1. ' IFTIKHAR HUSSAIN BUTT, J.--- The above captioned appeal has been presented against the decision of learned Judge, Family Court, empowered as Guardian Judge, Muzaffarabad, dated 17- 12-2004, whereby an application filed by the petitioners for removal of the guardian-respondent was dismissed.
2. ' Necessary facts forming the background of instant appeal are that Ali Ummar, respondent herein, filed an application for the appointment of guardian of the minor appellants Nos.2 to 6 before Guardian Judge, Muzaffarabad on 19-4-2003 on the ground that mother of the minors is detained in a murder case registered against her for the murder of her husband; therefore, being uncle of the minors he is entitled to be appointed as guardian. During the course of proceedings, the respondents Muhammad Hussain, Mir Afzal, Ghulam Haider and Mst. Chan Bi conceded the aforesaid petition whereas appellant No,1 also submitted before the Court below that the respondent may be appointed guardian of the minors.
3. 'The learned Guardian Judge after recording the ex parte evidence, appointed the respondent, herein, guardian of person and property of the minor-appellants Nos.2 to 6 vide its decision dated 3-6-2003.
4. 'On 28-8-2003 the appellants filed an application for the removal of guardian on the ground that respondent has abused her trust and did not take proper care of the minors. She further alleged that the respondent has ill-treated the minors and has taken away Rs,19,200 the pay of deceased father of minors.
5. ' The respondent filed his objections and refuted the allegations levelled by the appellants: He further submitted that he is taking proper care of the minors and appellant No,1, who has murdered her husband, wanted to dispose of the property of the minors whereas he has transferred the land of his deceased brother in the name of the minors-appellants through a gift deed.
6. 'The learned Guardian Judge after recording the evidenceC I dismissed the application for removal of the guardian vide its decision, dated 17-12-2004. Hence, this appeal.
7. ' Syed Riaz Hussain Naqvi, Advocate, the learned counsel for the appellants, argued with vehemence that the proceedings for appointment of guardian are fake and fictitious; therefore, the order, dated 3-6-2003 is null and void but the learned Guardian Judge failed to consider the aforesaid aspect of the case and dismissed the application for removal of the guardian in a hasty manner which is not sustainable. The learned counsel further contended that the respondent guardian is misusing the property of the minors and not performing his duty in a proper and befitting manner; therefore, appellant No,1, mother of the guardian, is looking after the minors. The learned counsel finally submitted that appellant No,1 being mother of the minors is natural guardian who may be appointed as guardian of the minors and respondent be removed. In support of the arguments, the learned counsel referred to me the following authorities:--
(1) 1998 SCR 140, (2) 2003 YLR 3245, (3) 2005 YLR 547 and (4) 2005 SCR 37.
8. ' Conversely, Karamdad Khan, Advocate, the learned counsel for the respondent submitted that the respondent has been appointed guardian under section 7 of The Guardians and Wards Act, 1890 (hereinafter to be referred as the Act) but the appellants failed to prove the conditions for removal of guardian enumerated in section 39; therefore, application of removal of the guardian is liable to be dismissed. The learned counsel pointed out that appellant No,1 has murdered her husband; therefore, she is not entitled to be appointed guardian for the person and property of the minors.
9. The learned counsel maintained that respondent is taking proper care of the minors and he has also transferred the property of the deceased, father of the minors in favour of minors through gift deed dated 21-4-2003 which proves the intention of the respondent that he is very much interested for the welfare of the minors and he is faithful in performance of her duties. The learned counsel laid great stress upon the point that the respondent has spent the money in the interest of minors and has proved the same while producing the relevant receipts. The learned counsel finally submitted that the impugned decision has been recorded in accordance with law, which does not warrant any interference by this Court.
10. ' After hearing the arguments of the learned counsel for the parties, the judgment was reserved and after perusing the record, the following points were formulated by this Court on 27-10-2007:---
(1) Whether an appeal lies against an order refusing to remove a guardian?
(2) Whether a guardian ceases when a ward attains the age of majority and what is the age of majority under the relevant law?
11. ' The arguments were also heard pro and contra on the aforesaid points. The learned counsel for the appellants contended that in the light of case-law cited, the instant appeal is tenable. He further submitted that when a minor attains the age of 18 years, the guardian ceases to act.
