1. The facts leading up to and relevant for the purposes of this appeal may be briefly stated. On 13th March 1928, Srimati Ashalata Roy made an application to the Court of the District Judge, 24-Parganas, for being appointed guardian of the person and property of her minor brother Stub Ram Nandi. The minor on his own statement made on 6th December 1928 is now over 14 years of age. Notice of the application was in due course served on the relatives named in the application and consent was given to the appointment of the applicant as guardian by the four maternal uncles of the minor. The father's sister of the minor who was also served with the notice of the application filed a petition of objection, on which the application for guardianship was amended, by the inclusion of the moveable property belonging to the minor, and from the order recorded in the order-sheet on 4th July 1928 it appears that the petition of objection was not pressed further. There is, however, on the record a letter addressed to the District Judge by the minor himself which bears the date of 25th April 1928 which indicates that at that point of time, the minor was opposed to the appointment of his sister as guardian either of his person or his property. On 13th July 1928 an order was recorded that the applicant
will be appointed guardian of the person and property of the minor on furnishing security of Rs. 6,000.
2. Security bond was duly filed on 28th August 1928, and the Nazir of the Court was directed to test and report.
3. An important development in the case, however, began from 8th September 1928, when the District Judge received a letter from the Deputy Commissioner of Police, Calcutta, informing that the minor was being prosecuted in the Juvenile Court, Calcutta, for an attempt to commit suicide The Deputy Commissioner appears to have been supplied with the names of relatives for the purpose of enabling him to sound them as to' whether any of them was willing to be the guardian, and if so
to apply to the Court for appointment as guardian and for removal of the present guardian.
4. The order for testing the security bond filed by Srimati Ashalata was thereafter cancelled, and on 27th September 1928, the District Judge directed notice to issue on her to show cause why the order of appointment of guardian should not be revoked and the Society for the Protection of Children in India (hereafter mentioned as the Society) was asked to inform the Court if the society were willing to be appointed guardian of the person and property of the minor. This step was apparently taken by the learned District Judge on the letter from the Deputy Commissioner of Police, reporting on the order passed by the District Judge on 8th September and intimating that the Society was willing to take charge of the minor and expressing the opinion that the Society will be the most suitable guardian of the minor. Thereupon on 11th October, the Secretary of the Society filed an application for being appointed guardian on behalf of the Society, and on 15th November notice was issued on Srimati Ashalata Roy and the minor. The case was thereafter heard by the learned District Judge, evidence being adduced by Srimati Ashalata Roy as the opposite party in the same. The minor was examined by the Court in detail and there was cross examination of the minor on behalf of the Society. On the evidence before the Court, the learned Judge came to the conclusion that it was impossible to hand the minor over to the care of outsiders such as the Society. The learned Judge was, however, unable to confirm the appointment of Srimati Ashalata Roy as guardian in view of the attempt at suicide by the minor, although according to the Judge's own appreciation of the evidence before him that the minor was driven to attempt suicide owing to ill-treatment he received from his sister and brother-in-law, had not been made out.
5. In the order passed by the District Judge on 6th December 1928, he refrained from making any order as to who was to be the guardian of the minor's person, leaving the right of the minor's relatives to be determined by the general law; and direction was given to Srimati Ashalata Roy and her husband to allow accredited agents of the Society to visit the minor at his home, while he was there, at all reasonable times. The learned Judge, however, held that Srimati Ashalata was not a fit person to be guardian of minor's property, and liberty was given to the Society to produce evidence to show that it was incorporated under its Memo. of Association and Articles to act as guardian of minor's property. Thereafter the Society, through its Secretary filed a scheme of management of the minor's property and other materials before the Court in support of the application for guardianship of property; and on 18th December 1928, the Society was appointed guardian of the minor's property. Against the two orders passed by the District Judge on. 6th and 18th December 1928, mentioned above, the present appeal is directed.
6. Before going into the questions specifically raised, in support of the appeal, I would dispose of the point that arises for consideration on the order by the learned District Judge on 6th December 1928. By the order, the learned Judge refused to appoint a guardian of the person of the minor. It seems to me on the facts and in the circumstances disclosed in the evidence before the Court, regard being particularly had to the deposition of the minor Shib Ram Nandi in Court, that it is eminently desirable that a guardian of the person of the minor should be appointed. The learned Judge had some suspicion in his mind as to the treatment the boy received from his sister and the sister's husband. We are unable to give effect to this suspicion, in the absence of any definite evidence of ill-treatment. On the other hand it appears to us that the sister was the only person who could be entrusted with the care of this boy, who requires looking after and proper control. The sister's husband, is an educated man, well able to look after the boy and give him proper guidance. That the brother-in-law is not a man of means is no reason why he should not be allowed to help the sister in bringing up her younger brother. On the facts appearing on the record, the other relations of the minor not having come forward to act as the guardian of the minor either, in respect of his person or of his property, and there having been no opposition offered by any of these relations to the appointment of Srimati Ashalata Roy as guardian of the minor, the learned District Judge's order should, to my mind, be superseded by a definite order appointing the said Srimati Ashalata Roy as the guardian of the person of the minor Shib Ram Nandi : The Society as a philanthropic and charitable institution, willing to do good to unprotected children, will, as directed by the District Judge, be allowed to visit the minor, at his house, and take all measures necessary or expedient to protect the minor from harm, whether moral or physical, in co-operation with the guardian Srimati Ashalata Roy.
