P.N. Mookerjee, J.
1. On the 12th March 1954, opposite party No. 1 Dhanabanta Debi applied before the District Judge, Howrah, for being appointed guardian of the person and property of her minor sons Syamser Sarma, Biswanath Sarma, Srinath Sarma and Sewbachan Sarma. In her said application, the opposite party No. 1 alleged inter alia that the said minors were her sons by her deceased husband Pandit Shanta Ram sarma and wore living with her under her care and in her custody, that they were owners in possession of holding No. 02 Sanatan Mistry Lane, Salkia, and that their debts amounted to Rs. 3,200/-. The application, however, did not contain any very specific relevant statement as to why it was necessary to appoint a guardian of the property of the minors. This defect appears to have been cured by subsequent applications, from which it appears that the minors' only source of maintenance was the income from the tenants of the said property and there was difficulty in the matter of realisation of rents from those tenants. The only near relative, mentioned in the guardianship application, was the minor's mother, the applicant herself.
2. After issue of general citation, objections were filed by one Rajnarayan Sarma for self and as guardian of his minor brother Shyamdeo Sarma but these were later withdrawn. Then the present petitioner, claiming to be a brother ,of the minor's deceased father Pandit Shanta Rani Sarma, filed a petition, objecting mainly to the applicant's appointment as guardian of the property of the minors concerned upon the ground that the property, mentioned for that purpose, namely, Holding No. 62 Sanatan Mistry Lane, was not the minor's separate property either in whole or in part or in any definable share and that the same was the joint family property of a Mitakshara coparcenary, of which theobjector was one of the members. Upon this objection, a question arose whether the objector had any locus standi in the guardianship proceedings. The learned District Judge answered that question in the negative and against the objector by his Order No. 32, dated 7-4-55, and, having thus put him out of court, he allowed the mother applicant's prayer for being appointed guardian of the person and property of the minors and appointed her such guardian on her furnishing security to the extent of Rs. 300/-. This was done by the subsequent Order No. 33, dated 7-4-55/11-4-55. Against these two orders (Nos. 32 & 33) the present Rule was obtained by the objector petitioner.
3. It is clear that the real point for consideration is whether the learned District Judge's order, holding that the objector petitioner has no locus standi in the guardianship proceedings and putting him out of court on that ground, can be supported. If that order is a good order, it would serve no useful purpose to set aside the subsequent order, appointing the applicant mother as guardian of the person and property of the minors which, though somewhat irregularly made, as we shall show hereinafter, is substantially correct on the merits in the facts and circumstances of the present case. If, on the other hand, the petitioner was wrongly put out of court without an enquiry into his allegation whether the disputed property or any part or share thereof was the property, -- the separate property,--of the minors concerned or whether it was Mita-kshara coparcenary property as claimed by the objector, the subsequent order of appointment of guardian of property would be undoubtedly bad and it would require to be set aside and the matter considered afresh in accordance with law. We, therefore, proceed to enquire whether the earlier order of the learned District Judge, namely, Order No. 32, dated 7-4-55, can be supported.
4. In our opinion, that order cannot stand. It is the objector's allegation that the disputed property was the Coparcenary property of a Mitakshara joint family, of which he was a member and of which the minor's deceased father Pandit Shanta Ram, from whom the minors are claiming title, was also a member. It is no doubt true that the objector's case as to who were the other member or mebers of this coparcenary is not very clear but, with proper clarification of this point, the question ought to be investigated and a prima facie finding is necessary that the disputed property (for which alone a necessity has been alleged for appointment of a guardian of property) or some share or portion thereof is the minor's separate property before a guardian can be appointed of the minor's property. If the disputed property cannot be held even prima facie to be not Mitakshara coparcenary property, as alleged by the objector, no guardian can be appointed in respect thereof and, the appointment of guardian having been sought for only on a case of necessity for such appointment in respect of that property, that prayer must be rejected. This, of course, would not affect the mother applicant's appointment as guardian of the persons of her minor sons.
