Allahabad High Court
Custody of minor sons and management of property in case of an Unregistered will.
1. Jitendra Pal Singh was father of Madhupendra Pal Singh and Ankit Kumar. He had earlier married with Smt. Chokhi from whom Madhupendra Pal Singh was born. After the death of her first wife Smt. Chokhi, Ankit Kumar was born out of the wedlock of Smt.Vinod Kumari with whom Jitendra Pal Singh performed second marriage.
2. It appears from the record that before his death Jitendra Pal Singh the father of the aforesaid two minor children being heart patient had executed an unregistered will on 13.5.1999 through public Notary with regard to his all moveable and immoveable properties in favour of both minor sons.
3. By the aforesaid unregistered will Jitendra Pal Singh had appointed his mother Smt. Draupati Devi, opposite party as guardian of his aforesaid two minor sons.
4. After the death of Jitendra Pal Singh an application under Section 8 of the Hindu Minority and Guardianship Act, 1956 was moved by Smt. Draupati his mother and the grandmother of the minor children that she may be appointed as guardian to look after the minors and also their property through will dated 13.5.1999 as the minors were under her care and custody and Smt.Vinod Kumari appellant is the step mother of Madhupendra Pal Singh aged about 12 years.
5. Smt. Vinod Kumari, appellant filed her objection to the application under Section 8 of the Act, interalia that Madhupendra Pal Singh was her step son and Ankit Kumar the other son (minor) has been born to her from out of wedlock with Jitendra Pal Singh.
6. It was stated that after the death of Jitendra Pal Singh both the minor sons were living under her guardianship and she had been looking after them as well as their property without any interference of the applicant or any other person, the grandmother Smt. Draupati Devi.
7. It was also stated that she is the natural guardian of her natural son Ankit Kumar and therefore, no other person can be appointed as guardian of two sons.
8. The execution of will dated 13.5.1999 was also denied by her stating it to be a forged document prepared by the grandmother after the death of her son Jitendra Pal Singh.
9. According to her, Jitendra Pal Singh had no right to appoint his mother as guardian of the two minor sons to look after them and their property in preference to her as she was natural guardian of her minor son Ankit Kumar.
10. The claim for guardianship of the minors as well as their property was contested by her on the ground that Smt. Draupati Devi the applicant had bad intention and she had been harassing her and her minor sons in collusion with the sister's sons who are also residing in the same village.
The contention of learned counsel for the appellant is that the impugned order dated 14.5.2010 is against the statutory provisions of Section 8 of the Act and the Court below has not considered the case of the appellant. It was stated that after the death of Jitendra Pal Singh both the minor sons were living under her guardianship and she had been looking after them as well as their property without any interference of the applicant or any other person, the grandmother Smt. Draupati Devi. She also contended that she is the natural guardian of her natural son Ankit Kumar and therefore, no other person can be appointed as guardian of two sons.
The respondents contented by stating the unregistered will of Jitendra Pal Singh where he had appointed his mother Smt. Draupati Devi, opposite party as guardian of his aforesaid two minor sons.
After considering the oral and documentary evidence the Court has allowed the application of the opposite party Smt. Draupati Devi by appointing her as guardian of two minor sons of late Jitendra Pal Singh.
The Court in the peculiar facts and circumstances saw the paramount welfare of both the minor children as they are born out of the wedlock of late Jitendra Pal Singh with two different ladies and the grandmother being the only common factor whose genes have been inherited by the aforesaid two minors. As far as the dispute to manage the property of late Jitendra Pal Singh is concerned, the Court persuaded the definition of guardian in Section 4(b) (ii) stating that any person can be appointed by the father who is natural by way of will. It may be registered or unregistered. (Ref. Last Para)