7. Adverting now to the grounds urged before us in support of the appeal, it has in the first place bean contended that the learned District Judge has not taken into consideration the provision of Section 17, Guardians and Wards Act, in making the orders ha has made. I have already dealt with the question of the appointment of guardian of the parson of the minor. I have no doubt in my mind that it will be for the welfare of the minor - his moral, bodily and intellectual wellfare to appoint his sister as his guardian. Whatever may have been his reason for writing a letter to the District Judge on 25th April 1928, the minor is now well over 14 years of age, and his wishes as expressed by his statement in Court clearly indicates a decided preference for the sister. All this cannot in my judgment be overlooked and I am satisfied on the materials placed before the Court that the welfare of the minor requires that in the absence of any other near relation Srimati Ashalata Roy should be appointed guardian of the minor Shib Ram Nandi.
8. The other part of the case relating to the appointment of guardian of the minor's property, has now to be considered. Anyone having an interest adverse to that of the minor cannot be appointed such guardian, and for the proper management of the property the character, the capacity and the fitness of the individual to be appointed has to be taken into consideration. It is for this reason that an individual only is appointed by the Court as guardian. The provision relating to the appointment of guardian as contained in the Guardians and Wards Act are based on this principle, which has been accepted by Courts in this country and in England. The reason underlying the principle as stated above is to guide the Court, whether the Court acts under its general powers in the exercise of its general jurisdiction or applies the provision of the Guardians and Wards Act as it is done by Courts in the moffusil in Bengal, in the matter of appointment of a guardian of a minor. Some stress was laid on the definition of the word 'person' as contained in the General Clauses Act, and on the meaning of that word as used in the Guardians and Wards Act; but in view of the proviso to which the definition in the General Clauses Act is subject, it cannot be said that the person to be appointed gnardiau whose character, capacity and special fitness in the circumstances of a particular case, have to be taken into consideration, by the Court may be a charitable society, like the one whose claim to be appointed guardian of a minor's property has been allowed by the learned District Judge in the present case.
9. It has been urged before us that not only is the order of the District Judge appointing the society as guardian of the minor's property but the further order that the Secretary of the society is to administer the property is erroneous. It has been said that the Secretary was a variable parson, and that there was no evidence as to the competency of the Secretary to manage property. The contention thus advanced appears to be well founded, and should be given effect to. The Secretary's Office, must of necessity be liable to change so far as the personnel was concerned; and in point of fact, there has been such a change during the progress of the proceedings before the District Judge. So far as the other part of the contention is concerned, there is nothing in the record from which one could satisfy himself that the Secretary has the necessary qualification for the purpose of management of the minor's property; nor is there anything to justify the preference given to the Secretary over the minor's elder sister who was at one stage of the proceeding considered by the learned Judge himself to be a fit and proper person to be the guardian of the minor's property. The orders passed by the learned District Judge referred to above, relating to the guardianship of the minor's property are therefore unsustainable.
10. In the above view of the ease, it is unnecessary to examine the question raised in the appeal, as to whether the society was or was not competent to hold property as trustee for any other person, regard being had to the society's articles of association; nor would any useful purpose be served by our going into the very large question as to whether or not the society as a charitable institution could come within the purview of Act 21 of 1860, for the purpose of its incorporation. The further question raised before us as to whether a person appointed a guardian must be resident within the jurisdiction of the Court making the appointment, need not also be discussed : although in view of Section 39, Guardians and Wards Act, under which enactment, the present proceedings have been started and carried on, it is perhaps intended by the legislature that a Court will not appoint as guardian anyone who resides outside jurisdiction.