5. It is settled law that a guardian cannot be appointed over a minor's interest in a Mitakshara coparcenary property. That is not individual pro-perty. (Vide Gharib-ul-Lah v. Khalak Singh, 30 Ind App 165 (PC) (A)). If follows, therefore, that,if the property in question, over or in respect of which the appointment is prayed for, be of the above description, the prayer must fail. When, therefore, an allegation is made before the Court that a particular property or properties, over or in respect of which the appointment is claimed, is Mitakshara coparcenary property, the Court ought to consider that question and negative the allegation at least prima facie before making the appointment. It is undoubtedly true that no detailed, elaborate or lengthy enquiry need or should be made. It is true also that the guardianship court is not the forum and not competent to decide finally any question of title and the court's finding (which would necessarily be of a summary character) would not conclude the parties on any disputed question of title. But, be that as it may, as, over a Mitakshara coparcenary property, no guardian can be appointed, the Court should at least prima facie be satisfied that the disputed property is not of that character before making the appointment. We do not think that the guardianship court is incompetent to consider such a question, although it certainly involves to a certain extent a question of title, for the above purpose. Indeed, without snch consideration, where it arises, the guardianship application cannot be properly decided in view of the settled law, referred to above. In this view, we respectfully agree with the decision of this Court reported in Banamali Patra v. Arjun Sen : AIR1932Cal730 . The same view was also taken in (Mt. Hassan Bi v. Nek Alam, AIR 1940 Lah 9) (C). We do not think that the Bombay case of Gurappa Shivgenappa Putti v. Tayawa Shidappu, ILR 40 Bom 513: (AIR 1916 Bom 202 (2)) (D), really lays down anything to the contrary. What was condemned in that case was an elaborate enquiry into the question of title by the guardianship court in such cases with a specific pointer that such court is not entitled to pronounce finally on any question of title and, ordinarily, such question would be outside its province. We do not think that the Bombay decision goes any further and, if it does, we would respectfully dissent from it. We may point out also that, in such event, ILR 40 Bom 513: (AIR 1916 Bom 202 (2)) (D), would also be opposed to the earlier decision of that Court, reported in Virupakshappa v. Nilgangava, ILR 19 Bom 309 (FB) (E).
6. Clearly also the objector is a person entitled to notice of the guardianship proceeding. Leaving aside the question of his disputed claim to the property involved, it is undeniable that, even on the applicant's own case, the objector would be a paternal uncle of the minors concerned and thus one of their near relatives. The non-mention of his name in that category in the guardianship application was certainly an irregularity. As a near relative he was pre-eminantly a person who should have received due notice of that application. It is only proper, therefore, to allow him a hearing in the guardianship proceeding on his allegation that the property in question was the coparcenary property of a Mitakshara joint family.
7. In the above view, we would make this rule absolute to this extent that we set aside the orders, complained of, for the purpose of enabling the court below to come to a proper conclusion, in accordance with law and in the light of this judgmerit, upon the merits of the objector's allegation that Holding No. 62, Sanatan Mistry Lane is Mitak-shara coparcenary property and then dispose of the case finally in a proper manner. Before, however, that question can be taken up and the case reopened for that purpose, the objector must clarify his allegation about the alleged co-parcenary or joint family by stating specifically as to who constitute the same and, if he fails to do that within a time, to be fixed by the court below for the purpose, this Rule will stand discharged and the orders, complained of, would remain undisturbed. If the objector makes the necessary clarification, the court will consider the merits of the objector's allegation, mentioned in this paragraph, and decide the case finally in accordance with law and in the light of this judgment. No other question or questions will be open for discussion before the court below and the objector must be limited only to his objection about the disputed property being Mitakshara coparcenary property as mentioned above.
8. We would only and that the order of the learned District Judge, making the appointment, discloses an apparent irregularity, namely, that it bears two dates and there is no explanation for the game on the records. This is undoubtedly an irregularity but we do not propose, as we do not think it necessary, to add to or alter the order, which we have passed above, on account of this irregularity. We only point this out so that the learned Judge who will take up the matter now will guard against such irregularities.
9. The Rule is disposed of as above.
10. There will be no order for costs in this Rule. Other costs will be in the discretion of the court below when it finally disposes of the case.
Guha Ray, J.
11. I agree.