1. This is an appeal against the order of the District Judge of Kistna dismissing a petition by the zemindar of South Vallur, headed as under the Guardians and Wards Act. It is not clear what was the particular provision of the Act the petitioner desired to proceed under, not it clear why the learned District Judge said the petitioner was proceeding under Section 7 of that Act. The first proper in the petition is that the petitioner or some other lit and proper person shall be appointed guardian of the infant and the second which is at present material is that the infant snail be removed from the custody of the respondent and placed in charge of a guardian to be appointed. It does not seem to have been recognised by those concerned that the relief which a father can appropriately claim is under Section 7, or under Section 25 not under Section 19, which has also been referred to before us The two first mentioned deal with the appointment of or declaration of a guardian, but the last applies only to persons other than the father, who, however, can apply only in case they show that the falter is unfit for the guardianship. We accordingly consider the petition directly with reference to the second prayer above referred to and Section 25 of the Act. It may at once be said that we intend remanding the petition to the lower Court; and it may then be worth while for the petitioner to consider whether his prayers or averments need amendment in any way.
2. Turning to the lower Court's judgment, we regret that we are unable to understand on what ground exactly it dismissed the petition. There is, first, some reference to the relations between the petitioner and his wife, in whose custody the minor at present is and to the fact that under a compromise, Exhibit A, the petitioner acquiesced in the retention of the custody of the minor by the respondent. No doubt something has been said of this hereon behalf of the respondent, the suggestion being that the arrangement was not revocable. A sufficient answer to that is a reference to the dictum of the Judicial Committee in Mrs. Annie Besant v. Narayaniah : (1914)16BOMLR625 that the authority delegated by a natural guardian to any other person will be revocable, subject to an exception which the lower Court has not considered and which may be held not to have been established in the present case. There is, therefore, nothing found by the lower Court or on record before us to show that the petitioner's abandonment of the minor to the respondent's custody is not revocable. It is suggested that it makes some difference that Exhibit A has been embodied in a decree. To speak strictly, however, it has not been shown us that the portion of Exhibit A now material was embodied in any decree. Exhibit A is headed as presented in a partition suit which was pending and. it does not appear that it was or indeed could have been treated as the basis for an order in the guardianship petition, which also was pending. The learned Judge then states, 'the sole question for consideration under Section 7 of the Act is the welfare of the minor,' and next says that he does not rely on certain photographs, which indeed have not been pressed on ns here. He next refers to a statement in an affidavit of the petitioner in the other proceedings that 'so long as his wife chooses to keep away from him he will act as he pleases.' We are not clear as to the meaning of that or that it entails anything more than that he may marry a second wife, not that he will conduct himself in a manner disqualifying him for the custody of his child. That is followed by the mention of the failure if the petitioner to go into the box. We must presume that he had the chance of going into the box and that the respondent's Vakil had indicated his wish to cross-examine him, but that he did not offer himself for cross-examination, although it is fair to say that this is disputed here on the petitioner's behalf. It, however, goes a very little way towards supporting the petitioner's case. There is then a finding that there is nothing against the respondent's character. There is, lastly, the definite and addrissible ground mentioned in the lower Court's order that the age of the minor is about four and the fact that he may properly be looked after by his mother for the present. We do not, however, think that this is sufficient to justify the District Judge in refusing to give the child to the custody of his father. Each case must, of course, stand or fall with reference to its particular circumstances. But when there is nothing established against the father, the petitioner, except that he and the respondent have during the past been on bal terms and have been engaged in litigation, that is not, in our opinion, sufficient.
3. That, however, was considered sufficient by the lower Court and it is, we recognise, possible that on that account the respondent did not produce anything in support of her allegations that the petitioner was unfit to have the custody of the child. In these circumstances, we think it right to set aside the order of the lower Court and remand the petition for re-hearing in the light of the foregoing, after the respondent has been given ah opportunity to produce any evidence which she may desire to produce in support of her allegations, a similar opportunity being of course given to the petitioner.
4. Costs to date in this Court and in the lower Court will follow the result and will be provided for in the order to be passed.