11. It remains now to consider the question whether Srimati Ashalata Roy who was considered to be a fit and proper person by the learned District Judge to be the guardian of the person and property of her minor brother Sibram Nandi as indicated by the Judge's order of 11th July 1928, recorded in the order-sheet, should be appointed guardian of the property of the minor, on her furnishing security to the satisfaction of the Judge. As noticed in the previous part of the judgment, a security bond was tiled and remained to be tested. A point has been made on behalf of the appellant that in view of the Judge's order referred to above, the appointment of any other person could not be legally made. The question thus raised is of a somewhat technical nature and the learned advocate for the respondent has sought to meet it by reference to another technicality. I would, however, prefer to confine myself to the merits of the question as it stands at present. The records show that some charges of fraudulent removal and misappropriation of the minor's property were laid against Srimati Ashalata Roy at one stage of the proceedings before tie lower Court. If these charges made on information and belief merely, are unfounded, as we are inclined to think they ire, the lady should be appointed guardian of the property of the minor on the security furnished by her being tested. We are not much impressed by what has been suggested before us as to the possible incapacity of the lady to manage the minor's property, such as it is in the present case; and the fact that her husband does not earn a decent income, as a member of the medical profession, is in our opinion, no ground for holding that the lady should not be appointed guardian under proper safeguards. With reference to the argument that the lady's interest is adverse to that of her minor brother, it appears to me that the furnishing of security to the satisfaction of the Court would be ample protection of the minor's interest, and the desirability of having a very near relation like the elder sister should not be overlooked, where no adverse interest is for the present, apparent, or is made out by evidence before the Court. This view of the matter does not in any way militate against what has been said by Sir Richard Garth, C.J., in the case of Kristo Kishore Neogi v. Eedar Monee Dossee 2 C.L.R. 583 and upon which reliance, has been placed by the learned advocate for the respondent.
12. In the result therefore, the orders of the District Judge against which this appeal is directed, are set aside; Srimati Ashalata Roy is appointed guardian of the person of the minor Shibram Nandi. The case so far as it relates to the application of Srimati Ashalata Roy for appointment as guardian of the minor's property is sent back to the learned District Judge, so that it may be dealt with in accordance with law.
13. My learned brother has dealt exhaustively with all the points that arose in the case and I need not do so over again. I entirely agree in his conclusions and desire to say only a few words.
14. The appointment of a guardian of the person of the minor was in my opinion far more urgently called for than the appointment of a guardian for his property. The District Judge appears to have mis appreciated the relative importance of the two matters, and while leaving the first one undetermined has made a definite order on the latter. He has observed that he was unable on the evidence to hold that the minor was driven to an attempt to commit suicide owing to the ill-treatment he received from his brother-in-law and his sister, and yet he has said that in view of such attempt, whatever was the reason for it, he was unable to appoint or confirm the appointment of the sister. This I am unable to approve. This sister is the only near relative of the minor and I do not see any reason to suppose that she will not treat the brother with all the care and consideration that he is in need of. Her husband may not be in affluent circumstances, but that is no reason for suspecting that he will not help his wife in looking after the minor's welfare, the minor will not be a burden but rather a welcome guest so far as he is concerned. The order of the learned Judge that the sister and her husband will allow the accredited agents of the Society for the protection of children in India to visit the minor at his home, while he is there, at all reasonable times is an excellent order, and if that stands as it will, it will operate as an effective safeguard. It has been urged that the sister has a son and therefore she is disqualified or is, at any rate, undesirable, and in support of this contention the case of Kristo Kishore Neogy v. Kader Monee Dossee 2 C.L.R. 583, has been cited. That case does not go to that length it only lays down that merely as the nearest relation she has no absolute right to be the guardian, or in other words, that the preference is by no means to be necessarily given to her on that consideration.
15. As regards the question whether the registration of the Society under Act 21 of 1860 is intra vires of the Statute, I do not think we are called upon to decide it. But personally I am inclined to think that the expression 'charitable purposes' in the Act should be understood in the wider sense. In my opinion if relief of wants occasioned by lack of pecuniary means is charity, adoption of preventive measures to ward off pecuniary wants is also charity.
16. On the question as to whether the word 'person' as used in the definition of 'Guardian' in Section 4, Clause (2), Guardians and Wards Act is to be read in the light of the meaning given to it by Section (3), Clause (39), General Clauses Act, I am decidedly of opinion in the negative. This meaning would be inapposite so far as some of the provisions of the Act are concerned, e.g. Section 43, Sub-section (4), Section 45 etc. To obviate all difficulties we have been asked to hold that the order would be open to no objection if the appointment is made of Miss Margaret Arbuthnot, as and while Secretary of the Society. I see no point in this, so long as the Society is not held responsible to the Court as such guardian, as it cannot be, under the Act and because a change in the personnel of the Secretary may happen at any moment. In respect of the minor's property therefore the only thing reasonable to do, in the circumstances, would be to proceed in the way directed by my learned brother.
17. We have been asked to make an order in favour of the Society for the expenses that it has incurred. The only part of the expenses that we have to deal with is what relates to the proceedings in this Court, and which is said to amount to Rs. 399-9-3 pies as per a memorandum placed before us on behalf of the Society. The society is a philanthrophic body and we would have been very glad to make an order in its favour if we possibly could, but it is impossible to regard these expenses either as on account of necessaries or as having been incurred for the welfare of the minor or; for protection of his estate. We accordingly feel bound to reject the prayer. As regards the other items in the memorandum the Court below will deal with them and pass proper orders if approached by the Society in that behalf.