Facts:

Lekh Raj Kukreja, petitionerhusband and Ms. Raymon, respondent-wife were married way back in
April, 1977 and thereafter they had three children of their wedlock, son Gaurav, being the eldest of
three and other two being daughter. One of daughters was given in adoption to another sister of Ms.
Raymon. It appears from the statement of the counsel for the parties that some Habeas Corpus petition
was filed in respect of daughter Neha and son Gaurav, which was disposed of vide orders dated 10-8-
1988 by a Division Bench of this court. In the said Criminal Writ Petition No. 350 of 1988 it was
agreed between the parties that “the custody of Ms. Neha, who is aged about 5 years will continue to
be with her mother. Ms. Raymon Kukreja. Shri Lekh Raj Kukreja will have right to visit the daughter.
The son of the parties, Master Gaurav, who is a student of Convent of Jesus & Mary, Hampton Court,
Mussoorie will be sent to that school on its re-opening so as to continue his studies. Both Shri Lekh
Raj and Ms. Raymon Kukreja will be free to visit him at Mussoorie in accordance with the rules of
the school. They undertake not to remove their son from that school till orders from the appropriate
court are obtained”. On the basis of this arrangement between the parties the said writ petition was
disposed of. Apart therefrom a petition under Section 7 read with Section 25 of the Act is stated to
have been filed by the husband Lekh Raj Kukreja on 13-9-1988 which was pending in the court of
Ms. Usha Mehra. Addl. District Judge, Delhi. Along with that petition an application under Section 12
of the Act had also been moved in which notice had been issued. It so transpired that the school was
closing for winter vacations for a period of 3½ months with effect from 18-11-1988 and both the
parties are stated to have gone to the school authorities and claimed custody of the child during
vacation period. The custody of the child was given to the husband Lekh Raj Kukreja. Thereafter
another petition under Section 12 of the Act filed by Lekh Raj Kukreja before Ms. Usha Mehra, Addl.
District Judge, Delhi in which notice was ordered to be issued. Against that order of notice C.M. (M)
under Article 227 of the Constitution of India was filed which was disposed of vide my orders dated
19-1-1989 with the directions that as per agreement between counsel for the parties the question of
custody and right of respondent to take Gaurav with her for the period of vacations may be left to be
determined by the lower court and accordingly the parties appeared before the lower court and the
impugned order was passed after hearing the counsel for the parties.

CONTENTIONS PLAINTIFF

The submission of the learned counsel for the husband is that father is the natural guardian of the
child Gaurav, he being the male child of about 11 years of age, and as such he was entitled to the
custody thereof. It is also alleged that wife is living in adultery and as such not fit to be handed over
the custody of the son.

learned counsel for the petitioner-husband had drawn by attention to a certificate issued by the
hostel Superintendent of St. Zavier Hostel of the school of Master Gaurav which shows that the wife
had also agreed to the child being taken by the father, as the boy had insisted upon going with the
father, although of course, the correctness of this statement of fact in the certificate is disputed by
the learned counsel for the wife.

Learned counsel for the petitioner has drawn my attention to principles of law enunciated in Om
Parkash v. Pushpa, 1975 Raj Law Reporter 29 (1).

It has been observed as under: “The provisions of the Guardian and Wards Act, and the Hindi
Minority and Guardianship Act clearly point in one direction and it is this. Of a male child of 10½
years the father is the natural guardian. He does not require an appointment by any court. His
personal law gives him that right. He is entitled to the custody of the child and he can enforce his
right to that custody at any time. It is true that the rules regarding guardianship and custody of the
minor are not rigid and inflexible. These are also subordinate to the paramount considerations of the
welfare of the minor”.

It has further been observed in Smt. Sarla Shyamsunder Purohit v. Anandrai Harishanker Trivedi,
1976 HLR 731 (2) as under: “Before turning to the facts of this case, it will be appropriate to reflect
upon the considerations Page: 222 required to be kept before the mental eye in deciding a question
as regards the custody of a minor child. The overriding consideration, it can scarcely be doubted,
must be the welfare of the child. Every other consideration must be subordinated to this paramount
consideration for the very jurisdiction which is entrusted to the court by the society is with an eye on
the welfare of the child. So often the expression “the right of the father or right of the mother” is
employed. The expression ‘right’ is altogether out of place in considerations relating to the custody
of a minor child unless one were to proceed on the assumption that the child is a chattel or a
property of the parents”

CONTENTIONS RESPONDENT

As against this it is submitted by the learned counsel for the respondent-wife that for purposes of
disposal of Section 12 application it is the interest of the minor which has to be supreme rather than
the alleged legal right as natural guardian of the father. It has further been submitted that because of
the conduct of the father he is not entitled to the custody of the child altogether more so, because
he is Afghan national. It is also submitted that the father has obtained the custody of the child from
school authorities in violation of the orders and undertaking incorporated in order dated 10-8-1988
of the Division Bench.

