John Beaumont, Kt., C.J.
1. This is an appeal from an order made by the District Judge of Bijapur in an application under Section 7 of the Guardians and Wards Act of 1890.
2. The material facts are that the minor girl, in respect of whom this application was made, was born on October 28, 1937, and the mother died on November 3. The mother had gone for delivery to the house of her elder sister, who is the applicant in these proceedings, and after the birth of the child the sister kept and looked after it. In February, 1938, the father of the child filed a regular, suit in the Court of the Subordinate Judge of Bagalkot, which is in the Bijapur District, asking for the custody of the child, and in July, 1938, the present application was launched under Section 7 of the Guardians and Wards Act, in the Court of the District Judge of Bijapur, by the aunt who had the actual custody of the child. She asks to be appointed guardian of the child, and to be confirmed in the custody. When the application first came before the Court, it stood over pending the result of the civil suit. The civil suit was decided on December 21, 1938. The Subordinate Judge dismissed the suit on the ground that, having regard to the tender age of the child, it was better left with the aunt, but he stated that the father could make a further application for custody in the future. After that decision, the application under the Guardians and Wards Act came before the learned District Judge of Bijapur on January 18, 1939, and he then directed that the applicant should remain as guardian of the person of the minor till it became two years old. The father was appointed guardian of the property of the minor. After the child became two years of age, the learned Judge made an order that the father should be declared the guardian of the minor, and directed the aunt to hand over the minor to him forthwith. I think it clear that before making any order the District Judge ought to have insisted on evidence, showing that the order was in the best interests of the child. He seems to have thought that he had actually made an order in advance in January that the minor was to be handed over to her father when she became two years of age. But he was not, competent to make such order. He would be bound to consider, at the time when the order was to take effect, whether the father was the proper person to have the custody of the child, However, apart from that, the contention of the appellant is that the Court had no jurisdiction to make the order.
3. Section 7 of the Guardians and Wards Act, under which the application was made, enables the Court to appoint a guardian of the person or property of the minor. But Section 19 provides that the Court has no power to appoint a guardian of the person of a minor whose father is living and is not, in the opinion of the Court, unfit to be guardian of the person of the minor. As that was the position in this case, the learned Judge could not appoint the aunt as guardian; all he could do was to dismiss her application, so far as it related to guardianship. Custody is dealt with in Section 25, which provides that if a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return.
4. It was held by a bench of this Court in Achratlal Jekisandas v. Chimmlal Parbhudas (1916) I.L.R. 40 Bom. 600. that that section does not apply, if the ward has never been in the custody of the guardian, which is the case here, and I roust confess that I do not see any answer to that. The words are 'If a ward leaves or is removed from the custody of a guardian'. Custody must there mean actual custody; if it means constructive custody, and it be said that the ward is always in the constructive custody of the legal guardian, then the answer is that there is no occasion for making an order, because it has not left such constructive custody. In my opinion custody in the section means actual custody, and it cannot be said that a minor who has never been in the custody of his guardian has either left or been removed from such custody. In Ibrahim Nachi v. Ibrahim Sahib (1915) I.L.R. 39 Mad. 608. a bench of the Madras High Court differed from that view and held that in order to give effect to what, it considered, must have been the intention of the Legislature, Section 25 could be construed as giving power to the Court to make an order that the guardian should have the custody of the minor in all cases. There are other cases to the same effect, though not in this Court. I should be glad to hold that the statute confers such a power upon the Court, but I cannot extract such a meaning from the language which the Legislature has used. It' is contended by the respondent that the Court must have power under the Guardians and Wards Act to make an order for custody, because by a decision of the Privy Council, Besant v. Naraynich it has been held that no mofussil Court can make an order for custody, except under the Guardians and Wards Act. A full bench of the Madras High Court in Sathi v. Ramendi Pandaran (1919) I.L.R. 42 Mad. 647, F.B. no doubt, held that that is the effect of the Privy Council decision; but, in my view, the decision of the Privy Council did not go as far as the Madras High Court supposed. In the case before the Privy Council the suit had been filed by the father in the District Court of Chingleput to have it declared that he was entitled to the guardianship and custody of his sons, and, no doubt, the Privy Council held in that case that the District Court, in which the suit had been instituted, had no jurisdiction over the infants except such jurisdiction as was conferred by the Guardians and Wards Act of 1890, and that, having regard to the terms of Section 9, the Court had no jurisdiction over the infants in question who were not residents within its jurisdiction. But the Privy Council was considering a suit filed in the District Court, which is the Court referred to under the Guardians and Wards Act; and the suit dealt with a matter covered by the Act, because the minors had left the custody of their guardian. In my opinion, the decision has no application to a suit filed in the Court of a Subordinate Judge asking for relief not covered by the Act. As at present advised, I am not prepared to accept the view that a Subordinate Court would not have jurisdiction to entertain a suit by the father of a minor to have custody of that minor handed over to him. It was not apparently suggested that the Subordinate Court of Bagalkot had no such jurisdiction in the suit which the father previously filed. I think the learned Judge in that case directed his attention to the right question, viz., the welfare of the minor. However, so far as this appeal is concerned, I think it must be allowed, because, in my opinion, the decision in Achratlal Jekisandas v. Chimanlal Parbhudas is right, and in any case it binds us, and we must hold that there was no jurisdiction in the District Judge to direct the custody of the minor to be handed over to the father in these proceedings under the Guardians and Wards Act.
5. The appeal, therefore, must be allowed. Costs of the appeal to be paid by the respondent.