12. ' On the other hand, the learned counsel for the respondent argued that the order refusing for removal of guardian is not appealable under section 47 of the Act; therefore, instant appeal is liable to be dismissed. The learned counsel further maintained that when a guardian is appointed by the Court, the minor, will attain majority at the age of 21 years. To substantiate the contentions, reliance was placed upon (i) AIR 1921 Pat. 166(2), (ii) AIR 1925 Oudh 260 and AIR 1948 All.
13. 296.
14. 'I have given my deep consideration to the arguments addressed at Bar and perused the record made available. At the very outset, it will be pertinent to note that under section 21 of the Azad Jammu and Kashmir Family Courts Act, 1993, a Family Court has been empowered to act like a District Court for the purposes of the Guardians and Wards Act, 1890 and while dealing with the matters mentioned in the Act, the District Court shall follow the procedure provided in the aforementioned Act. In this manner, the Family Court has to follow the procedure provided by the Act. As stated earlier, the instant appeal has been filed against the order of refusal to remove the guardian appointed by the Court below. Therefore, the provision of section 39 of the Act has to be followed which prescribes the grounds for removal of the guardian whereas section 47 of the Act defines the appealable orders. To appreciate the preposition, the relevant sections 39 and 47 of the Act are reproduced:- "39. Removal of Guardian.--- The Court may, on the application of any person interested, or of its own motion, remove a guardian appointed or declared by the Court, or a guardian appointed by will or other instrument, for any of the following causes, namely:---
(a) for abuse of his trust;
(b) for continued failure to perform the duties of his trust;
(c) for incapacity to perform the duties of his trust;
(d) for ill-treatment, or neglect to take proper care, of his ward;
(e) for contumacious disregard of any provision of this Act or of any order of the Court;
(f) for conviction of any offence implying, in the opinion of the Court, a defect of character which unfits him to be the guardian of his ward;
(g) for having an interest adverse to the faithful performance of his duties;
(h) for ceasing to reside within the local limits of the jurisdiction of the Court;
(i) in the case of a guardian of the property, for bankruptcy or insolvency;
(j) by reason of the guardianship of the guardian ceasing or being liable to cease, under the law to which the minor is subject: Provided that a guardian appointed by will or other instrument, whether he has been declared under this Act or not, shall not be removed---
(a) for the cause mentioned in clause (g) unless the adverse interest accrued after the death of the person who appointed him, or it is shown that, that person made and maintained the appointment in ignorance of the existence of the adverse interest, or
(b) for the cause mentioned in clause (h) unless such guardian has taken up such a residence as, in the opinion of the Court, renders it impracticable for him to discharge the functions of guardian."
15. "47. Orders appealable.--- An appeal shall lie to the High Court from an order made by a Court-
(a) under section 7, appointing or declaring or refusing to appoint or declare a guardian or
(b) under section 9, subsection (3), returning an application, or
(c) under section 25, making or refusing to make an order for the return of a ward to the custody of his guardian, or
(d) under section 26, refusing leave for the removal of a ward from the limits of the jurisdiction of the Court, or imposing conditions with respect thereto, or
(e) under section 28 or section 29, refusing permission to a guardian to do an act referred to in the section, or
(f) under section 32, defining, restricting or extending the powers of a guardian, or
(g) under section 39, removing a guardian, or
(h) under section 40, refusing to discharge a guardian, or
(i) under section 43, regulating the conduct or proceedings of a guardian or settling a matter in difference between joint guardians or enforcing the order, or
(j) under section 44 or section 45, imposing a penalty:"
16. ' A careful perusal of the above stated provisions of law shows that on which grounds, a guardian appointed by the Court can be removed. Similarly, the appealable orders have also been pointed out. On this account, an appeal can be presented to this Court only against an order of removal of guardian under section 47 clause (g) but no appeal has been provided by the Act when the Court refuses to remove a guardian.
