1. This is an appeal under the Guardians and Wards Act filed under circumstances which are somewhat peculiar. The parents of the minors are both alive. The brother of the minors applied for being appointed guardian of their person and property on the ground that the father is not of sound mind. The tower Court granted the application and the person appointed guardian of the father by Court has filed the appeal.
2. Admittedly the father and his sons constitute a joint Hindu family, the properties, belonging to which are not disclosed in the schedule to the petition filed in the lower Court. Only the cash deposits some of which happen to be in names of the minors are specified. It is not clear whether these are the only properties admitted by the applicant to be of the minors and as to how these proceedings can be resorted to if the amounts are the property of the joint family.
Under the Act a guardian can be appointed with respect to properties of minors, capable of being managed. When the minors are members of an undivided family possessed of property, the person seeking appointment as guardian cannot claim any portion thereof as belonging to them for the purpose of management although the minors are entitled to shares under the Hindu Law. Till the shares arc defined and separated, the family as at whole and not any one to the exclusion of others, has the right to be in possession of such property.
3. The father is himself entitled to a share and the guardian acting on his behalf raises the objection, not without force, that the order has the effect of affecting rights of other members of the family and giving petitioner an unwarranted advantage. So long back as 1903, in -- Gharib Ullah v. Khalak Singh', 25 All 407 (A) it was laid down by the Privy Council that
'a guardian of the property of an infant cannot properly be appointed in respect of the infant's interest in the property of an undivided Mitakshsra family ..... such interest not being individual property and therefore not property with which a guardian if appointed would have anything to do'.
Even prior to this, a Full Bench of the Bombay High Court held in -- 'Virupakshappa v. Nilgangava, 19 Bom 309 (FB) (B), that when a minor is not possessed of separate property, there can be no appointment of a guardian under the Act for management of his undivided share in family property. The appointment of a guardian of the person of the minor was, however, considered to be possible. Since the mother in the present case is not alleged to be unfit or unable to take care of her minor children, there is no need to appoint the respondent as guardian of the person of the minors.
4. Having regard to these and the fact that the only possible effect of the order of the lower Court is to enable the petitioner to draw moneys belonging to the minor brothers in deposit and not to promote their interests in other ways, the order of the lower Court cannot be upheld. It is therefore set aside. Parties will bear their own costs in this appeal.
5. Appeal allowed.