Vikas S/O Ratnappa Murale vs Devaki W/O Mahadev Melagade
2022 Latest Caselaw 1198 Kant

        IN THE HIGH COURT OF KARNATAKA,
                 DHARWAD BENCH

      DATED THIS THE 27TH DAY OF JANUARY 2022

                      PRESENT

       THE HON'BLE MR. JUSTICE S.G. PANDIT

                        AND

THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

           MFA No.102374 OF 2016 (G & W)

BETWEEN:

VIKAS S/O RATNAPPA MURALE
AGE:30 YEARS, OCC:AGRICULTURE,
R/O KABBUR, TQ:CHIKKODI,
DIST:BELAGAVI.
                                         ...APPELLANT
(BY SRI. S.S. BAWAKHAN, ADVOCATE)

AND

DEWAKI W/O MAHADEV MELAGADE
AGE:66 YEARS, OCC:NIL,
R/O NANDESHWAR, TQ:ATHANI,
DIST:BELAGAVI.
                                       ...RESPONDENT
(BY SRI.SANJAY S KATAGERI, ADVOCATE)

     THIS APPEAL IS FILED UNDER SECTION 47 OF THE
GUARDIAN & WARDS ACT, PRAYING TO CALL FOR THE
RECORDS IN G & WC NO.48/2015 ON THE FILE OF THE PRL.
SENIOR CIVIL JUDGE, ATHANI AND CONSEQUENTLY SET-
ASIDE THE IMPUGNED ORDER DATED 29.2.2016 PASSED BY
THE PRL. SENIOR CIVIL JUDGE, ATHANI IN G & WC
NO.48/2015 TO SERVE THE ENDS OF JUSTICE.
                               2



     THIS APPEAL COMING ON FOR ORDERS, THIS DAY,
ANANT    RAMANATH    HEGDE   J., DELIVERED   THE
FOLLOWING:

                         JUDGMENT

This appeal is listed for orders on IA No.3/2016 filed

seeking permission to prosecute the appeal, IA No.1/2016

seeking condonation of delay of 56 days in filing the appeal

and IA No.2/2016 seeking stay of the operation and

execution of the judgment and decree dated 29.2.2016

passed in G & WC No.48/2015 on the file of the learned

Principal Senior Civil Judge, Athani.

2. With the consent of learned counsel for the

appellant as well as learned counsel for the respondent,

this matter is taken up for final disposal.

3. IA No.3/2016 seeking permission to prosecute

the appeal is filed on the premise that in G & WC

No.48/2015, which was filed by natural grand mother of

minor Kumari Maheshwari D/o Mallappa Melagade, present

appellant who is seeking permission to prosecute the

appeal was not a party. The petition G & WC No.48/2015

came to be allowed by the trial Court by order dated

29.2.2016, wherein the trail Court has passed following

order:

"The petition filed by the petitioners is allowed as prayed. Smt. Devaki W/o Mahadev Melagade is hereby appointed as guardian of her minor grand daughter i.e. petitioner Kumari Maheshwari D/o Mallappa Melagade as more fully described in the cause title of the petition.

The guardian Smt. Devaki W/o Mahadev Melagade is hereby permitted to secure the service benefits and death benefits and other benefits of deceased Smt. Kavita W/o Mallappa Melagade (who is none other than the mother of minor petitioner) from concerned Department as prayed and to utilize the same for welfare and benefit of minor.

The guardian Smt. Devaki W/o Mahadev Melagade is hereby directed to keep 50% of the amount received in the form of benefits in the name of minor petitioner Kumari Maheshwari in any nationalized bank till she attains the age of majority."

4. It is submitted by the learned counsel for the

appellant that the appellant being maternal uncle of the

minor child Kumari Maheshwari D/o Mallappa Melagade

had also filed a petition G & WC No.69/2015 on the file of

the learned Senior Civil Judge, Chikkodi seeking to appoint

him as guardian of said minor Kumari Maheshwari. The

said petition came to be dismissed for default.

Subsequently, no application is filed to restore the said

petition.

5. However, it is submitted by the learned

counsel for the appellant that the appellant, who is seeking

permission to prosecute the appeal has challenged the

impugned order on the ground that in the best interest of

the minor child, he is the best suited person to take care of

minor child Kumari Maheshwari D/o Mallappa Melagade.

Since issue relating to the minor child is involved in this

case, considering the fact of interest of minor child is of

paramount consideration, we deem it appropriate to allow

the application seeking permission to prosecute the

appeal. Accordingly, IA No.3/2016 is allowed. Appellant is

permitted to prosecute the appeal.

6. We also deem it appropriate that for the

reasons stated in the affidavit accompanying the

application seeking condonation of delay of 56 days in

filing the appeal, IA No.1/2016 is to be allowed and

accordingly allowed. Delay of 56 days in filing the appeal

is condoned.

7. We have heard the learned counsel for the

appellant and also learned counsel for the respondent on

merits.

8. Having gone through the impugned order, it is

apparent that the impugned order is passed on the basis of

evidence led by the grand mother of minor child Kumari

Maheshwari D/o Mallappa Melagade. None is arrayed as

respondent in the matter. There was no contest at all. Now

the maternal uncle of the minor is before the Court and

making a claim that he is best suited to be the minor

guardian of Kum.Maheshwari. In a matter relating to

guardianship of a minor, the Court must endeavor to see

that minor's interest is protected at any cost. Since the

impugned order is an order passed without contest and

now there is a rival claim for guardianship, without going

into merits of the case, we deem it appropriate to set aside

the impugned order and remand the matter to the learned

Principal Senior Civil Judge, Athani. On remand, the

Principal Senior Civil Judge, Athani shall implead the

present appellant as respondent in G&WC No.48/2015. The

parties are permitted to lead evidence in support of their

respective claim for guardianship of Kumari Maheshwari

D/o Mallappa Melagade. It is made clear that no opinion is

expressed on the merits of the case relating to

guardianship of minor child. The learned Senior Civil

Judge, Athani shall consider the rival claim of the parties

and thereafter pass appropriate orders taking into

consideration the welfare of the minor child and appoint a

suitable person as minor guardian of Kumari Maheshwari

D/o Mallappa Melagade.

9. With the above observations, we pass the

following:

ORDER

Appeal is allowed in part.

The judgment and decree dated 29.2.2016 passed in

G & WC No.48/2015 by the learned Principal Senior Civil

Judge, Athani is set-aside.

The parties to this appeal shall appear before

Principal Senior Civil Judge, Athani on 28.02.2022 at 11.00

a.m.

Registry to send back trial court records forthwith.

Pending applications, if any, do not survive for

consideration and accordingly, they are disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

JTR