17. ' Coming to the instant case, the learned Judge, Family Court acting as District Judge for the purposes of the Guardians and Wards Act has refused to remove the guardian; therefore, the present appeal is not tenable and liable to be dismissed on this score only. My aforesaid view finds support from a case titled Suraj Narayan Singh v. Bishambhar Nath Bhan AIR 1925 Oudh 260, where the following principle was enunciated:--- "I am satisfied that no appeal lies from the order to which reference has already been made. The right of appeal must always be founded upon an express rule to that effect or a rule by unavoidable implication. The only appeal permissible with reference to an order under section 39 of the Act is only against an order removing a guardian under that section. The words removing a guardian under clause (d) of section 47 are not descriptive of the section but of the order against which appeal is provided for. This is borne out by reference to the language of clause (a) of section 47 where we find, with reference to section 7, an appeal permitted from an order refusing to appoint a guardian, though section 7 does not in terms provide for such an order. There is also authority that an order refusing to remove a guardian is not appealable, though obviously such an order shall ordinarily be passed in proceedings falling under section 39 of the Act; See Pakhwanti Dai v. Indra Narain Singh (1896) 23 Cal. 201 and In re: Bai Harkha (1896) 20 Bom.
667. The appellant is not aggrieved with the order removing the respondent from the guardianship.
18. There is, therefore, no appeal before me in terms of clause (g) of section 47. In my opinion the present appeal is not maintainable."
19. 'It may also be mentioned here that impugned order has attained F finality under section 48 of the Act and cannot be contested by the appellants.
20. ' The next question, which requires determination is whether Zubair Qasim has attained majority; therefore, the authority of guardian ceases under section 41 subsection (1) clause (c) of the Act. It has been argued by the learned counsel for the appellants that Zubair Qasim has attained majority because at the time of presentation of application for appointment of guardian on 19-4- 2003, Zubair Qasim was 13 years old; therefore, he has attained the age of 18 years at the time of filing of appeal. Thus, the authority of guardian ceases. It is very important to observe that under section 3 of The Majority Act, 1875 when a guardian is appointed by the Court his authority ceases when the minor attains the age of 21 years and not the age of 18 years; therefore, the authority of respondent-guardian does not cease even to the extent of Zubair Qasim until he attains the age of 21 years. In this respect reference can be made to a case titled Shaikh Abdul Rahim v. Mst Barira and others AIR 1921 Pat. 166(2), wherein it has been opined:--- "Where once a certificated guardian is appointed of a minor, the minor will attain majority only at the age of 21 years, although the guardianship certificate is cancelled before minor's attaining majority."
21. ' The same view was affirmed in the case reported as Muhammad Yusuf and another v. Abdul Wahid AIR 1948 All. 296, wherein it has been held as under:-- "There is the finding of fact by the learned Civil Judge that the defendant opposite party was born in 1910. He was, therefore, minor in 1929. It is in evidence that in the year 1921 the defendant's mother, Mst. Hanifa, was appointed his guardian. By virtue of section 3, Majority Act, 1875, the defendant attained majority on the completion of 21 years. The learned counsel for the applicant, however, contends that as subsequent to her appointment as a guardian Mst. Hanifa died, the age of majority of the defendant was reduced to 18 after her death. I am unable to agree with this contention. In 57 I.C. 678, it was held that the termination of the guardianship does not make any difference to the age of majority, for the Indian Majority Act expressly declares that every minor of whose person or property a guardian, other than a guardian ad litem, has been appointed by any Court of justice "shall be deemed to have attained the majority when he shall have completed the age of 21 years and not before". The effect of this provision is that once a guardian of a minor is validly appointed that minor's age of majority becomes fixed by law at 21 and nothing which may subsequently transpire can have the effect of reducing it to 18."
22. ' So far as the case-law referred to by the learned counsel for the appellant is concerned, Mst. Zakia Khatoon's case 1998 SCR 140, Mst. Azra Bi's case 2003 MLD 1213 and Bashir Bibi's case 2005 YLR 547 pertain to the custody of minors rather than the question of appointment of guardian of their person and property. Similarly, Irshad Begum's case 2003 YLR 3245 and Mst. Robeena Fazil's case 2005 SCR 37 are beyond the controversial issue and have nothing common with the facts of present case.
23. ' In view of the aforesaid position, it is not deemed expedient to interfere in the impugned decision, it is, therefore, sustained and the appeal is dismissed.