' Through this Constitutional Petition Malik Shabbir Ahmed petitioner wants this Court to declare orders, dated 9-7-1984 and 19-9-1984 passed by the Guardian Judge, Lahore respondents Nos. 2 and Additional District Judge, respondent No, 1 to be without lawful authority and of no legal effect.
2. The facts leading up to this petition briefly are that Malik Nazir Ahmad brother of Malik Shabbir Ahmad petitioner died on 1-12-1981 leaving behind minor son namely, Mubeen Ahsan and minor daughter Mst. Rehana Kausar and widow Mst. Shafqat Ara respondent No,
3. He also left property detailed in the application for the appointment of the Guardian. Feeling that the mother respondent No, 3 would destroy or damage the properties inherited by the minors, the petitioner and respondent No, 2 to 5 moved application before the learned Guardian Judge respondent No, 2 for appointment of the Guardian of the properties of the minors as well as of their person. The application was resisted whereon following issues were framed:
(1) Whether it is necessary to appoint a guardian of person and property of the minors? O.P.A.
(2) Whether the petitioner is the fit person to be appointed as a guardian of the property of both the minors ? O.P.A.
(3) Whether it is in the interest of the welfare of the minor Mubeen Ahsan to appoint the petitioner as guardian of his person?
(4) Relief.
' The petitioner produced Muhammad Suleman Senior Clerk P.W.1 and Muhammad Anwar Accountant P.W. 2, Arshad Mahmood P.W.3, Muhammad Yousaf P.W.4, Muhammad Ramzan P.W.5, Abdur Rehman P.W. 6, Zia-ul-Haq P.W.7 and himself appeared as P.W.8. On the other hand respondent No, 3 produced Rahat Samar Clerk D.W.1, Malik Muhammad Ismail D.W. 2, Izharul Haq D.W.3 and herself appeared as D.W.4. The trial Court while discussing issue No,1 found that the appointment of the guardian of person and property of the minor was very much necessary. As far issues Nos. 2 and 3 the trial Court held that Malik Shabbir Ahmad petitioner/applicant was not a fit person to be appointed as guardian to the property nor the welfare of the minor Mubeen Ahsan lies in his custody. Both the issues were thus decided against him. Resultantly the application of the petitioner was dismissed on 9-7-1984. Feeling aggrieved the petitioner filed appeal which too was dismissed by the Additional District Judge, hence this revision.
3. The learned counsel submits that after having found that the appointment of guardian of the person and property of the minors was necessary the learned Guardian Judge should not have dismissed the application of the petitioner; that from the circumstances and evidence produced by the petitioner it stands proved that petitioner was most suitable person to be appointed as guardian of the property and that the welfare of Mubeen Ahsan was in his living with the petitioner.
On the other hand the learned counsel for the respondent No,3 supported the judgment of the Guardian Judge and appellate Court.
4. I have considered the arguments advanced by the learned counsel for the parties with care. I have not been able to persuade myself t agree with the learned counsel for the petitioner. I find that the learned Courts below have applied their conscious mind to the evidence on record and have given sound and cogent reasons in support of their concurrent findings on issues Nos. 2 and
3. The learned counsel has failed to point out any misreading/non-reading of material evidence.
The children are admittedly minoRs, Rehana Kausar has not attained puberty and Mubeen Ahsan is not adult by this time. Mst. Shafqat Ara) is a teacheRs, She has independent source of her income.
As against her, the petitioner is the paternal uncle and the other applicants, i.e, respondents Nos. 2 to 5 are the paternal aunts of the children. In the circumstances of the case I am convinced that both the Courts have rightly held that the petitioner was not a fit person to be appointed as guardian of the property and that the interest of Mubeen Ahsan minor was not in living with the petitioner. For all these reasons I am convinced that as for the appointment of the guardian of the person, no exception can be taken to the impugned judgments. As for the question of the appointment of the guardian of the property, I am of the view that after having felt that the appointment of the guardian of the property was necessary for the protection of the property of the minors, the trial Court should have made attempt to find out person out of the relatives of the minoRs, The relevant law may be reproduced advantageously-- "Section 7.-- Power of the Court to make order as to guardianship. (i) Where the Court is satisfied that it is for the welfare of a minor that 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 .
(2) An order under his 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 instrument 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."
Since despite its findings that the appointing of guardian of the property of the minor was necessary, the Courts below did not proceed further to find out suitable person and has not discharged its legal duty therefore, there was no option but to send back the case to the Guardian Judge for proceedings according to law.