Bombay High Court
In Re: Mrs. Lilly Mascarnehas vs Unknown on 21 April, 2004
Equivalent citations: AIR 2004 Bom 313
Author: A V Mohta
Bench: A V Mohta
ORDER
Anoop V. Mohta, J.
1. Heard Shri R.K. Sahu for the petitioner.
2. The present Guardianship Petition has been filed under Section 7 read with Section 10 of the Guardians and Wards Act, 1890 (for short Act), by the petitioner Mrs. Lilly Mascarnehas for the appointment of the guardian of the present person and the property of the minors, namely, Godfrey Alwyn (boy) (15 years) and Mascarnehas Anita Walter (girl) (14 years). The petitioner is the Paternal Aunt of the minor children.
3. The petitioner has filed a Joint affidavit of service to prove the necessary compliances as per law. None appeared in the petition to oppose.
4. The parents of the minors named, Smt. Celin Walter Mascarnehas (mother) expired, on 24th September, 1993 and Mr. Valerion Walter Mascarnehas (father) on 30th September, 2002. Both the Christians died intestate. The minors referred above are the survivors and are successors to the estate and credits of the deceased Valerian Walter Mascarnehas. There are no other issues and successors or survivors. After the death of their parents, admittedly, the minors have no guardian to look after them and to manage the estate and credits.
5. It is therefore, necessary that the appropriate guardian be appointed to take care of the minors and to manage the Estate and Credits of their parents in absence of natural guardian. It is also necessary for up bringing of minors and for their welfare that some one should be appointed as a guardian till both attain the majority. As averred, the petitioner is related to the minor children, being their parental Aunt and also that she is looking after the minor children and making all expenses of food, clothing, shelter and education out of natural love and affection and has no other personal interest. In view of this, the present petition has been filed and volunteered to be appointed to act as a guardian of the minors. She also undertakes, that the petitioner shall handover all the assets and credits, as may be directed by the Court. The petitioner also undertakes that, she would maintain true and fair account of all the monies received and paid for and on behalf of the minors and further, undertake to do all that is necessary and incidental for the benefit and welfare of the minor children. She further undertakes that she will not draw any salary or payment for the services rendered by the petitioner, as a guardian of the minors. She also submits that besides the petitioner, the minors have no other near relatives. No other relations have any claim for the children or any claim for guardianship, till this date. As pointed out earlier, no other guardian of the person or the property of the minors either testamentary or otherwise have been appointed by any person or by any Court.
6-7. Having regard to the scope and purpose of Sections 7 and 10 of the Act it will be prime and paramount consideration to appoint guardian as prayed. The Apex Court has held in AIR 1937 SC 3, Mrs. Elizabeth Dinshaw v. Arvind M. Dinshaw, that predominant factors to be consider is the welfare of the minor, while exercising Court's power to appoint a guardian. In this case all the related ingredients of Sections 2, 10, 11, 17 of the Act have been complied. In view of the above, it is necessary to pass order without further delay in the interest of justice.
8. It is also essential to consider, the appointment of the petitioner as the guardian, for the schedule of the pension of the deceased father of the children, who was the employee of the Central Bank of India, Borivali Branch, Bombay and was entitled to get an amount of Rs. 1350/- from the bank towards pension, every month. The minor children are entitled for this monthly pension of their deceased father. It is also agreed and directed that the amount has to be deposited with the Account Officer High Court Bombay by the Central Bank of India, Borivali Branch, regularly. So that the said amount, can be distributed to the petitioner for the benefit of the minors, in accordance with the law. The petition is allowed, as prayed in terms of prayer Clauses (a) and (c) with liberty, to any concerned person.
9. In view of this, petition is disposed of accordingly.
10. C.C. expedited.
Parties concerned and specially Central Bank of India, Borivali Branch to act on a simple copy of this order, duly authenticated by the Court Stenographer/Chamber Registrar of this Court.
