Can elder brother be guardian of younger brother?

PLJ 2012 Lahore 81
[Bahawalpur Bench Bahawalpur]

Present: Abdus Sattar Asghar, J.

MUHAMMAD TAHIR--Petitioner

versus

ADDITIONAL DISTRICT JUDGE-II, BAHAWALNAGAR and 5 others--Respondents

W.P. No. 3269 of 2011, decided on 16.6.2011.

Guardians and Wards Act, 1890 (VIII of 1890)--

----Ss. 43 & 47(1)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Efficacious remedy of appeal was available--Question of maintainability of writ petition--Petitioner was appointed as guardian of her niece after death of her father--Brother of minor filed an application for cancellation of guardianship--In view of statements of surety, the surety was discharged from his liability--Guardian at fault being aggrieved assailed it in revision petition before Distt. Judge, which was dismissed--Challenge to--It was admitted fact that financial assets of minor were given in hands of petitioner as a sacred trust on his appointment as guardian of minor--Application of brother of minor for cancellation of guardianship certificate was pending adjudication before Guardian Judge--Proceeding were recorded on voluntary statement of surety and petitioner--Held: Order passed in terms of S. 43 of Guardians and Wards Act, is appealable u/S. 47(1) of Act, 1890--Since efficacious remedy of appeal was available to petitioner if aggrieved of impugned order, therefore writ petition u/Art. 199 of Constitution was not maintainable.          [Pp. 83 & 84] A, B & C

Syed Muhammad Arfah Sheraz Bokhari, Advocate for Petitioner.

Date of hearing: 16.6.2011.

Order

Brief facts leading to this petition are that Muhammad Tahir petitioner was appointed as guardian of her niece Mst. Jannat Firdous by the learned Guardian Judge,Bahawalnagar, vide order dated 04.7.2007 after the death of her father Zafar Iqbal. Muhammad Iqbal Respondent No. 3 brother of minor Mst. Jannat Firdous filed an application for cancellation of guardianship of the petitioner Muhammad Tahir before the learned Guardian Judge, Bahawalnagar on the ground that the petitioner has misappropriated the amounts received through pension, benevolent fund, etc. of the deceased father of the minor instead of expending it for the welfare of the minor.

2.  Present petitioner contested the said application by filing the written reply wherein he denied the allegation of misappropriation of the minor's financial assets and also leveled cross allegation of fraud and cheating upon Muhammad Iqbal brother of minor Mst. Jannat Firdous. The learned Guardian Judge after going through the pleadings of the parties summoned Muhammad Tahir guardian, Muhammad Yaqoob surety to the guardian as well as minor Mst. Jannat Firdous along with the original guardianship certificate in the Court on 01.3.2011. On the said date i.e. 01.3.2011, Muhammad Yaqoob surety and Muhammad Tahir guardian (present petitioner) got recorded their separate statements before the learned Guardian Judge, Bahawalnagar. Muhammad Yaqoob surety stated that Muhammad Tahir guardian had given him Rs. 30,000/-, which he is ready to deposit in the Court and that he be relieved of the surety bond/liability. Simultaneously, Muhammad Tahir guardian made the statement that Muhammad Yaqoob surety had deposited Rs. 30,000/- with the Civil Nazir of the Court and that he is ready to return remaining amount of Rs. 1,42,000/- through monthly installments and for this purpose he is ready to produce fresh surety. The learned Guardian Judge in the light of the above referred statements of the petitioner (guardian at fault) and the surety Muhammad Yaqoob has passed the following order on 01.3.2011:

"Statements of surety and Respondent No. 01 (guardian at fault), recorded. In view of the statements, the surety Muhammad Yaqoob is discharged from his liability. Surety Muhammad Yaqoob has deposited Rs. 30,000/- with the Civil Nazir of this Court. Mst. Jannat Firdous can withdraw this amount upon submission of application. As per order dated 26.02.2011, to the extent of remaining amount of Rs. 1,42,000/-, the Respondent No. 01 is directed to deposit the same in two equal installments, which shall be paid on 5th of every month. Respondent be sent to District Jail, Bahawalnagar and be produced before the Court on 14.03.2011."

