Delhi District Court
Smt. Santosh vs The State on 3 July, 2023
IN THE COURT OF SH. DEEPAK DABAS, ADJ-1 (NORTH),
ROHINI COURTS, DELHI.
GP-20/2021
Smt. Santosh,
W/o Sh. Jasbir,
R/o H. No. 222-Pana Dulan,
Near Panchayat Ghar, Bawana,
Delhi-110039.
..... Petitioner
Versus
1. The State
(Govt. of NCT of Delhi).
2. Sh. Pradeep Kumar,
S/o Sh. Raghubir Singh.
3. Sh. Inderjeet Singh,
S/o Sh. Raghubir Singh,
Both R/o H. No. 333,
Jatrana Pana, Village Ghevra,
Delhi-110081.
..... Respondents
Date of institution : 16.12.2021
Date of Arguments : 30.05.2023
Date of Decision : 03.07.2023
PETITION UNDER THE GUARDIANS & WARDS ACT, 1890, FOR
APPOINTMENT OF PETITIONER AS LEGAL GUARDIAN OF
MINOR MANEET GILL & CARETAKER OF HIS PROPERTIES/
ASSETS
_____________________________________________________________________________________
GP-20/21 Santosh Vs. State & Ors. Page 1 of 9
JUDGMENT
03.07.2023
1. Petitioner has filed the present petition for her appointment as legal guardian of minor Maneet Gill, aged about 8½ years (born on 10.01.2015) as well as caretaker of his properties/assets for his welfare, better future and bringing up till the date of his attaining majority.
2. The material facts of the present case as stated in petition are that the petitioner is the real paternal aunt (Bua) of minor Maneet Gill and he is under the care and custody of petitioner. Unfortunately, Smt. Seema i.e. the mother of minor had expired on 08.10.2018 and Sh. Rakesh i.e. father of minor had expired on 01.05.2019, leaving behind the minor as their sole legal heir. The minor has inherited and is entitled in his own right/share in the following properties as the respondents no-2 and 3 and Late Sh. Rakesh (father of minor) were the co-owners/co- sharers :-
A. Property bearing Khata No. 438, having Khasra No. 647 (1-00), area measuring 1000 sq. yds. situated at Village Ghevra, wherein the minor is having the share of 211 sq. yds.;
B. Property bearing Khasra No. 439, having Khasra No. 44/18, area measuring 5800 sq. yds. situated at village Ghevra, wherein the minor child is having the share of 1208 sq. yds.;
C. Property bearing Khata No. 441, having Khasra No. 242, area measuring 1900 sq. yds., situated at village Ghevra, wherein, the minor is having the share of 55 sq. yds.; and _____________________________________________________________________________________ GP-20/21 Santosh Vs. State & Ors. Page 2 of 9 D. LIC Insurance Policy bearing no. 117835528.
3. It is stated that the petitioner is the real paternal aunt (Bua) of the minor and is taking care and looking after the minor since the death of his parents.
4. Notice of this petition was served upon the State/respondent no-1. Notice was also issued to general public vide publication in the newspaper, namely, 'Veer Arjun' dated 25.04.2022. Despite publication in the newspaper, no one has come forward to make any objection in respect of the prayer made by the petitioner in the present petition.
5. Notice was also issued to the SDM Kanjhawala, Delhi, for filing report qua present petition. Report dated 14.03.2022 was received from SDM, Kanjhawala, Delhi. As per said report, Rakesh and Seema, parents of minor had already expired and since 2018 minor has been living under the care and custody of petitioner/Santosh at her house i.e. H. No. 222, Pana Dulan, Near Panchayat Ghar, Bawana, Delhi-110039.
6. On 15.03.2022, respondent no-2/Pradeep Kumar and respondent no-3/Inderjeet Singh appeared before the court and filed their separate affidavits/NOC i.e. Ex C-1 and Ex D-1, respectively. They had also made separate statements that they have no objection, if the petition is allowed in favour of the petitioner and she is appointed as legal guardian of the minor child Master Maneet Gill.
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7. In order to prove her case, the petitioner herself entered in witness box as PW-1 and tendered her evidence by way of affidavit i.e. Ex.PW1/A, bearing her signatures at points A and B and she has also relied upon the following documents :-
i. Copy of Aadhar Card of petitioner i.e. Ex PW-1/1; ii. Copy of Aadhar Card of minor Maneet Gill i.e. Ex PW-1/2; iii. Copy of birth certificate of minor Maneet Gill i.e. Ex PW-1/3; iv. Copy of death certificate of Late Sh. Rakesh and Late Smt. Seema i.e. Ex PW-1/4 and Ex PW-1/5, respectively; v. Copy of Khatoni in respect of land bearing Khasra No. 647 (1-100), 44/18 (5-16) & 353 (1-18) situated at Village Ghevra, Delhi i.e. Mark-A; and vi. Copy of LIC receipt i.e. Mark-B.
8. I have gone through the record and have heard the arguments advanced by Ld. Counsel for petitioner. Section 7 of The Guardians & Wards Act, 1890 postulates as under :-
7. Power of the Court to make order as to guardianship.--
(1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made--
(a) appointing a guardian of his person or property or both, or
(b) declaring a person to be such a guardian the Court may make an order accordingly.
(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.
(3) Where a guardian has been appointed by will or other instru-
_____________________________________________________________________________________ GP-20/21 Santosh Vs. State & Ors. Page 4 of 9 ment or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.
