1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.418 OF 2010 WITH CIVIL APPLICATION NO.79 OF 2010 WITH FIRST APPEAL (ST) NO.27099 OF 2009 Mr.Pandurang Tukaram Kanse & Ors. )..Appellants Vs. Mr.Vikramaditya Jagannath Kanjle )..Respondent ---- Mr. Shashi Pandey i/by P.R.Yadav for the appellants. Ms.Rebecca Gonsalves i/by Prakash Mahadik for the respondent no.1. ---- Coram : R.S.MOHITE,J Date : 10th March, 2010 PC FIRST APPEAL NO.418 OF 2010 1 This is an appeal filed by the original respondent no.3 in Misc. Civil Application No. 230 of 2006 impugning a judgment and order dated 18.11.2009 passed by the Adhoc District Judge-I Satara, allowing the aforesaid Misc. Civil Application No.230 of 2006 filed by the applicant before the said Court. The brief facts of the case are as under :- 2 The applicant Vikramaditya Jagannath Kanjle is a farmer by occupation. He owns two separate agricultural lands as well as a share in certain ancestral lands. He was married to one Surekha on 19.3.1994. Of that marriage, a son by name Akshay was born on 25.9.1995 and subsequently a daughter by name Anuja was born on 9.4.1998. The 2 family consisting of the applicant, his wife and 2 children were residing in Satara city. The wife Surekha expired on 24.2.2001. Her body was found in a Well which is situated in the field of the applicant. The opponent no.2 i.e brother of Surekha filed a FIR and the case was registered under Section 498 and 306 of IPC against the applicant and his parents and all such accused family members of the applicant were arrested. On the same day after the incident, present respondent no.1 Pandurang Tukaram Kanse who was the maternal grand- father took the two children into his custody and the children started residing at the house of the maternal grand father. Though the parents of the applicant came to be released on bail, the custody of the applicant was continued as he was not granted bail. While he was in custody on 26.8.2003 by executing deeds, he transferred all his property in the name of his children. It is his case that he intended to execute a gift deed but actually what was executed by mistake on his part was a sale deed in favour of his children. It is also his case that on 10.7.2003 his father gave an amount of Rs.2 lakhs to Sanjay for depositing the amount in the bank for the benefit of the children. The amount was accordingly deposited by Sanjay by showing himself and his brother Sunil as guardians of the children. The applicant and his family members came to be acquitted on 24.9.2003 of all offences and after his acquittal he came to be released. On his released, he found that the possession of all his property had been taken over by the present respondents and therefore, in September-2006 he filed a Special Civil Suit No.149/2006 for a declaration that the sale deed executed on 26.8.2003 was void. Subsequently in November-2006 he filed an application for custody of his children on the ground that he was their natural guardian. The suit filed by the applicant came to be decreed by the Civil Court on 23.6.2009 in his favour and against that judgment and order, the aforesaid appeal stamp no.27099/99 has been filed by the original opponents. The application for custody of the children filed by 3 the original applicant also came to be decided in his favour on 18.11.2009 and First Appeal No.418/2010 is filed against the said order. 3 Though this is a First Appeal, by way of a compilation, the entire evidence has been placed before this Court. I find that the appellant no.1 Pandurang Tukaram Kanse is now by an elderly man aged 74 years. He has no occupation other than being an agriculturist. None of the present appellants had filed a separate application for being appointed as a guardian in respect of the minor children. Though they have chosen to oppose the application made by respondent no.1, I find that the appellant Nos.1 & 3 did not enter the witness box. The original opponent no.2 has entered the witness box. The children are admittedly in the custody and care of opponent No.1 Pandurang Tukaram Kanse. It is the case of Sanjay that they are residing in the joint family. I find that the children were admittedly residing with their father till the death of their mother on 24.12.2001. The family of the appellant No.1 is residing in Angapur. In so far as original appellant no.3 is concerned, it is an admitted position that he is living in Thane. Angapur village is about 25 kilo-meters away from Satara. In so far as criminal case against the applicant is concerned, on perusal of the judgment passed by the Sessions Court, I find that there is a clean acquittal. It is observed that a possibility of accidental death could not be ruled out. There is no history of any cruelty or abuse of the children. The Respondent No.1 the father of the children has filed an affidavit dated 24.2.2010 in this Court. He has placed on record that he resides jointly with his father Jagannath aged 65 years, his mother Sushila and his sister- in-law . There are two nephews aged 6 years and 4 years residing with the family. He has stated that there is a complete family environment and his daughter will have the company of 2 women. He has stated that access can be given to the appellants. It is seen that access 4 has already been provided for by the impugned judgment and order. He has stated that there are several English medimum schools in Satara and that he will provide his children with the best possible education. He has stated that he has not performed a 2nd marriage. In my view, Satara being a larger city has better education prospects as compared to the village where original appellant No.1 is residing. 4 In matters of such nature the main consideration that falls for determination is the welfare of the children. I find that in this case the welfare of the children lies with their father who is also a natural guardian under Section 6 of the Hindu Marriage & Guardianship Act. Since the Respondent no.1 is acquitted, there are no criminal antecedents. I find that the father even in custody, out of love and affection, appears to have been transferred all his property in the name of the children. As against this, I find that there is an observation in the impugned judgment that present appellant no.2 Sanjay and his brother Sunil took a loan against fixed deposits which were lying in the name of the children. It is the case of the Respondent No.1 that these fixed deposits were created out of money given by his father to Sanjay. It is seen that the appellant nos.1 & 3 are claiming that it is their own money which they have deposited in the bank for the benefit of the minors. If that was so, then they ought not to have obtained a loan to encumber the fixed deposit account. In these backgrounds, the trial Court has rightly found that these actions on the part of appellant nos.1 & 3 were not in the interest of the children. In my view, the future of the children lies with their father and not with the distant relatives of the sons of his maternal grand father who have their own families to support. Taking an over all view of the matter, in my view, this is not a case where the Appeal should be admitted. Appeal is therefore, dismissed. 5 5 Advocate for the appellants (original respondents) states that he would like to approach Apex Court and therefore, seeks a stay of the implementation of the impugned order. I direct that the impugned order should not be executed for a period of six weeks. In the meanwhile, on the Sundays which intervenes during the period of six weeks, the applicant will have access and may go to meet the elder son Akshay in the boarding school. The applicant is however, not to take son away from the boarding school. CIVIL APPLICATION NO.79 OF 2010 As the First Appeal has been dismissed, Civil Application does not survive and stands disposed off accordingly. FIRST APPEAL (ST) NO.27099 OF 2009 As complete copy of appeal paper book is not served, by consent, S.O to 17.3.2010. In the meanwhile, status-quo as of today to be maintained by both the sides. (R.S.MOHITE,J) 6 7