( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.112 OF 2005 Gorakhnath s/o. Dattatraya Giri .. Appellant Age. 65 years, Occ. Pensioner & Agri., R/o. Ghargaon, Tal. & Dist. Beed. Versus Jagmohan s/o. Shrawan Giri .. Respondent Age. 68 years, Occ. Contractorship & Agri., R/o. Gosavi Galli, BasavKalyan, Tal. Basavkalyan, Dist. Bidar (Karnataka). Shri S.P. Deshmukh, Advocate for the appellant. Shri Girish Thigale, Advocate for the respondent. CORAM : P.R. BORKAR,J. RESERVED ON : 22.07.2009 DELIVERED ON : 27.07.2009 J U D G M E N T :- 1. This is an appeal from order filed by the original respondent being aggrieved by the order passed by the learned III Adhoc Additional District Judge, Beed in Misc. Civil Application No. 79 of 2002 decided on 20.09.2005, whereby the respondent Jagmohan was appointed as guardian of the person ( 2 ) of movable properties and bungalow at Latur belonging to minors Siddheshwar and Shruti, and appointed present appellant Gorakhnath as guardian of minors in respect of landed properties bearing No. 61, 196, 198, 239, 243, 200 and the house property at Ghargaon, Tal. & Dist. Beed. 2. It is no more disputed that Siddheshwar and Shruti were minor son and minor daughter respectively of deceased Shriram Gorakhnath Giri and his wife Hema. Present appellant is father of Shriram; whereas respondent Jagmohan is father of Hema. Thus the appellant is paternal grand-father and the respondent is maternal grand-father of minors Siddheshwar and Shruti. In an accident that took place on 03.07.2001, both Shriram and Hema, who were parents of the minor, had expired. The minors were injured and were hospitalized at Solapur for short period. Present respondent Jagmohan filed application for his appointment as guardian of minors. He stated that after death of Shriram and Hema in the car accident, the minors were hospitalized at Solapur and thereafter he had taken them to his house. They are residing with him. He had admitted them in Marathi medium school at Aurad Shahajani and so he may be appointed as guardian. ( 3 ) 3. It is not disputed that deceased Shriram was posted as Assistant Sub-Inspector, at Tuljapur Police Station. After his death amount of G.P.F and gratuity is received. Admittedly, amount of Rs. 4 lakhs was received by present appellant Gorakhnath, on behalf of the minors. It is also not disputed that deceased Shriram had fixed deposits in the Bank of Maharashtra, Branch – Beed; District Central Co-operative Bank, Branch – Zilla Parishad; Beed, Purnawadi Nagari Sahakari Bank Beed, Branch – Chousala; and lockers in Purnawadi Nagari Sahakari Bank – Branch Chousala and in Syndicate Bank at Basavkalyan. It is also not disputed that after death, the police officers in presence of paternal and maternal uncles of the minors and other persons took search of the quarters in which deceased Shriram and Hema were residing and a panchanama was drawn of the cash and ornaments found in the house. Said panchanama is at Exh.81, which is at page Nos. 177 to 183 of the record and proceedings. As per said panchanama, amount of Rs. 1,00,512/- and various gold and silver ornaments were found. Their description is given in the panchanama. Cash and ornaments were handed over to M.L.A. Shri Vinayakrao Mete, who is examined at R.W.3 at ( 4 ) Exh.106. It is further admitted fact that Shriram had constructed house Nos. 2479/1 & 2479/2, situated at Latur. He also had property at Ghargaon, Tal. & Dist. Beed, which was ancestral property. 4. The application for appointment of present respondent Jagmohan as guardian was vehemently opposed by the present appellant and he filed written statement at Exh.24. 5. The point which arises for my consideration in this appeal is as follows:- Whether the order passed by the learned Additional District Judge, appointing appellant – Gorakhnath as guardian of the immovable properties situated at Ghargaon, Tal. & Dist. Beed; and present respondent Jagmohan as guardian of person and other properties of minors needs interference in this appeal? 6. The Trial Court considered all the aspects in detail. It has given several reasons for appointing present respondent Jagmohan as guardian of minors. It is pointed out that though present appellant claimed that he had obtained admissions for minors in a school at Latur and though police personnels at Tuljapur as well as Latur had made serious ( 5 ) efforts for getting admission of minors in School at Latur; it is found that minors never attended the school at Latur for a single day. If really the appellant’s case is that the minors were residing with him and his wife after the accident at Latur and if minors were taken away by present respondent on the pretext that his wife wanted to see minors has been true, at least for one day minors would have attended the school at Latur. It may be noted that the accident had taken place in July, 2001. Moreover it is also pointed out to me that one letter produced and proved on record at Exh.37 shows that after discharge from hospital at Solapur, minors preferred to go with present respondent Jagmohan. 