ISSUE
1. Whether the father is the natural guardian of the minor child under the meaning of S.12 of the
Guardians and Wards Act, 1890?

2. And if so, whether it supersedes the welfare and interest of the minor child?

LAW

Guardians and Wards Act, 1890 — S. 12 — Father is the natural guardian of the male child — In cases
of custody, welfare of the child is of supreme importance.

S 7-

S 25 –

Analysis:

It is not necessary to go into the question as to whether orders dated 10-8-1988 have been violated
by the father, more so, in view of the fact that the learned counsel for the petitioner-husband had
drawn by attention to a certificate issued by the hostel Superintendent of St. Zavier Hostel of the
school of Master Gaurav which shows that the wife had also agreed to the child being taken by the
father, as the boy had insisted upon going with the father, although of course, the correctness of this
statement of fact in the certificate is disputed by the learned counsel for the wife. From the perusal
of order of learned Addl. District Judge, I find that she has rightly held that it was not possible for her
to go into the allegations and counter-allegations with regard to characters of both husband and wife
at that stage and that she has primarily considered the welfare of the child while disposing of the
application under Section 12 of the Act. Considering the principles of law laid down under Om
Parkash v. Pushpa and Sarla Shyamsundar Purohit v. Anandrai Harishanker Trivdei Court gave the
reasoning that, “A child is not a pawn in the game of litigation between parents to be tossed from
one side to another like a chattel”. In this case, in addition to the fact that father is the natural
guardian of Master Gaurav, the welfare of the child also demands that he should continue to be in
the custody of his father. On my talks with Master Gaurav in my chamber, I have found that he
appears to have attained discretion and he has desired to stay with the father. The child has been
with the father since 18-11-1988 and it would not be appropriate to disrupt the continuity of the
child even if it were for a short period of two weeks. From the perusal of the order of the Addl.
District Judge, I find that sole consideration in her passing the order of giving custody of Master
Gaurav to Ms. Raymon for two weeks was that he would be in the company of his sister Neha. On
this aspect, learned Addl. District Judge appears to have erred. Considering all these facts, I do not
think it would be appropriate to give custody of Master Gaurav to the mother, Page: 223 as if he was
chattel
CONCLUSION

From my discussion above, the order dated 19-1-1988 of the Additional District Judge is modified to
the limited extent that the custody of the child Gaurav would continue to be with the husband till the
termination of the vacations. In view of my findings above, Civil Revision No. 121 of 1989 filed by the
husband is allowed while Civil Revision No. 136 of 1989 filed by the wife is dismissed. 9. It is
submitted by the counsel for the wife that the wife should be permitted to visit the child. I consider it
appropriate to grant the request and accordingly it is directed that the father would permit mother
to visit the child between 4 p.m. and 6 p.m. in the house of Shri R.K. Makhija, Sr. Advocate at W-26,
Greater Kailash-II, New Delhi on 12-2-1989 and on 19-2-1989 at the house of Ms. Rani Jethamalani at
28, Ferozeshah Road, New Delhi while on 26-2-1989 in the house of R.K. Makhija and again on 5-3-
1989 in the house of Ms. Jethamalani. On 8-3-1989 the child will be returned to school.

2nd case

Facts: Shanti Lal, appellant-plaintiff filed suit in the Court of Sub Judge, Udhampur, for the recovery
of arrears of rent amounting to Rs. 1610/- against the respondentdefendant regarding a shop situate
in Main Bazar, Udhampur, leased out to him by his mother Smt. Lakshmi Devi (died in 1977) on a
monthly rental of Rs. 70/- in the year 1971. The respondent-defendant, in his written statement
claimed himself to be the owner of the shop as, according to him, Smt. Lakshmi Devi during her
lifetime, made will bequeathing the shop in his favour. Both the parties led evidence in the case and
the learned Sub Judge came to the conclusion that the shop in question had been transferred to the
defendant by way of a will made by Smt. Lakshmi Devi during her lifetime and as such dismissed the
suit. The plaintiff aggrieved by this judgment filed appeal in the Court of District Judge, Udhampur,
who too concurred with the finding of the trial Court and dismissed the appeal. As such the plaintiff
has now come up in second appeal before this Court.

