1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.43 OF 2009 Shri Jagdish Nimbai Patil - APPELLANT VERSUS Madhavrao Rajdhar Patil - RESPONDENT ***** Mr.Mukul Kulkarni,Advocate for Appellant; Mr.SP Shah, Advocate for Respondent. ----- CORAM : K.U.CHANDIWAL, J. DATE : 22nd February, 2010. PER COURT : 1) Heard. Admit. By consent of parties AO is taken up for final disposal. Record and Proceedings perused by both the sides. 2) The grand-father from maternal side and the real uncle are litigating over the custody of minor – Anjali, born on 6.9.2001 and in respect 2 of the agricultural fields Gut No.307, 180/1 and 220/1/B situated at Dhamane, Tq. Shindkheda, District Dhule, in which, minor Anjali, through her father, has 50% share. 3) In an unfortunate event, Manisha, mother of minor Anjali, succumbed to burn injuries on 25th January, 2003. In the futile exercise to save her, Sanjay also suffered severe burn injuries and subsequently expired at hospital on 27.1.2003. The minor Anjali, barely sixteen months old was taken by her grandfather (maternal) to look after. It is alleged, uncle Jagdish, being himself prosecuted for abetment of suicide by Manisha, did not bother about the wellbeing of minor Anjali, it is now, in order to obliterate effects of the insurance amount receivable by Anjali, the claims, creating stooge grounds, are raised, which according to grandfather, will seldom ejaculate to its peak. 4) The learned Judge, considering the prosecution faced by the real uncle Jagdish and 3 that the minor Anjali, being taken care by her grandfather – Madhavrao since 2003, granted custody of said minor Anjali to her grandfather Madhavrao and also appointed him as her guardian to look after the properties. 5) The custody and the guardianship to look after the properties being two different phenomena, and apparently the agricultural properties situate at village Dhamane, in which still the present appellant – Jagdish has half share, with minor Anjali, it will not be appropriate and feasible for Madhavrao to take care and look after the agricultural fields by staying at a distance of 50-60 kms. away, as he resides at Karvand, Tq. Shirpur. 6) The other contention from Madhavrao, the grandfather of minor Anjali, was about the benefits derived from the Life Insurance policy. During the course of submissions, both the Counsel informed, neither Jagdish, nor Madhavrao 4 are interested in the amounts received on account of insurance policy of deceased Sanjay. They informed, care can be taken by necessary deposits. This approach needs to be applauded. 7) Considering the ground realities and particularly in terms of Section 15(4) of the Guardians & Wards Act, 1890, there being a legal arrangement to appoint separate guardian for a person and property of a minor, and such prayer incidentally was made in the pleadings by appellant Jagdish before the learned District Judge in M.C.A.No.22/2004. I find it just and feasible to entertain the same. There is a ground raised in the appeal to this effect, being ground no.III, though no prayer is effectively worded and surfaced. 8) In the set of facts, the welfare of the minor being paramount aspect and since minor Anjali has been with her grandfather from the age of 16 months, he has incidentally developed love 5 and affection and no care was taken by uncle Jagdish, as is surfaced, the custody of minor Anjali needs to be retained by her grandfather Madhavrao as sought through application before the learned Judge. However, the arrangement in respect of the agricultural fields will have to be separately done. In addition, Section 12 of Hindu Minority and Guardianship Act, 1956, comes to the aid of uncle Jagdish, as the properties even from the contention of Madhavrao, is not yet partitioned. Hence, order. 9) The Appeal from Order is partly allowed. The impugned order passed by learned District Judge-2, Dhule, in so far as it directs appointment of applicant – Madhavrao Rajdhar Patil(grandfather of minor Anjali) as a guardian for her custody, is maintained and upheld and to remain in tact. However, the order in respect of the immovable properties is modified. The real uncle – Jagdish s/o Nimba Patil be appointed as a Guardian of the minor for agricultural fields 6 being Gut Nos.307, 180/1, 220/1B, situate at village Dhamane, Tq. Shindkheda, District Dhule. The real uncle Jagdish shall not be entitled to dispose of the share of the minor Anjali by any mode and he shall not create any third party right/interest or encumber the same. Any approach inviting unwarranted litigation, will also render in cancellation of the order recorded today. The uncle Jagdish will necessarily maintain regular accounts and furnish the same yearly to Madhavrao, grandfather of minor Anjali. 10) The amount of insurance cover being LIC policy No.67787172 shall be receivable by Madhavrao, on its receipt, the amount shall be invested in a nationalized bank for a period of five years with a rider to receive accrued interest as per the Rules to enable to maintain minor Anjali. 11) The grandfather Madhavrao is entitled to sue Jagdish on behalf of the minor for partition, 7 if so advised. No costs. (K.U.CHANDIWAL) JUDGE bdv/AO43.09