7. One of the major reasons that appears to have weighed with the Trial Court is that appellant Gorakhnath had received amount of Rs. 4 lakhs from Police Department towards service benefits of deceased Shriram. He was also cultivating landed property belonging to Shriram, but not a single farthing was utilised by him for maintenance of minors since death of Shriram. As per para 22 of the Trial Court judgment it is stated by appellant Gorakhnath that he had ( 6 ) paid amount of Rs. 2 lakhs to Zumbar and Ashruba on ground that Shriram had borrowed amounts from them for construction of the bungalow at Latur. Besides bare words of appellant Gorakhnath and Zumbar, absolutely there was no independent evidence to show that Shriram had borrowed any amount or Zumbar or Ashruba. It is also noted that Zumbar was father in law of Indramohan who is another son of present appellant Gorakhnath. Zumbar though examined was unable to state the date or month of payment of Rs. 90,000/- as loan to Shriram. It was stated that Zumbar was working as a priest in Hanuman temple at Khande Pargaon, Tal. & Dist. Beed. He failed to produce bank pass book. The Trial Court who had opportunity to see Zumbar observed that he had no source of income and disbelieved the case that Zumbar had withdrawn amount of Rs. 50,000/- from his bank account and collected Rs. 40,000/- from his brother to give loan of Rs. 90,000/- to Shriram. The brother of Zumbar is not examined. Similarly another person Ashruba who is said to have borrowed amount of about Rs. 90,000/- is not examined. It is observed that deceased Shriram was well to do person. Considering the facts that there is safe deposit vault of deceased Shriram at Syndicate Bank at Basavkalyan and locker at Chausala branch of a local ( 7 ) bank; and that after his death, cash amount of more than Rs. 1,00,000/-, golden and silver ornaments were found at his residential quarters, there was no reason for Shriram to borrow money from Ashruba and Zumbar. 8. At the time of passing of interim orders pending this appeal, certain development have taken place. The matter was heard on 14.12.2005, 20.10.2005 and 05.10.2006. On 05.10.2006 the present appellant offered to deposit amount of Rs. 2 lakhs in installments within three years and though only 70 days remained for completion of three years, not a single pie out of amount of Rs. 2 lakhs is deposited. As per order dated 05.10.2006 to show his bonafides and to meet allegations made in para 22 of the judgment the appellant had offered suo-moto to deposit Rs. 2 lakhs in installments within a period of three years from 05.10.2006. So, this inaction to deposit any instalment since the date of order is vehemently argued by the learned advocate for the appellant. It is argued that the interests of the appellant are in conflict with interests of minors. 9. It is also stated by the Trial Court that though ( 8 ) period of four years was over, not even once the appellant went to meet the minors at Basavkalyan where minors have been residing with the respondent. 10. It is also noted in para 23 by the learned Trial Court that not only alleged payments of Rs. 2 lakhs to Ashruba and Zumbar were suspicious, but the conduct on the part of the appellant and his wife Gayabai who have been receiving interest on fixed deposits in the name of minors, not to pay single paisa towards their maintenance, education expenses etc. is worth consideration. 11. On the other hand respondent Jagmohan has taken endeavor to provide good education and maintenance to minors. Minors are residing with their maternal aunt at Aurad Shahajani and all expenses have been borne by the respondent Jagmohan. It is also noted that if really there was some love towards minors, the appellant and members of his family would have often gone to meet minors at Basavkalyan 12. In para 27 it is observed that Shruti was 15 years of age and Siddheshwar was 12 years of age and the learned ( 9 ) Trial Court enquired with both the minors and they preferred to live with the respondent. Considering the reasons given by the Trial court it appears that it is well thought over judgment. Absolutely there is no reason to interfere with the discretion used. The discretion is properly used bearing in mind well settled principles of law regarding custody of the minors. The interests of the minors are properly looked after. 13. The learned advocate for the respondent Shri Girish Thigale relied upon the cases in Ashok Shankarrao Ghatage V/s. Mahipati Yashwant Khutale, 2006 (3) Bom.C.R.517, Shantabai Sonu Barathe V/s. Gautam Vishnu Sheller, 1996 (O) BCI 125: 1994 (2) Mh.L.J.1879, Sheila Umesh Tahilani V/s. Soli Phirozshaw Shroff and ors, 1981 Bom.C.R.822 and Ramesh Tukaram Gadhwe and ors. V/s. Sumanbai Wamanrao Gondkar, 2008 (1) Bom.C.R.634, Ralph Clive Cabral V/s. Rilley Dias and anr., 2004 (6) Bom.C.R.332, Shakuntala T. Sonawane V/s. Nardnera A. Khaire, 2003 (5) Bom.C.R.182. 14. Adv. Shri S.P. Deshmukh for the appellant requested this Court to call the appellant, the respondent and the ( 10 ) children and try to bring together the families in the interest of the children. However, the learned advocate for the respondent stated that the respondent and Shruti (who has since attained majority) are about to file suit against the appellant for accounts and mesne profits within 2-3 days. After considering the submissions of both sides, in my opinion, no purpose will be served by calling the parties. Their relations have become too strained. 15. After carefully considering the order passed by the Trial Court, in my opinion, the order is well reasoned and needs no interference. In view of this, this appeal is dismissed and parties are directed to bear their own costs. [P.R. BORKAR,J.] snk/2009/JUN09/ao112.05