Jenkins, C.J. and Woodroffe, J.
1. These are two appeals from an order appointing a guardian of a Hindu widow, aged 14. There is no power in the Court to appoint a guardian unless the Court is satisfied that it is for the welfare of the minor that the order should be passed. In support of the application there is no affidavit on which the Court can act. More than that it seems to us that, in the circumstances, the case should have waited until the return of Maharaja Tagore the head of the family in order that it might be seen whether he was willing to accede to a course which was apparently acceptable to both parties and would have solved the present difficulty. As it is, we have the curious position that an order appointing a guardian has been made on materials which do not comply with the requirements of the law, and at the same time a Rule has been issued on another application and is pending for the determination of the question whether some one else should not be appointed guardian.
2. The proper course now to follow is this: We set aside the order of Mr. Justice Imam and send back the case in order that it may be re-heard by Mm if the petitioner thinks fit to put in proper evidence in support of her application. Her application should be heard together with the application of Mr. Langford James' client and also of Mr. Norton's client if she thinks .fit to make an application; and in any case nothing should be done until the views of Maharaja Tagoro have been ascertained. Finally, we, think before making any order the Court must be satisfied that the application is for the welfare of the minor and that the appointment of the guardian will not infringe Sub-section (3) of Section 7 of the Act.
3. In our opinion the Judge had jurisdiction and was hound to consider that there was a will although probate had not been granted: and that appears to us to be the result of several authorities: Sayad Shahu v. Hapija Begam (1892) I. L. R. 17 Bom. 560., Chinnasami v. Hariharabadra (1893) I. L. R. 16 Mad. 380., and Pathan Ali Khan Badlukhan v. Bai Pani Bai (1894) I. L. R. 19 Bom. 832. 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 possibly 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.
4. We allow the appeals. The respondent will pay the costs of the appellant (Mr. Norton's client). We make no order as to the costs of Mr. James' client.