P L D 1952 Baghdad﷓ul﷓Jadid 53 (PLP)

ABDUL AZIZ, C. J.‑Bahar Shah respondent cousin of the deceased father of the minors made an application 'under section 10 of the Guardians and Wards Act to be appointed as guardian of the person and property of Muhammad Shah minor aged 12 years, Bashir Ahmad aged 8 years, Muhammad Shah aged 5 years sons and Mst. Jhanwar Bibi aged 3 years daughter of Amir Shah deceased. In addition to Mst. Janat the widow of Amir Shah and now the wife of Lal Shah, 9 other persons were shown in the petition as the relations of the deceased father of the children and interested in the appointment of a guardian of their person and property. After the citation was issued to the respondents and before any material proceedings were taken up in the petition, a deed of compromise was presented on 14th of May 1951 by the petitioner and the respondents and an order of appointment in pursuance to that deed of compromise, dated 24th of May 1951 was passed by the learned Senior Sub‑Judge appointing the respondent as the guardian of the person and the property of the aforesaid minors. That order is now attacked in the High Court by a revision petition, dated 8th of December 1951. Mr. Sleem who represented the respondent in the company of Sh. Nisar Ahmad Advocate raised two preliminary points, firstly, that no revision could be entertained under law and secondly that the petition was barred by time. As regards the first contention the learned counsel sought support from section 47 (A) of the Guardians and Wards Act and section 115 of the C. P. C. section 47 (A) reads :‑ "An appeal shall lie to the High Court from an order made by a Court: ‑ (a) Under section 7, appointing or declaring, or refusing to appoint or declare, a guardian. Section 115 of the C. P. C. while enables the High Court to call for the records of any case which has been decided by any Court subordinate to such Court, also pres cribes limitation on such powers as lays down that such revisional powers could be exercised only where no appeal lies to the High Court. Mr. Mustafa Khan on behalf of the opposite side conten ded that the order of the learned Senior Sub‑Judge which is contested in this Court was based on a compromise between the parties and as no‑ appeal could lie under section 96 C. P. C. against a decree passed on a compromise consequ ently his client was incompetent to prefer an appeal against the order in dispute and was competent to come before this Court under section 115 of the C. P. C. The argument on the face of it is fallacious as the learned counsel himself had to admit that the prohibition under the C. P. C. from which it seeks support refers only to the decrees passed under the C. P. C. and not to orders passed therein. He, however, laid down a very surprising proposition that section 96 of the C. P. C. was applicable to the orders passed on a compro mise between the parties under the Special Laws. He was unable to cite any authority in support of his contention. Moreover it must be kept in view that there is a specific provision in a special Law which makes it incumbent on the party aggrieved of an order of appointment of a guardian to go to the High Court on the appellate side. In the first instance the C. P. C. does not come in for the help of Mr. Mustafa Khan and secondly the clear provision of the special Act could in no manner be overriden by the General Law laid down in the C. P. C. which governs only the decrees passed there under. I have, therefore, to repel this contention of the learned counsel. But he further pursued his argument and contended that as the order of the Senior Sub‑Judge was irregular and illegal under section 13 of the Guardians and Wards Act consequently under special circumstances the High Court was competent to entertain this petition for revision and in the exercise of its inherent powers could set aside the order not in consonance with section 13 of the Guardians and Wards Act. Special circumstances in such like cases is a question of fact and it is, therefore, for me to see whether there are such special circumstances which would call upon me to exercise my inherent powers under section 115 of the C. P. C. to entertain this application and to interfere with the order of the appointment of Bahar Shah as the guardian of the person and property of the minors. In order to deter mine this question I have to revert for a while to the facts in the present case. There is no denial of the fact that before anything substantial was done in this case the parties entered into a compromise and the Court without exercising its own discretion after calling upon the parties to produce evidence ordered the appointment of the guardian according to the terms of the compromise. It is no doubt true that the res ponsibility has been laid by the law on the Court after making necessary enquiry .to decide the suitability of a person to be appointed as a guardian of the person and the property of a minor. In other words it is for the Court and for the Court alone to see whether the appointment is in the interest of the minor. The learned Senior Sub‑Judge as the record shows did not pay any attention to this imperative provision of law nor did he apply his mind at all to determine the fitness of Bahar Shah as guardian of the person and property of the minors. If it is not so done then the order undoubtedly is con trary to the express provision of the law. A similar question had arisen in 1940 Lahore 9 and it was disposed of in the following terms:‑ The main ground of attack is that the real point at issue in the case was not brought out or considered by the Court below and that the decision by way of compromise was illegal and ultra vices. It seems to me that there is consider able force in this objection. What the Court had to consider was the welfare of the minors on evidence produced before it and not to pass judgment in accordance with the terms of a compromise. It was the duty of the Court to consider whether or not the compromise was in the interests of the minors and there is nothing in the judgment of the Court below to indicate that this aspect, which is after all the overriding consideration in such cases, was considered by the Court at all. It is clear law that the minor is entitled to the judgment of the Court on this crucial matter. In making an order in the terms of a compromise the Court has virtually handed over its functions of judgment to the contesting parties. In 6 Rangoon 563 it has been held that the selection of a guardian by arbitrators is illegal and that it is far the Court, and not the arbitrators to be satisfied that it is so for the welfare of a minor that a guardian' should be appointed and if to be appointed who that person should be. The State is the guardian of all its minor subjects and the question of guardianship is not one of the private civil rights of any private person which he is by law allowed to submit to arbitration. See in this connection 30 All. 137 and 47 Mad.

