1. The order under appeal was one appointing the respondent guardian of the properties of two minors and it is attacked here by the mother of the minors who in fact applied for her own appointment as guardian in the lower Court.
2. The circumstances can be stated shortly. The father of the minors died in 1917, leaving considerable property. Which descended, it is not disputed, to the minors. His adoptive father's brother-in-law, Venkataswani Naick, died on the 3rd of April 1918, he and the father had been intimate and had been living together, and Venkata swami Naick left a Will by which he gave the property to the two minors with a condition for defeasance in case of the death of both of them before majority in favour of the respondent. The respondent was also appointed executor of the Will and to the exact scope of that appointment we shall return. After the death of the father in December 1917 he and the petitioner (the widow), apparently were on good terms for some time, the widow even executing a power-of-attorney in his favour. Later on, after the death of Venkataswami Naick disputes arose and the petitioner repudiated the power-of-attorney. Not much has been said regarding that incident here and it does not seem to us necessary that we should decide whether, as the lower Court has held, the charges made by the petitioner against the respondent in this connection are unfounded.
3. As stated, disputes arose after April 1948, and it is possibly the origin of these disputes that the brother of the respondent, Rangaswami Naick, then propounded a gift-deed from Venkataswami Naick to him of certain properties. The gift-deed is in his name, but the body of the document the right of the respondent and another brother to the enjoyment of the properties dealt with is provided for. Rangaswami Naick applied for registration of this document and was unsuccessful both before the Sub-Registrar and the District Registrar and a suit to enforce the registration has since been brought. It has further to be noted that the parties are not agreed as to the properties, which are comprised in the estate of the minor's father, and as to the ownership or identity of the properties included in the gift deed in favour of Rangaswami Naick.
4. The minors have, it may be said, three controversies on hand at present. Their first controversy is regarding the validity of the gift deed. The respondent contends that he has so far not taken up any definite position. His interest is, however, clear and that is to support the deed and to obtain the enjoyment of the properties jointly with his brother, which the deed gives him. We have been taken through the proceedings regarding the gift deed and the construction that we place upon them is that he has endeavoured not to identify himself in any decree with the case for either side and to take advantage of whatever may be the ultimate result of the proceedings. The next controversy is as to whether particular items are included on the gift deed or in the Will. The third is as to whether particular properties belonged to the minor's father and should descend to them. The importance of the last controversy is, of course, that, if these properties come from the minor's father, they come to the minors at once in absolute right, but, if they come to them by Venkataswamt's Will, there is an estate vested in them which may be terminable in case of their death before majority. In all these controversies it seems to us that the position of the respondent is not such as will enable him to perform his duties to the minors without very great risk of his being unequal to the conflict between those duties and his interest. We do not think that it is safe to make a person guardian of the minors who is liable to the temptation involved in such a position. It has been urged by Mr. T.R. Ramachandra Aiyar on respondent's behalf that. There is no real danger to be apprehended, because, in fact, respondent's conduct has been straightforward throughout and the claims made on behalf of the minors have very little or nothing to support them.
5. At this stage of the dispute we are careful not to express any opinion, which may influence the Court which will have to decide these controversies finally in the future. We have, however, been taken through various records and evidence and it is sufficient for us at present to say that-there is on each of the points above referred to distinctly a case which has to be considered in the interest of the minors, and it may be fairly claimed on behalf of the minors that there should be some one entrusted with the duty of considering that case impartially, as respondent could not consider it, and of deciding whether steps should be taken to enforce the claim of the minors in the Courts.
6. In these circumstances, we are clear that as regards the properties which come to the minors from their father the appointment of a guardian would be in their interest and should be made, and, so far as those interests are concerned, we are also clear that such an appointment is necessary in respect of the properties left by Venkataswami Naick. In respect of these properties however, one argument has been relied on by the respondent which called for separate notice. In the Will of Venkataswami Naick, Exhibit A, the reference to the respondent is as follows: If the sons of Alagiri Naick do hot attain their majority when this Will comes into force, respondent shall, on behalf of the said minors, manage the said properties and improve and as also hand them over as well as the properties obtained by him from the Income of the same, to the said minors. I have appointed for the purpose aforesaid respondent as executor. There is also provision authorising the respondent to look after the other properties and to conduct charities.
7. On these provisions it is urged that the respondent could not be displaced from his management (if that be the proper term to use) of the properties dealt with by the Will, as (it is contended) he would inevitably be, if a different gurardian of the properties were appointed. That result does not seem to us to follow. The appointment of another guardian would not necessarily be of the properties, but would only be so far as the properties dealt with by the Will are concerned of the minor's beneficial interest in them. It would not involve the removal of the respondent from immediate possession and enjoyment. It would, in fact, as we understand it, simply invest some person with power and duty to protect the minor's interests, as in fact any next friend' appointed in particular legal proceedings (if such a thing should occur) would be invested with the duty of protecting them. It is urged that the Guardians and Wards Act nowhere contemplates the appointment of a guardian in these circumstances. But we cannot find anything in the Act to exclude it. The decision of Sir George Jessel, M.R., in Salisbury (Marquis of), In re (1875) 20 Eq. 527 has been relied on and he there expressed a doubt whether the Court had power to appoint a guardian of the estate for an infant whose estate was not in possession, the jurisdiction existing for the sole purpose of taking care of an infant's present property. The case related to the possession of an infant remainderman under English Common Law and to the guardianship which was necessary for the purpose of giving consent to the alienation of a portion of the estate, which was still in the possession of the tenants for life. We do not think that any principle is involved in that decision. Which is relevant here or can affect the right of the Court to appoint a guardian of property, although that property is reducible and has still to be reduced to such possession as it, is susceptible of. In Ashrafi Kuar v. jai Narain 6 Ind. Cas. 862. Salisbury (Marquis of); In re (1875) 20 Eq. 527 was referred to. The Court inclined to the view that it had no jurisdiction to appoint a guardian while the estate of the minor was in the actual possession of the trustees on his behalf, for the minor had no interest in the property beyond that of a beneficiary, although the trustees had been found guilty of misconduct. But with all respect we are unable to follow the reasoning in that decision, which appears to some extent to have been based on the conclusion that the appointment of a guardian would not be for the welfare of the minor. In these circumstances, we do not think that the terms of the reference to respondent in Venkataswami Naick's Will justify any distinction between the guardianship of that portion of the property and the guardianship of the rest.
8. Our conclusion, therefore, is that the learned District Judge has erred in appointing the respondent as guardian. The mother of the minor is now about twenty-three. She has so far conducted the present proceedings apparently with success and we are not prepared to say that she is unfit for the position to which her relationship to the minors would ordinarily entitle her. We, therefore, appoint her guardian of the person and property of the minors but contingent on her giving security for the amount calculated in the usual way to the satisfaction of the lower Court within a period to be fixed by it.
9. The respondent will pay the petitioner's costs throughout.