1. This is an appeal from an order which has been passed by the District Judge of Benares in respect of an application for guardianship. One Pandit Devi Prasad died on 25th June 1931, leaving a minor son by name Sita Ram. On 19th May 1931 Pandit Devi Prasad had executed a will, and it is said that under that will he appointed the four persons hereinafter named as the guardians of Sita Ram: Ganeshji Pande, Devi Pande, Bish Nath, Suraj Prasad Pathak. Suraj Prasad Pathak is dead; but the other three abovenamed persons applied to the District Judge for their appointment as guardians of Sita Ram on the basis of Pandit Devi Prasad's will dated 19th May 1931. The application was opposed by Mt. Bhagirathi, who was the sister of Sita Ram; and her husband Trilochan put in an application before the Court for his own appointment as guardian. Mt. Bhagirathi is now dead and learned Counsel for Trilochan informs us that his client has no longer any interest in this matter. The District Judge did not go into the merits of the application of Ganeshi Pande, Devi Pande and Bish Nath, but has dismissed their application in limine on the ground that it could not be entertained unless and until probate of the will was obtained. In Pathan Ali v. Bai Panibai (1895) 19 Bom 832, a Bench of the Bombay High Court held that it is not incumbent on a person who has been appointed guardian of a minor under a will to take out probate as a condition precedent to his obtaining a certificate of guardianship under Act 7l of 1890. That decision was followed by a Bench of the Calcutta High Court in Sarala Sundari Debi v. Hazari Dasi Debi 1916 42 Cal 953, where it was held that in an application for the appointment of a guardian of a minor the Court is bound to consider a will although probate has not been granted. The judgment contains the following observation:
The fact that there is a contest as to the validity of the will may induce the Court to exercise its discretion one way or the other, as for instance it may probably defer deciding on the question of guardianship until the question of probate has been determined. But it is not open to the Court to say that it will refuse to take notice of the will.
2. It is not suggested before us that there is any contest as regards the validity of Pandit Devi Prasad's will, and we can find nothing in the Act to justify the view which the learned Judge of the Court below has taken. There is no reported authority of this Court on the subject; but we are in full agreement with the view which has been expressed by the Bombay High Court and the Calcutta High Court in the cases above referred to and we accordingly allow this appeal; and set aside the order of the Court below and we remand the case to that Court for enquiry and decision according to law in the light of the observation which we have made above.