Venkatasubba Rao, J.
1. The appeal raises questions regarding the interpretation of Sections 19 and 25 of the Guardians and Wards Act (VIII of 1890).
2. An application was made under the Guardians and Wards Act to obtain a declaration that the father of the infant in question was its legal guardian. The applicant's wife died in the house of her parents leaving a female child of 15 days old. Within six months of her death the father of the infant requested his father-in-law to hand over to him his child, but his request was refused, and thereupon the father applied to the Court that he might be declared the guardian of his minor child. The learned District Judge made an order in his favour and also directed the custody of the minor to be given to the father.
3. The first contention of the appellant is that the Court bad no jurisdiction to make the order in question under Section 19 of the Guardians and Wards Act. The material part of the section runs thus:- 'Nothing in this Chapter shall authorise the Court to appoint or declare 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.'
4. It is argued, that inasmuch as the minor's father is living and is not found to be unfit to be guardian, the Court cannot either appoint or declare a guardian. The question is whether this is the right construction of Section 19. In this connection, I may refer to another similar clause of the same section which enacts that a Court shall not appoint or declare a guardian of the person of the minor who is a married female and whose husband is not, in the opinion of the Court, unfit to be her guardian. The section recognises the preferential right of the husband or the father as the case may be and provides for the safeguarding of such right. It is not intended to impose a disability upon either of them but, on the contrary, the plain intention of the section is, that in the case of a married female no one other than a husband shall be appointed her guardian un-leas he is unfit to be such and in the case of a minor child none but the father, excepting when it is proved that he is nod fit to be its guardian. We are asked to say (confining ourselves to the case of the father) that he can never be appointed or declared a guardian. This seems to me to defeat the very object of the section. When the father of the infant is found by the Court not to be unfit, it is said be is the very person that is not to be appointed or declared. The section is, in my opinion, badly drafted but the construction of the appellant, if accepted, leads to an absurdity, and the construction must, if possible, be rejected. In my opinion, the section means that if a third party applies he shall not be appointed or declared a guardian of the person of a minor whose father is living and is not unfit. If the father is the applicant, the section has no application. This is the view taken by a Bench of this Court of which I was a member in Satyanarayana v. Narasaiyamma A.I.R. 1924 Mad. 45 and I still think that that view is correct. Section 7 runs thus:
(1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made (a) appointing a guardian of his person or property, or both, or (b) declaring a person to be such n guardian the Court may make an order accordingly.
5. The form of the application is prescribed by Section 10. Under these two sections the question that the Court is to put to itself is : - Is it for the welfare of the minor that its father should be declared to be the guardian of its person? If it is, the Court may make an order. Under Section 17 in making an appointment or declaration, the Court must first and foremost have regard to the welfare of the minor. But Section 19 says by way of a rider that it shall be presumed until the contrary is shown, that the welfare of the minor requires that the father shall be the guardian of the person.
6. The appellant's learned vakil strongly relies upon a passage in the judgment of their Lordships of the Judicial Committee in Annie Besant v. Narayaniah A.I.R. 1914 P.C. 41. The sentence relied upon is this : - 'And further no order declaring a guardian should by reason of the 19th section of the Guardians and Wards Act, 1890, be made during the respondent's life unless in the opinion of the Court he was unfit to be their ?guardian, which was clearly not the case.' The judgment of the Privy Council was based on three grounds : - (1) The District Court of Chingleput in which the suit was instituted had no jurisdiction. The High Court in dealing with suits transferred to it, possessing only such powers as the District Court possessed, had therefore also no jurisdiction. (2) A suit inter partes is not the form of procedure prescribed by the Act. The suit was therefore incompetent. (3) The relief asked for was a mandatory order directing the defendant to take possession of the persona of the infants in England, bring them to India and hand them over to their father. Any attempt on the part of the defendant to comply with this order, if resisted by the infants, would have been contrary to the Law of England and no Court ought to make an order which might lead to this consequence.
7. It is on these grounds that the decision on the High Court in the Besant case A.I.R. 1914 P.C. 41 was set aside. The Judge on the Original Side not only gave judgment for the plaintiff but for the purpose of making the judgment effective, appointed the plaintiff guardian of his sons. When the Privy Council set aside the judgment, everything that followed on the judgment was necessarily vacated. Their Lordships were not dealing with the propriety of the order appointing the plaintiff as the guardian The observation, therefore, relied on is obiter, and in the absence of any indication in the judgment that their Lordships gave a considered opinion on the question 1 am not prepared to hold that they intended to decide finally the meaning of Section 19. It is significant that in the head-note to there port of the case it is not stated that this was one of the points decided.
8. On my construction of Section 19 the District Judge's decision is correct.
9. The respondent has endeavoured to support the judgment also by reference to Section 25 of the Act. It runs thus:
25(1). 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 re turn to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order, may cause the ward to be arrested and to be delivered into the custody of the guardian.
10. In this case the ward did not leave nor was it removed from the custody of its father and therefore it is contended by the appellant that this section does not apply. In Utma Kuar v. Bhagwantab Kuar (1915) 37 All. 515 and Ibrahim Nachi v. Ibrahim Shib (1915) 39 Mad. 608 the section was held to apply in similar cases on the footing that although the lawful guardian did not have previously actual physical custody it should be deemed that the minor at the time of leaving or removal was constructively in that guardian's custody and therefore he could enforce his rights under that section. Certain difficulties arise from obvious defects in the Act and one kind of difficulty was overcome in Utma Kuar v. Bhagivanta Kuar (1915) 37 All. 515 and another kind of difficulty in Ibrahim Nachi v. Ibrahim Sahib (1915) 39 Mad. 608 by the Courts placing this construction upon Section 25.
11. I respectfully follow these decisions and hold that, as I am satisfied that it is for the benefit of the ward that he should be handed over to its father, Section 25 is applicable. I would however add that in the case of a father who, unless unfit, is the proper guardian under the Act, a resort to Section 25 may be attended, in some cases, with inconvenience as he has to prove affirmatively that it is for the welfare of the ward to be given into his custody; whereas if it is held that my interpretation of Section 19 is correct, he is placed on a more secure footing.
12. On the merits also, I am against the appellant. Nothing has been alleged or proved against the father, the only allegation being that his wife's relations are in a more prosperous state than himself.
13. For these reasons I would dismiss the appeal with costs.
14. I have had the advantage of reading my learned brother's judgment and agree that the respondent can support the lower Court's judgment by reference to Section 25, Act VIII of 1890. As stated by Sadasiva Aiyar, J., in Ibrahim Nachi v. Ibrahim Sahib (1915) 39 Mad. 608 a ward who was never in the actual custody or charge of his father may be deemed to be removed from his custody when the person in actual possession repudiates to the father's knowledge the right of the father to the actual custody of the minor.
15. Whether the dictum in Besant v. Narayaniah A.I.R. 1914 P.C. 41 is obiter or otherwise. I think it expresses the plain meaning of the statute and under Section 19 the Court is not authorised to declare anybody not even the father as guardian of the person of a minor whose father is living and in the opinion of the Court is not unfit (subject to the provisions with respect to European subjects). Whether this was the intention of the legislature or whether a contrary intention has been defeated by defective drafting I am not prepared to say.