his cross‑examination:‑ "There is some amount still pending with him (the appellant) in the account of minors. He shall tell the exact amount pending with him in the account of the minors. The register is maintained by him. He cannot say whether the amount will exceed rupees lac or so. He will not say whether the amount will be Rs.1,000 or so. He cannot give the numbers of the S. Nos. which Khatoon wanted. He had paid Rs.15,000 or 20,000 in cash towards the share of the minors after appointment as guardian. He has been paying to Khatoon and Shamshad Begum. He cannot give the exact amount paid by him to Khatoon and Shamshad. He cannot give approximate amount paid by him to each of the ladies." Admittedly no register or accounts were produced by the appellant in the evidence before the District Court. He had admitted that some amount was still pending with him in the account of the minors but he could not give even the approximate figure of the amount which was payable by him to the minors. He could not even say that the amount could exceed rupees one lac or whether only Rs.1,000 was due to the minors. It, therefore, follows that no accounts were maintained by the appellant. The impression that is gathered from the evidence of the appellant was that he considered himself under no obligation to maintain regular and proper accounts in respect of the income of the properties of the minors. It may be observed here that the responsibilities of a guardian of the person and property of the minors are onerous in character. Sharia as well as Pakistan law place great responsibilities on the guardian of minors. If a person takes over the responsibilities of acting as a guardian of the person and property of the minors or is appointed as such by a Court, he is required to act with great care and caution. He is required to maintain proper and regular accounts so that he is in a position to render exact accounts whenever he is called upon to do so. Apparently no accounts or registers were maintained showing the income from the properties of minors and expenditure in respect of the properties and upon the minors or else such accounts /registers would have been produced. The main purpose of requiring the appellant to appear before this Court was to make a further enquiry as to whether he had in fact maintained any accounts or not. As already been observed, the appellant has avoided to appear before this Court. From this conduct of the appellant also the inference that is gathered is that the appellant had not maintained any accounts. In the circumstances, in my view, no illegality was committed .by the learned First Additional District Judge, Larkana, in revoking the appointment of the appellant as guardian. I also do not find any reasons to disturb the order appointing respondent No.2, Mst. Khatoon, mother of the minors as the guardian of the person and property of the minors Miscellaneous Appeal No. 30 of 1979 is accordingly dismissed. The appellant will pay the costs of this appeal to respondents Nos.2 to

6. It is further directed that from the date of his appointment as guardian of the person and property of the minors till he hands over the charge of the properties to respondent No.2, the appellant will render accounts to the Guardian Court. A . A Appeal dismissed