Lallubhai Shah, Kt., Ag. C.J.
1. The facts which have given rise to this appeal are these. It appears that one Nagava Gurlingaya Nandi made an application under Act VIII of 1890 to be appointed a guardian of the person of her three minor children, one son Shivlingaya, and two daughters Gangava and Shivlingaya. Notices of this application were issued, but apparently no notice of it was given to the Collector at the time. On January 5, 1922, the learned District Judge made an order appointing her guardian of the person of the minor.
2. Thereafter, on February 11, 1922, the Collector wrote to the District Judge a letter bringing to his notice certain facts and praying for a cancellation of the order of January 5. It appears from that letter that Dundaya had applied under Section 9 of the Court of Wards Act I of 1905 that the estate should be taken charge of by the Court of Wards. The Notification in the Government Gazette of 1920, Part I, p. 690, shows that Dundaya, the grand-father of these minor children, and Durlingaya the father of these children were declared landholders for the purposes of the Bombay Court of Wards Act under the powers conferred upon Government by Clause (b)(ii) of Section 2 of that Act on account of the extent and value of their interest in land.
3. It also appears from the Notification published in the Bombay Government Gazette of 1920, Part I, p. 2680, that the Court of Wards assumed superintendence of the property of Dundaya Shivlingaya Nandi, and that the assumption of the superintendence of the said property wan sanctioned by His Excellency the Governor in Council under Sections 4 and 9 of the Act.
4. It also appears in the letter of the Collector that under Section 5, Sub-section (1), Clause (c)(i), of the Court of Wards Act, Durlingaya or Gurlingaya was declared by the District Court to be incapable of managing or unfitted to manage his own property owing to mental defect or infirmity. As a fact, at the date when the mother of these minors was appointed a guardian of the person, the property was under the superintendence of the Court of Wards and the minors were staying with Dundaya.
5. After this letter was received, the learned District Judge heard the pleaders for the parties and, on February 25, 1922, cancelled the order appointing the mother as a guardian of the person of the minors on the ground that under Section 19(c) of the Guardians and Wards Act the Court had no power to make the appointment of the guardian of the person of the minors under the circumstances of this case.
6. Before considering whether Section 19(c) of the Guardians and Wards Act applies to the facts of this case, it must be noted that it is not suggested in this case that under Section 11 of the Court of Wards Act with the previous sanction of His Excellency the Governor in Council the Court of Wards has assumed the superintendence of the person of any of these minors. In fact the estate of Dundaya and Gurlingaya has been taken by the Court of Wards under its superintendence with the sanction of His Excellency the Governor in Council; but the Court of Wards has not assumed superintendence over the person of either of these, and the provisions of Section 11 of the Court of Wards Act could not apply to either of these persons, namely, Dundaya or Gurlingaya, because neither of them falls under Clause (a) or (d) of Section 5 of the Court of Wards Act. But apart from that consideration it is clear that so far as the present minors are concerned there is nothing to show that the superintendence over their person has bean assumed by the Court of Wards. Section 19 of the Guardians and Wards Act provides, among other things, that nothing in this Chapter (i.e. Chapter II of the Act) shall authorise the Court to appoint or declare a guardian of the person of a minor whose property is under the superintendence of the Court of Wards competent to appoint a guardian of the person of the minor.
7. In the present case it is doubtful to my mind whether the property of the minors could be said to be under the superintendence of the Court of Wards. The property which is under the superintendence of the Court of Wards in the present ease is the property of Dundaya and his eon Gurlingaya.
8. Assuming, however, without admitting, that the property of the minor son may be said to be under the superintendence of the Court of Wards it is clear that the Court of Wards in this case was not competent to appoint a guardian of the person of the minor. Section 22 of the Court of Wards Act provides that the Court of Wards may appoint guardians for the care of persons of Government wards whose persons are, for the time being, under its superintendence. Now, as I have already pointed out, it is not suggested anywhere in the letter that the person of the minors in question is under the superintendence of the Court of Wards. Therefore, the Court of Wards would not be competent to appoint a guardian of the person of these minors; and Section 19(c) of the Guardians and Wards Act would C not apply to the facts of this case. It was open to the District Court under the circumstances to consider the question of appointing a guardian of the person of the minors.
9. The order is based upon the ground that the Court would have no power to appoint a guardian of the person of these minors; and the matter has not been considered on the merits in a proper manner. The mother was appointed the guardian of the person of her children, and the Collector has objected to it, on the ground that 'the mother Nagava who has now been trying to become their guardian took no care of them, and has been residing with her father in a village for some years past. It was owing to the ill-designs of her father that Dundaya sought the intervention of the Court of Wards.' In brief the contention of the Collector appears to have been that it was not for the welfare of the minors under the circumstances that the mother should be appointed a guardian of their person. This matter, however, requires to be considered on the merits, and any allegation against the mother as to her conduct with regard to the children, must be proved like any other fact. In determining the question regard must be had, as required by the Guardians and Wards Act, to the welfare of the minors. The learned Judge appears to have acted upon the allegation that Nagava, according to the Collector, was not well-behaved, and did not take care of the minors when they were with her, as alleged by the Collector. In any case it is necessary for the District Judge to consider whether a case is made oat to deprive (a) the son and (b) the daughters of the care of their mother. I am of opinion that as the learned Judge has based his conclusion upon his view of Section 19(c) of the Guardians and Wards Act, the matter must be remanded to the District Court for disposal on the merits.
10. I do not desire to express any opinion whether under the circumstances the omission to give any notice to the Collector of the first application made by the mother would have any effect upon the order made by the District Judge, and whether notice under Section 11, Sub-section 2 of the Guardians and Wards Act to the Collector was necessary in an application for the appointment of a guardian only of the person of the minor, nor do I consider it necessary to express any opinion whether notice to the Collector was necessary under the rules framed by this Court under the Guardians and Wards Act.
11. I would set aside the order made by the District Judge canceling the order made by him on January 5, 1922, and remand the case for disposal according to law.
12. Costs of the appeal to come out of the estate.
13. I agree. I should like, however, to add a few words. The object of the legislature in enacting Section 19(c) of the Guardians and Wards Act appears to be to avoid a possible conflict of jurisdictions. If there is a Court of Wards competent to appoint a guardian of the person of a minor, then the jurisdiction of the District Court is to that extent ousted. But the competency of the Court of Wards in this Presidency depends upon Section 22 of the Bombay Court of Wards Act, and if that section be referred to, it clearly gives power to the Court of Wards to appoint a guardian of the person only in those oases where the Court of Wards has assumed superintendence of the person, and that is not the case here. Therefore, the District Judge was, in my opinion, wrong in relying upon Section 19(c) of the Guardians and Wards Act as having any application to the matter before him.
14. As regards the report made by the Collector, I would say this that I do not see how that report can be treated as evidence in the case. It is only when the Court calls upon the Collector for a report under Section 40 of the Guardians and Wards Act, that it is open to the Court to treat the report as evidence, and that is not what was done in the present case.
15. I agree, therefore, that the grounds on which the order of the District Judge of February 25, 1922, is based, are not such as can be sustained, and I, therefore, concur in holding that the matter must be sent back to him for a legal decision in accordance with what has been said in the judgment of this Court. I would add as to the other points discussed by the learned Chief Justice in his judgment, that I agree with the opinions expressed there on those points.