459. If such a matter could not be Settled‑by arbitrators appointed by 'the contesting applicants for guardianship, it could not more be settled by an agreement by such persons. This appears to me to be a fatal objection to the procedure adopted by the learned Guardian Judge and therefore, to the order under appeal. In 1923 Nag 36 it was held that "where the Court had ignored the procedure laid down by the Guardian and Wards Act in sections 11 and 13 and failed to consider whether the guardian was by character and capacity a fit person and whether his appointment was for the welfare of the minor ; his procedure was thus materially irregular". In 1927 Cal. 578 it was held that "where a decree was passed without jurisdiction and though an appeal was provided no appeal was filed, a revision may be allowed in exceptional circumstances". The learned counsel also referred to 1929 Lah. 175 where it was laid down by Jai Lal J. that "High Court can interfere in revision in special cases even when another remedy is open to the party". Mr. Saleem on the other hand referred to 1935 Pat. 121 in which second appeal was competent but was not preferred and a revision was instituted and it was rejected on the ground that the second appeal lay and the aggrieved party had not taken advantage of it. He referred also to 1944 Cal. 309 and 1934 Rang. 188 in which the High Court refused to interfere on the revisional side as the aggrieved party had the right of appeal and failed to avail of it. I have carefully gone into the authorities cited at the Bar and I am of opinion that where the Courts have come to the conclusion that there were special circumstances they have allowed the revision even if no appeal which was competent was preferred against the order complained of. Now the special circumstances in the present case are that the Court whose duty it was to decide whether the appointment of the guardian was in the interest of the minor or not had failed to perform that duty consequently the revision despite the failure of the petitioner to prefer an appeal could be entertained. The direct authority on the point to which reference has already been made by me is 1940 Lah.

9. I, therefore, hold that in view of the special circumstances in this case the High Court is competent to entertain this petition. The next point is what should be the result of it. The petition is on behalf of Mst. Janat but it is settled law that under Muhammadan Law a mother who remarries after the death of her first husband is incompetent to be appointed as guardian of the minor children by her first husband, 1928 Oudh 220 may be referred to in this connection where it was held that "under Muhammadan Law the mother is disqualified from the guardianship even of her minor daughter if she is married to a man who is not related to the minor within the prohibited degrees." It is further observed that "where the law definitely lays down that an appointment of a certain guardian cannot be made, it is not proper for the Court to disregard the law even in the interests of the minor". This well‑established principle of law was not contested by the learned counsel for the petitioner. The result, therefore. is that the petition of Mst. Janat must fail and should be dismissed. It was, however, contended tin the end by the learned counsel that as the learned Senior Sub‑Judge has ignored the very important provision of law and the interest of seven minors is at stake, consequently the High Court should suo motu take up this question and interfere with the order of the Court. While reading section 115 of the Civil P C I came across a ruling 1943 Nag. 333 where it was laid down that "any person can bring an irregularity to the notice of the High Court and where a general and very important principle is involved and the lower Court's order is without jurisdiction, the High Court would be entitled to act suo Motu." In this case I have already pointed out that the learned Senior Sub‑Judge had failed to exercise his imperative duty under the law of Guardians and Wards Act to determine whether the appointment of the respondent was to the welfare of the minors and had recorded his decision only on the com promise arrived at between the parties and which decision was irregular and illegal. The interest of a minor and his welfare is a very important factor to be judiciously decided by the Courts exercising their powers at the time of the selection of a guardian. If such duty is not performed in accordance with the imperative provision of law, it amounts to a grave injustice to a minor who is to remain for several years under the custody of a person who may not prove to be suitable at all. It was pointed out by the learned counsel for the respondent that if the guardian prove to be an unfit person he could be removed at the instance of any person and consequently his appointment should not be disturbed at the present stage. I am unable to agree with this contention of the learned counsel. It is not the duty of the Court to leave the minor at the caprices of any person and to see whether a minor who has been placed from the beginning in the hands of an unfit person can released later on at the anticipated complaint of another person. The law does not enjoin this. It lays down a heavy duty on the Courts to make proper selection of a guardian of the person as well as of the property of a minor. At any rate the procedure laid down by the law must be strictly, carefully, cautiously and judiciously observed. In this the case record reveals that the learned Senior Sub‑Judge had paid no attention to the relevant law on this point. I am, therefore, of opinion that it is a fit case in which the Court should suo motu exercise its inherent powers under section 115 of the Civil P C in the interest of the minors. In face of these circumstances the question of limitation becomes only an academic one because the High Court is competent to exercise the inherent powers in the interest of justice whenever its attention is drawn to any injustice having been committed by the Courts subordinate to the High Court. With these observations I would dismiss the petition of Mst. Janat and under my inherent powers under section 115 of the Civil P C would set aside the order of Senior Sub‑Judge appointing Bahar Shah respondent as the guardian of the minors, and directing the Court that a fresh order for the appointment of the guardian be made after fully complying with the provisions of law. I pass no order as to costs. The respondent shall appear in the Court of District Judge, Rahimyar Khan on 10th April 1952 to which Court the file is transferred. Ali Shah Mukhtar of Mst. Janat and Bahar Shah respon dent present. Announced. A. H. Order accordingly.