Issues:

1) Whether the mother of the plaintiff was the sole owner of the suit shop and whether she gave it
to defendant by an oral will? O.P.D.

2) Whether the plaintiff got the suit shop in his share and whether the plaintiff gave the suit shop to
Smt. Lakshmi Devi in lieu of her maintenance? O.P.P.

3) Whether the plaintiff is the owner of the suit shop after the death of his mother?
4) Whether the plaintiff is entitled to recover Rs. 1,610/- as rent from 1st January, 1977 to ending of
November, 1978 from the defendant at the rate of Rs. 70/- per month after the death of Mst.
Lakshmi Devi?

Law:

Indian Succession Act

Will- definition clause put

Contentions of the appellant:

the suit shop was given by him to his mother in lieu of her maintenance during her lifetime and after
her death, he was to succeed to the shop.

Contentions of the respondent:

Learned counsel appearing for the respondent has taken a plea that both the courts below have
come to a concurrent finding Page: 62 of fact that Smt. Lakshmi Devi has made oral will during her
lifetime thereby, bequeathing the suit shop in favour of the respondent and as such this finding
cannot now be assailed in second appeal.

claim of being owner of the shop based on an oral will made by Lakshmi Devi in presence of some
witnesses at the shop.

that the lady made an oral will at his shop in presence of some persons whom he has produced as
witnesses in the case. His claim is thus based on the oral will made by the lady

Analysis:

a registered partition deed according to which the property of Shanti Lal plaintiff was divided into six
shares consisting of his children, wife and mother Lakshmi Devi. The suit shop fell to the lot of Smt.
Lakshmi Devi. There is a stipulation in the said deed that the shop would be used for maintenance of
the lady. This deed was executed on 28-2-1971. Then on 20-3-1971, rent-deed was executed by
virtue of which Mohan Lal, respondent herein, took on lease the said shop from Smt. Lakshmi Devi
on a monthly rental of Rs. 70/-. It is also admitted that the lady was collecting the rent from the
respondent during her lifetime.

Two cases were referred by the Court in this case with respect to the determination of the authority
of the alleged oral will. In AIR 1958 Bom 79, their Lordships in dealing with the law in regard to oral
will have pointed out that in dealing with the cases of an oral will by a Hindu, it is beyond doubt that
the burden of proving an oral will rests very heavily on the person who is desirous of propounding
the oral will and he who rests his title on so uncertain foundation as the spoken words of a man,
since deceased, is bound to allege as well as to prove with most precision the words on which he
relies with every circumstance of the time and place.

In AIR 1977 SC 74, the following principle has been laid down: “In cases where the execution of a Will
is shrounded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant.
What, generally, is an adversary proceeding become in such cases a matter of the Court's conscience
and then the true question which arises for consideration is whether the evidence led by the
propounder of the will is such as to satisfy the conscience of the Court that the will was duly
executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the
will offers a cogent and convincing explanation of the suspicious circumstances surrounding the
making of the will.”

It is thus a clear law that a person who is propounding the oral will has to prove the same beyond
any shadow of doubt by cogent and convincing evidence. The defendantrespondent in the case in
order to prove the oral will made by Smt. Lakshmi Devi has produced Kartar Chand, Shiv Prakash and
Khem Raj as witnesses. The defendant has produced the abovementioned witnesses who have given
almost different versions in regard to the words uttered by the lady. They have been examined after
more than three years of the alleged making of oral will by the lady.

Conclusion

The suit shop came to the share of Smt. Lakshmi Devi, who, soon after the partition, rented out the
same to the defendant on a monthly rental of Rs. 70/-. It is also evident from the perusal of the rent-
deed that Vijay Kumar PW who is the son of the plaintiff, signed this rent-deed on behalf of the lady.
It is also on record and supported by Bodh Raj, brother of the plaintiff and second son of the lady
that Smt. Lakshmi Devi, during her lifetime was residing with the plaintiff who was maintaining her.
These facts taking cogently, will make out that there was no occasion for the lady to make an oral will
and that too in favour of the defendant to whom she had leased out the suit shop. In case she had
any (such) intention, she could not have insisted for the execution of the rent-deed. In view of these
facts and also unsatisfactory and unreliable evidence led by the defendant to prove the making of
oral will by Lakshmi Devi, it cannot be said that the lady made any oral will bequeathing the suit shop
in favour of the defendant. The finding of the Courts below in this regard, in my opinion, is perverse
and is set aside. 9. The appeal as such is accepted and the judgments and decrees of both the Courts
below are set aside. The defendant-respondent has not denied the arrears of rent due against him
and as such suit of the plaintiff is decreed with costs