9. Section 8 of The Guardians & Wards Act, 1890 postulates as under :-
8. Persons entitled to apply for order.--An order shall not be made under the last foregoing section except on the application of--
(a) the person desirous of being, or claiming to be, the guardian of the minor; or
(b) any relative or friend of the minor; or
(c) the Collector of the district or other local area within which the minor ordinarily resides or in which he has prop- erty; or
(d) the Collector having authority with respect to the class to which the minor belongs.
10. Section 17 of The Guardians & Wards Act, 1890 postulates as under :-
17. Matters to be considered by the Court in appointing guardian.--(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this sec-
tion, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if _____________________________________________________________________________________ GP-20/21 Santosh Vs. State & Ors. Page 5 of 9 any, of a deceased parent, and any existing or previous rela- tions of the proposed guardian with the minor or his prop- erty.
(3) If minor is old enough to form an intelligent preference, the Court may consider that preference. 3[***] (5) The Court shall not appoint or declare any person to be a guardian against his will.
11. Section 20 of The Guardians & Wards Act, 1890 postulates as under :-
20. Fiduciary relation of guardian to ward.--(1) A guardian stands in a fiduciary relation to his ward, and, save as provided by the will or other instrument, if any, by which he was appointed, or by his Act, he must not make any profit out of his office.
(2) The fiduciary relation of a guardian to his ward extends to and affects purchases by the guardian of the property of the ward, and by the ward of the property of the guardian, immediately or soon after the ward has ceased to be a mi- nor and generally all transactions between them while the influence of the guardian still lasts or is recent.
12. Section 24 of The Guardians & Wards Act, 1890 postulates as under :-
24. Duties of guardian of the person.--A guardian of the person of a ward is charged with the custody of the ward and must look to his support, health and education, and such other matters as the law to which the ward is subject requires.
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13. Section 27 of The Guardians & Wards Act, 1890 postulates as under :-
27. Duties of guardian of property.--A guardian of the prop-
erty of a ward is bound to deal therewith as carefully as a man of ordinary prudence would deal with it, if it were his own and subject to the provisions of this Chapter, he may do all acts which are reasonable and proper for the realisation, protection or benefit of the property.
14. The petition discloses that the minor suffered a tragedy due to death of both the parents at a very young age. The appointment of petitioner as guardian of minor seems a necessity and for an evident advantage to the minor. The minor is in his studying age and a guardian will be required at all the crucial stages. The minor child is under the care and custody of the petitioner, who is his paternal aunt (Bua) and she is taking care/looking after the minor child since the death of his parents. The petitioner is willing to be legal guardian of the minor for his welfare and future. The petitioner wants appointment for the purpose of representing the minor at various stages of his studies and Govt. dealings including applying for passport, PAN Card etc. She does not want any remuneration. The petitioner is the real paternal aunt (Bua) of the minor and there is no material to gather an inference that her interest could be in conflict with or adverse to that of the minor.
15. It is pertinent to mention that, undersigned had an informal conversation with the minor child, who was present in the court on _____________________________________________________________________________________ GP-20/21 Santosh Vs. State & Ors. Page 7 of 9 30.05.2023. During said conversation also the minor stated that he is living under the care and custody of the petitioner and he would love to continue the same.
16. Except the petitioner, the other relatives of minor i.e. respondent no. 2/Pradeep Kumar and respondent no-3/Inderjeet Singh, are real uncle of the minor. Respondent no-2/Pradeep Kumar and respondent no-3/Inderjeet Singh had appeared before the court on 15.03.2022 and filed their separate affidavits/NOC i.e. Ex C-1 and Ex D-1, respectively. They had also made separate statements that they do not have any objection, if the petition is allowed in favour of the petitioner and she is appointed as legal guardian of the minor child Master Maneet Gill.
17. Relief:- In view of the above said facts and circumstances, the petition is allowed. The petitioner is appointed as guardian of minor Maneet Gill as well as his properties till he attains majority. The order is subject to the following conditions:-
i. The petitioner will be entitled to act as the guardian of the minor as well as his property before any bank, institution or other authority etc. wherever there is requirement of the guardian.
ii. The petitioner is entitled to deal with the share of minor in aforementioned properties and LIC Policy as guardian of the minor. However petitioner shall have no right to sell, transfer, mortgage etc. the said properties without prior permission from this court.
_____________________________________________________________________________________ GP-20/21 Santosh Vs. State & Ors. Page 8 of 9 iii. The petitioner can acquire any property for the welfare of the minor.
iv. On attaining majority, minor shall be free and competent to utilize share in aforementioned properties and amount of said policy.
v. This permission shall not tantamount to vesting or conferring any right, title or interest in the share in aforementioned properties and LIC Policy.
vi. The petitioner shall not be allowed to any allowance.
vii. Special attention of the petitioner has been drawn to the provisions of section 26, 27, 28, 29, 32, 33, 35, 36, 39, 44 & 45 of the Guardians & Wards Act 1980.
viii. On fulfillment of necessary conditions, the guardianship certificate as per Form F given in chapter 2 part D Volume 2 of the Delhi High Court Rules be issued.
18. Accordingly, the present petition stands allowed and disposed of. File be consigned to record Room after necessary compliance. Announced in the open court DEEPAK Digitally signed by DEEPAK DABAS on 3rd day of July 2023 DABAS Date: 2023.07.04 15:02:33 +0530 (Deepak Dabas) Addl. District Judge-01/North Rohini Courts/Delhi _____________________________________________________________________________________ GP-20/21 Santosh Vs. State & Ors. Page 9 of 9