MUHAMMAD AFZAL ZULLAH, J.-These two appeals through special leave call in question judgment dated 18-11-1979 whereby a learned Single Judge of the Lahore High Court disposed of two guardianship appeals and while reversing the order of the learned Guardian Judge, appointed Mst.
Majidan Begum (respondent-father's sister of the minors) as guardian of person and property of the .Minors involved in this case in preference to Mst. Sardaran, their mother.
The father of Mst. Salim Akhtar (born in 1958), Muhammad Islam (born in 1960), Muhammad Fayyaz (born in 1962), Muhammad Afzal (born in 1965) and Mst. Kausar Shamim (born in 1967), died in 1967 after the birth of the last mentioned child, namely, Mst. Kausar Shamim. Mst. Sardaran, the appellant and the mother of the children, did not re-marry for some time and stayed with the family of her deceased husband in District Sahiwal. Later on, however, as is claimed by her, in order of afford protection to her chiidran she married one Muhammad Ismail who admittedly is not related to the children within the prohibited degree. Mst. Sardaran changed her residence and at the time of filing of her application for guardianship she was residing at Lahore. 1t appears that when she left the house of her deceased husband, she took with her three children namely Muhammad Fayyaz, Muhammad Afzal and Mst. Kausar Shamim. Mst. Shamim Akhtar and Muhammad Islam stayed back under the protection and care of Mst. Majidan, the sister of their deceased father. After some time Mst. Majidan filed an application for the guardianship of the children for person and property both. This case commenced at Sahiwal. The second application was filed by Mst. Sardaran at Lahore with a similar claim that she should be appointed as guardian of all the children. Both the cases were consolidated and tried at Sahiwal. The learned Guardian Judge after careful analysis of the evidence led by both the sides came to the conclusion that it was in the welfare of the minors that Mst. Sardaran be appointed as their guardian of person as well as of property. It may be mentioned here that the deceased husband of Mst. Sardaran had left some property including land which, it is mentioned in evidence, was in a joint khata with Mst.
Majidan in District Sahiwal.
The decision of the learned Guardian Judge was challenged by Mst. Majidan through two first appeals filed in the High Court. A learned Single Judge of the High Court allowed these appeals mainly on the grounds :-
(a) that Mst. Majidan (the present respondent) held the land jointly with land left by the father of the minors ;
(b) that she brought up three children of her deceased brother namely Mst. Shamim Akhtar, Muhammad Islam and Muhammad Fayyaz (the last one had gone to the house of Mst. Majidan on attaining majority), and had arranged the marriage of Mst. Shamim Akhtar at her own expense ;
(c) that Mst Sardaran lived at a considerable distance away from the family of the deceased father of the children ;
(d) that she had married a stranger and was also a stranger to the children's paternal family ;
(e) that she had no experience of managing the landed property ; and lastly.
(f) that even if she had taken care of the physical and personal needs of the minors who stayed with her, it would not be of any advantage to her firstly, because she did so with the funds obtained from the income of the land of the minors ; and, secondly, because she had not taken much care about the "spiritual, moral, social and economic welfare" of the minors.
2. Leave was granted to examine whether the well established principles with regard .To the questions of guardianship and welfare of the minors have not been ignored by the High Court.
3. Both the learned counsel have admitted that Mst. Shamim Akhtar having attained majority is now living with her husband and the question of her guardianship is no more a relevant factor for the decision of these appeals. Muhammad Islam and Muhammad Fayyaz have also attained majority and are now living with Mst. Majidan out of their free will. The question regarding the appointment of a guardian essentially now relates to two children namely Muhammad Afzal and Mst. Kausar Shamim. It is also an admitted position that there is no known close paternal relation of the minor who has shown any interest in claiming the guardianship of the minors. Another important admitted position is that the husband of Mst. Majidan is not related to the minors within the prohibited degree and further that she did not enter the witness box.
4. In the light of the above circumstances and admitted facts it needs to be seen whether the established principles with regard to the welfare of minors have been followed in this case. Mst.
