Preferential right

As a general principle the degree of preference was confined to relationship depending upon the order of preference due to closeness of blood relationship and other aspects which were essential in upbringing of the minors within four corners of law

Any deviation from the general principle, where the blood relationship had to be dislodged, there should be very strong and compelling reasons to have a contrary view which included upbringing, education, healthcare, congenial domestic atmosphere, physical and psychological advantages, sect, religion, character and capacity of the claimant to whom care of the minors was to be assigned

When ignoring/ bypassing the general principle there must be very strong and exceptional circumstances which must be brought forth with reference to the intent of the legislature regarding the sole purpose of "welfare of minor".

Holy Quran and Sunnah did not bar for mother or even the father to hold the custody nor was there any provision which would stipulate that the preferential right of custody lies with the father or the mother; or in their absence grand-parents/uncles/cousins would be eligible to claim custody

Mother had the preferential right of Hizanat till the minor attained the age of 7 years in the case of males and the age of puberty in case of female minors.

­-Application under S.12(2), C.P.C., of petitioner was dismissed also made a ground to dismiss the appeal of the petitioners

Minors' ages being 16 and 15 years were considerable point

Welfare of the minor coupled with his/her own wish, particularly when he/her can make a reasonable preference on account of his/her age, is the primary consideration for a court of law for the decision of such cases

Intelligence preference of the minor could be the way to reach at the consideration regarding the entitlement of the custody, but it was not the sin qua non for the court to make it the basis for its decision

Any force applied in the matter of custody against their wishes, when they had attained sufficient maturity in exercising their preference would not be consistent with their welfare and rather may have adverse effect

High Court set-aside the ex-parte order of Guardian Judge, subject to special cost of Rs.20,000/-; and remanded the case to the Guardian Judge

Constitutional petition was allowed accordingly.

Held, that court had to see the welfare of the minor, keeping in view whether the person to whom the custody was being given, could facilitate the minor with respect to the health, education and other social norms which were required to build up the person of the minor; what was the financial status of the claiming person as guardian; whether person was capable of having the guardianship as to make the minor a good citizen in a real sense; whether the guardian himself follows law; whether he/she had respect for the law; whether he/she understood regarding the good and bad things/norms of the society; whether he/she had the level of intellect to train the minor to be a good and useful citizen of the society

Character building was not an easy task

Person who was always thinking about his/her benefit, could not be a good leader to build the character of the others.

Appeal was dismissed in circumstances.

Object behind the preferential right of pre-emption was to check the descending of the strangers into one's neighborhood and to preserve the family heritage and honour.

Property in question was mortgaged property and was sold by Official Assignee under the direction of Executing Court to satisfy decree passed in favour of financial institutions

Plea raised by Customs Authorities was that in sale proceeds government dues had preferential right of clearance

Validity

Though amount was determined against judgment debtor company by way of Order in Original dated 15-2-2000 passed by Customs Authorities but even such determination had been done by the authorities after almost 8 years of issuance of show cause notice dated 14-9-1992; in between such period, Custom Authorities did not make any effort to approach High Court and not even after passing of Order-in-Original in the year, 2000

Customs Authorities approached High Court with application under S.73, C.P.C. only in 2005

Determination of any such amount by government department, which was not directly against or in respect of property being sold by court, the same could only be given a priority if such determination was made prior to mortgage or creation of charge in respect of such property of defaulter and not otherwise

Mortgage/charge was created in year, 1987, in favour of financial institutions, whereas even if Order-in-Original dated 15-2-2000, were to be taken as crucial date, the same had been passed much after the date of mortgage of the property

Division Bench of High Court declined to interfere in judgment passed by Single Judge of High Court declining clearance of government dues from sale proceeds

Intra Court Appeal was dismissed in circumstances.

Pre-emptor in the plaint had claimed to be Shafi-i-Khalit and Shafi-i-Jar but while recording his statement before Trial Court, he mentioned boundaries and was not found either Shafi-i-Jar or Shafi-i-Khalit

Pre-emptor, in circumstances, was not entitled and competent under Islamic law to file suit for pre-emption, therefore, post-sale requisites were immaterial

High Court declined to interfere in judgment and decree passed by Trial Court as the same did not suffer from any illegality, irregularity, impropriety or perversity

Appeal was dismissed in circumstances.