' This appeal has been filed against the order dated 8th June, 1983 by the learned District Judge Thatta in Family Suit (G & W) No, 14 of 1 .83, whereby he rejected the application made under sections 10 and 29 of the Guardians and Wards Act, 18 0 by the appellant for his appointment as guardian of person and properties of the minors and also refused to grant permission to sell the properties of the said minors.
' The appellant is the father of (i) Sultan Khusro Nizamuddin and (ii) Khurram Masood Fariduddin (both minors aged 7 and 6 years respectively) and uncle of (iii) Bakhtiar (minor aged about 6 years son of Abdul Rehman Abbasi, the respondent No, 4).
2. Perusal of the record shows that in the agricultural land shown in the "Schedule of the Property"
Annexure "A" to the memo of appeal, measuring 184-37 acres situated in Deh Markhan, Taluka and District Thatta, the above-named three minors have undivided (joint) share 9 paisas each, i,e, total 27 paisas. According to the case of the petitioner/appellant the entire land in question was purchased in 1976 for Rs, 3,25,000 in which besides the three minors (having total 27 paisas share), the other joint owners are Sharafat Ali Abbasi (grandfather), Mst. Qamar Jahan Abbasi (grandmother), Mst. Neelo Abbasi wife of Khalid Javed Abbasi (mother of Sultan Khusro Nizamuddin and Khurram Masood Fariduddin), Abdul Rahman Abbasi (father of minor Bakhtiar) and Mst. Tasneem (mother of minor Bakhtiar) and the appellant. The land was purchased from Mir Yousuf Ali and Mir Akbar Ali.
3. According to the appellant in the interest of minors and to utilise the proceeds thereof for their upbringing and benefit it is essential that the shares of the minors in the land jointly owned be sold as the majority shareholders who are adults and related to the minors have also agreed to sell the entire land including their own shares by agreement dated 21st April, 1983 for Rs, 11,50,000 out of which the share of the minors would fetch Rs, 3,19,500. It is submitted that the sale of the joint and undivided shares of the minors in the said land would be in the interest of the minors as their parents, grandparents etc. Have also agreed to sell their own undivided shares in the said land. It is also stated in the application verified on oath that the market value of the :tare of the minors is Rs, 3,10,500 and that it is in the interest of the minors to sell the said land for which purpose agreement dated 21st April, 1983 has already been made.
4. The learned Guardian Court, dismissed the application on the grounds :- "(1) that the agreement concluded for sale is not only for the sale of shares of the adult shareholders but is also for the sale of shares of the minors. It was made without the prior permission of the Court and they came to the Court to remove the lacuna.
(ii) that in the presence of the father of minor Bakhtiar, the appellant could not be appointed as guardian of the person and property of the minor (Bakhtiar).
(iii) that the appellant has his own interest in seeking his appointment as guardian of the person and properties of the minors then to look after the welfare of the minors.
(iv) that there is nothing on record to show that the disposal of the land of the minors would be for their welfare."
5. I have beard the learned counsel for the appellant and after perusal of the record, application and the affidavits. I am of the opinion that the impugned order passed by the learned Guardian Court cannot be sustained.
As regards the point No, 1 it may be observed that the share of three minors in the land in question is joint and undivided. The adult shareholders who are none other than the near blood relations of the minors have agreed to sell their shares. It would be impossible for the minors (or for that matter any one else) to look after their undivided share (27 paisas) in the land after the adult relatives sold their own shares. I find nothing illegal in the conduct of the appellant and other joint owners, entering in an agreement of sale without obtaining prior permission of the Guardian Court as in such a case the agreement would not be binding upon the minors unless the Guardian Court granted the requisite permission. It would however be observed that in the agreement of sale under consideration vide clause 9 it is expressly provided that the vendors shall obtain sale permission from the competent Court for the sale of the shares of the minors.
' Thus I find no irregularity in the appellant approaching the Court for permission as contemplated by the law for sale of shares of the said minors.
6. As regards the point No, 2, the learned Guardian Court failed to appreciate the provisions of sub- clause (b) of section 19 of Guardians and Wards Act. It may be noted that under the said provision the restriction is on the appointment of a guardian of person of a minor in the presence of the father unless the father in the opinion of the Court is unfit to act as guardian of the person of the minor. There is nothing to prevent the Court from appointing a person other than the father, as the guardian of the property of a minor The learned lower Court further failed to appreciate that Mr. Abdul Rahman Abbasi, the father of minor Bakhtiar had filed his own affidavit giving no objection to the appointment of the appellant as guardian of person and property of his own son (Bakhtiar).
Before this Court the learned Advocate for Mr. Abdul Rahmam Abbasi the father of minor Bakhtiar has made the statement that he has no objection if the father of Bakhtiar is appointed guardian of person and appellant is appointed as guardian of the property of Bakhtiar and if the permission is granted to the appellant to sell the property of Bakhtiar as it is in the interest of the said minor.
7. As regards the point No, 3 the observation of the learned Guardian Court, one fails to understand as to how one can conclude that in making the application for appointment of guardian or seeking permission for the sale of the land the appellant has his own interest then to look after the welfare of the minors. It has rightly been pointed out by the learned counsel for the appellant that there is nothing on record to justify these observations. On the contrary, as already pointed out, not only the consideration for which the shares of the minors is sold is adequate but it is in their interest that the same be also sold alongwith the sale of shares of the other joint owners.
8. As regards the last point, finding that the learned Court below has failed to appreciate that the minors have only 27 paisas undivided joint share in the land in question and that the refusal to grant permission to sell their shares, when their parents and grandparents have already agreed to sell their own undivided shares, would leave the shares of the minors in the hands of strangers and no one to look after their interests.
' The learned Court also failed to consider the fact that the entire land which was purchased in 1976 for Rs, 3,25,000 would now fetch Rs, 11,50,000 in which the share of the minors alone (for Rs, 27 paisas) would come to Rs, 3,25,000 which is the prevailing-market as per affidavit filed in the Court.
' I accordingly find that it is in the interest and welfare of the minors to grant the permission to sell the land as prayed.
9. The upshot of the above discussion is that being of the opinion that the order passed on 8-6- 1983 by the learned Guardian Court is not based upon proper appreciation of the facts, I set aside the same and appoint the appellant guardian of person and property of his sons (i) Sultan Khusro Nizamuddin, and Gil Khurram Masood Fariduddin (minors). With the consent of Mr. Abdul Rehman Abbasi, father of the minor Bakhtiar the appellant is also appointed guardian of the property of the minor Bakhtiar.
10. Also for the reasons discussed above, the appellant, who is appointed guardian of the property of all the three minors, is granted permission to sell the shares of the said minors in the land shown in the 'Schedule of Property' annexed to the memo. Of appeal in accordance with the agreement of sale dated 21-4.1983.
The appellant however, is directed that the share of sale-proceeds falling to the lot of the above- named three minors shall be deposited with the Nazir of this Court who shall invest the same in Khas Deposit Certificates. It will be open to the guardian appointed as above, to make applications from time to time seeking directions for change in the investment or purchasing properties for the benefit of the minors. Application, if any made, shall be decided on its own merits.