3.  Muhammad Tahir petitioner (guardian at fault) being aggrieved of the order dated 01.3.2011 assailed it in revision petition dated 07.4.2011 before the learned District Judge, Bahawalnagar, which came up for hearing on 13.5.2011 before the learned Additional District Judge, Bahawalnagar. Learned Additional District Judge after hearing the counsel for the petitioner dismissed the revision petition vide order dated 13.5.2011.

4.  Muhammad Tahir petitioner (guardian at fault) through instant writ petition has challenged the vires of both the impugned orders dated 01.3.2011 passed by learned Guardian Judge, Bahawalnagar and order dated 13.5.2011 passed by learned Additional District Judge, Bahawalnagar, on the grounds that the said orders are illegal, against law and facts, arbitrary and liable to be set aside.

5.  I have given patient hearing to learned counsel for the petitioner and carefully gone through the record.

6.  It is an admitted fact that the financial assets of the minor were given in the hands of Muhammad Tahir petitioner as a sacred trust on his appointment as guardian of the minor. In this regard I have the honour to cite English translation of the Verse Nos.2,6 & 10 of Surah An-Nisah, Chapter No. 4, of the Holy Quran, which reads below:--

Verse No. 2.    "Give unto orphans their wealth. Exchange not the good for the bad (in your management thereof) nor absorb their wealth into your own wealth. Lo! That would be a great sin."

Verse No. 6     "Prove orphans till they reach the marriageable age; then, if ye find them of sound judgment, deliver over unto them their fortune; and devour it not by squandering and in haste lest they should grow up. Whose (of the guardians) is rich, let him abstain generously (from taking of the property of orphans); and whose is poor let him take thereof in reason (for his guardianship). And when ye deliver up their fortune unto orphans, have (the transaction) witnessed in their presence. Allahsufficeth as a Reckoner."

Verse No. 10.  "Lo! Those who devour the wealth of orphans wrongfully, they do but swallow fire into their bellies, and they will be exposed to burning flame."

7.  At this juncture it will not be out of place to refer that vide Article 2-A of the Constitution of Islamic Republic of Pakistan, the principles and provisions positioned in the Objectives Resolution have been made substantive part of the Constitution and shall have effect accordingly. Clause-lV of the Objections Resolution reads as under:

"Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and the Sunnah;"

Needless to mention that as a Muslim we must adhere to the ordains of Holy Quran in letter and spirit as practiced by the Holy Prophet Muhammad (SAW) to ensure dispensation of justice to the individuals as well as to the society.

8.  It is pertinent to mention that application of Muhammad Iqbal brother of the minor Mst. Jannat Firdous for cancellation of guardianship certificate of Muhammad Tahirpetitioner is pending adjudication before the learned Guardian Judge, Bahawalnagar. The proceedings dated 01.3.2011 were recorded by learned Guardian Judge on the voluntary statements of Muhammad Yaqoob surety and Muhammad Tahir petitioner (guardian at fault). In the light of their statements unauthorized payment of Rs. 30,000/- by the guardian to Muhammad Yaqoob surety prima facie makes out a case of misappropriation.

9.  In such circumstances, provisions of Section 43 of the Guardians and Wards Act, 1890 are attracted which reads below:

"43. Orders for regulating conduct or proceedings of guardians, and enforcement of those orders. (1) The Court may, on the application of any person interested or of its own motion, make an order regulating the conduct or proceedings of any guardian appointed or declared by the Court."

In the light of Section 43 of the Act (ibid) I do not find any illegality or unlawful exercise of jurisdiction by the learned Guardian Judge. Learned counsel for the petitioner in his arguments has not been able to point out any illegality or unlawful exercise of jurisdiction by the learned Guardian Judge.

10.  At this juncture it is pertinent to mention that an order passed in terms of Section 43 of the Act ibid is appealable under Section 47(i) of the Act ibid. Since efficacious remedy of appeal is available to the petitioner if aggrieved of the impugned order, therefore, instant writ petition under Article 199 of the Constitution is not maintainable at all and is dismissed in limine.

(R.A.)  Petition dismissed.