JUDGMENT
P.K. Mohanty, J.
1. This appeal is directed against the order of the learned District Judge, Cuttack in a petition under Section 8 of the Guardian and Wards Act. 1890.
2. A petition under Section 8 of the Guardians and Wards Act, 1890 (hereinafter referred to as “the Act”) was filed by the respondent Anadi Charan Sahoo, the natural father of minor son Ajoya Kumar Sahoo for being appointed as a guardian of the said minor. The prayer was also made for a declaration that the natural father may be declared as the father guardian of Sri Ajoya Kumar Sahoo and the petitioner may be allowed to withdraw the fixed deposit, if necessary for the benefit of minor and the United Commercial Bank, Madhuban Hat Branch may be directed to correct the entries in their record by incorporating Sri Ajoya Kumar Sahoo. son of Anadi Charan Sahoo of Village Kalan. P. S. Dharmasala. Dist. Cuttack. A further prayer hud been made that the said United Commercial Bank be directed not to allow Sri Prahallad Sahoo to encash or to transfer the fixed deposit till the disposal of the petition.
3. The short facts leading to the aforesaid prayer was that Ajoya Kumar Sahu lives with his father and his mother who is also alive. On 17-9-1985 the petitioner had entrusted Sri Prahallad Sahu son of Gajendra Sahu, the maternal uncle of the minor, to make a fixed deposit amounting to Rs. 25,000/- in the name of his minor son with the United Commercial Bank. Madhuban Hat Branch. But even though the money was handed over to Sri Prahallad Sahoo, till date he has not yet handed over deposit receipt from the Bank. On 21-8-87, when the petitioner was enquiring about the fixed deposit in the United Commercial Bank, he came to know that Rs. 25,000/- has been deposited in the name of Ajoya Kumar Sahoo, minor but in record, the father’s name has been shown as Prahallad Sahu of village Kalan and there is no such person Prahallad Sahu in village Kalan. It is further stated that Sri Prahallad Sahu of village Sulia. P. Kalan. P. S. Dharmasala was unmarried as on 17-9-1985. He got married only on 8-6-1987 to Smt. Bhanumati Sahu of village Chandipur. It is alleged that the petitioner was not aware of the ill motive of Sri Prahallad Sahoo till 21 -8-1987 since Prahallad Sahu is the maternal uncle of his minor son as well as his brother-in-law. Thus, it was claimed that since the petitioner is the natural father of the minor and his natural mother is living with the petitioner, the petitioner is entitled to be appointed as a guardian of the minor, and for the benefit of the minor, it is necessary that the petitioner be appointed as a guardian.
4. The opposite party Prahallad Sahoo. filed his objection challenging the maintainability of the petitioner as well as the petition having been grossly time barred and on other grounds. It was stated, inter alia, that the present minor Ajoya Kumar Sahoo is not the one. in whose name the opposite party has kept the deposit. It is further stated that Ajoya Kumar Sahoo is not the one. whom the opposite party represents and his natural guardian in the disputed fixed deposit of Rs. 25,000/- and that the petition has been instituted by the petitioner to satisfy his grudge because of misunderstanding in business transactions. The allegations of the petitioner regarding handing over of Rs. 25,000/- for fixed deposit in the name of his son Ajoya Kumar Sahoo etc. was stoutly denied as false and fabricated.
5. The learned District Judge, in his order dated 29-3-1993 in Misc. Case No. 34 of 1992 on hearing both the parties and on agreement, passed the agreed order that if the money stands now deposited in the name of minor Ajoya Kumar Sahoo. they shall have no objection, but the amount shall not be disbursed either to the petitioner or to the opposite party. They had. further agreed that the amount lying in deposit should to renewed from its due date and shall remain as deposit till Ajoya Kumar Sahoo attains majority. Since the real beneficiary is Ajoya Kumar Sahoo. the minor son, the learned District Judge agreed with the above agreement and directed that the amount should remain in deposit till the minor attains majority. After attaining majority, Ajoya Kumar Sahoo, who is the natural son of the petitioner can claim refund of the same, with all accumulated money flowing therefrom. The learned District Judge directed the United Commercial Bank, Madhuban Branch that the amount of Rs. 50,612.40 paise should be renewed from its due date i.e. 17th March. 1992 for a further period of ten years. A direction was issued to the Bank not to disburse the said amount to anyone else except the minor Ajoya Kumar Sahoo after attaining his majority.
6. Heard learned counsel for the parties. The contention of Sri P. K. Bhuyan. learned counsel for the appellant is that the learned District Judge having not followed the provisions of Section 13 of the Act. The order is, not sustainable in law. Section 13 of the Act contemplates that on the date fixed for the hearing ot the application, or as soon afterwards as may be. the Court shall hear such evidence as may be adduced in support of or in opposition to the application. Admittedly, no evidence having been adduced, the question of hearing such evidence by the Court below did not arise inasmuch as the order was passed on agreement and as such the contention of the learned counsel has to be rejeeted.
7. The next submission of the learned counsel is that the Court below should not have passed an order on the basis of any compromise of the parties in any circumstances in the instant case, real issue in controversy being whether the fixed deposit in the name of Ajoya Kumar Sahoo is the real son of the respondent or not. The contention has to be rejected outright. The opposite party-appellant having agreed for an order that the fixed deposit shall not be withdrawn by any of the parties and the same can only be withdrawn by the minor Ajoya Kumar Sahu. on attaining majority, the order cannot be said to be not in the interest of the minor nor the appellant can have a greivance for such an order. In any event, this is not the appellant’s case that he had never agreed to such an order and the order of the learned Court that he had agreed to such an order is not correct and an error of record, therefore the submission that the learned Court could not have passed such an order is misconceived.
8. Section 7 of the Act reads thus :
“7. Power of the Court to make order as to guardianship:- (1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made –
(a) appointing a guardian of his person or property, or both, or
(b) declaring a person to be such a guardian the Court may make an order accordingly.
(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.
(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.
Section 8 of the Act contemplates that an order shall not be passed under Section 7 except on the application of persons as mentioned therein. Thus, the paramount consideration for appointment of a guardian being the welfare of the minor, the order of the learned District Judge that none, of the parties would be entitled to withdraw the fixed deposit except the minor Ajoya Kumar Sahoo an attaining majority cannot be said to be an order contrary to the mandate of law, to be more specific, against the interest of welfare of the minor. The bone of contention appears to be the fixed deposit of Rs. 25,000/-made in the name of minor Ajoya and who would operate the said amount and enjoy the benefits but not who would look after and protect the interest of the minor son.
9. Father being a natural guardian of a Hindu minor under the personal law, the application under Section 8 of the Act for declaring him as a guardian in strict sense is misconceived, inasmuch as the purpose of the application appears to be only in respect of the fixed deposit in the minor’s name and not otherwise for the benefit and welfare of the minor son. However, the order of the learned District Judge on agreement of parties, would in my opinion, best serve the interest of the minor, since the amount in deposit is ordered to be released only when the minor attains majority and attain discretion. I, therefore, do not find any infirmity in the order passed by the Court below.
10. In any view of the matter, I do not find any cogent reason to interfere with the order passed by the learned District Judge and as such the appeal is dismissed, but in the facts and circumstances of the case, without any order as to cost.