Kausar Shamim the only female child whose guardianship is in dispute, has not yet reached the age of majority, not even that of puberty. I here is no denying the fact that her welfare would be in appointing her own real mother as her guardian in preference to any other close relation unless there is an impediment in this course being adopted. The fact that Mst. Sardaran had re-married a stranger would not resolve the controversy regarding who between the two ladies should be preferred in this behalf; because Mst. Majidan is also married to a stranger. Other things being equal, it would definitely be in the welfare of the minor that her guardianship is entrusted to her real mother. The circumstance that Mst. Sardaran is residing away from the other members of the family would make no difference because the minors' own elder brother namely, Muhammad Afzal is also residing with her. Moreover it appears that Mst. Shamim Akhtar having married, is the lady of her own house, and Mst. Kausar Shamim who has been brought up by her own mother since the death of her father from the very childhood would, in reality, be thrown in a comp--aratively hostile atmosphere if her guardianship is entrusted to Mst. Majidan. The mere fact that Mst. Sardaran has no experience of managing landed property would, when. Compared to the similar position of Mst.
Majidan, not disentitle her to a decision in her favour. If Mst. Majidan has so far looked after the needs of Mst. Shamim Akhtar, Muhammad Islam and Muhammad Fayyaz, that would not show that Mst. Sardaran has neglected the needs of the remaining minors namely, Muhammad Afzal and Mst. Kausar Shamim. On this question there is nothing to choose between the two ladies. On the question of what the learned Single Judge termed as "spiritual, moral, social and economic" welfare of the minors, there is no much difference between the two ladies. It appears from the evidence that the family of the deceased belongs to cultivating class of the rural areas and the higher education of the minors is neither in the mind of the appellant nor the respondent took any special care in this behalf. There is, however, one positive factor which goes in favour of the appellant, that she, as found by the learned Judge of the High Court, looked after the physical and personal needs of the minors and there is no complaint about it. Keeping in view all the circumstances it seems there was no justification for setting aside the order of the learned Guardian Judge. One factor which, it can be said, weighed heavily with the learned Single Judge in the High Court was that Mst. Sardaran had, after the death of the father of the children, married a stranger, therefore, in the house of a stranger step-father the minors' interest would not be safeguarded even by their mother. It was, however, ignored that their paternal aunt, namely, Mst.
Majidan, who was the other claimant for their guardianship, was also married to a stranger; and if this were the deciding factor, the judgment should have been rendered in favour of the mother who had closer relationship with the minors. If this aspect had not been ignored, the appeal in the High Court might have been decided differently.
5 Keeping in view the welfare of the minors, in the light of the above discussion, it would have been necessary that the order of the learned trial Court appointing the appellant as the guardian for person and, property of the two minors namely, Mst. Kausar Shamim and Muhammad Afzal, restored. But due to efflux of time some change has taken place, Mst. Kausar Shamim has grown up and is approaching puberty. While in the house of her step-father (although living with her real mother) it is necessary in the circumstances of this case, that some other close male relation of he should oversee her future bringing up. Afzal the other minor who is no nearly 16 years of age would undoubtedly perform this function to some e extent. This is also a factor going in favour of the appellant that guardian--ship of Muhammad Afzal along with Kausar Shamim should be entrusted to her. But in our view a modification in the order of the learned Guardian Judse would he conducive to the welfare of the minors involved in this case namely, Kausar and Afzal. Muhammad Islam who is their elder 'brother is now nearly 21 years of age. He is sui juris and is capable of looking after not only his own interests but can also oversee the bringing up of Kausa and Afzal. We, therefore, while restoring the order of the learned Guardian Judge regarding the guardianship of Muhammad Afzal and Kausar Shamim in so far as their persons are concerned modify that order regarding their property and appoint Muhammad Islam, their elder brother, and Mst. Sardaran, their mother, jointly as guardians for their property. The learned Guardian Judge would take further proceedings with regard to the security and other matters in accordance with law. These appeals are thus allowed but the parties are left to bear their own costs.