S.N. Guha Ray, J.
1. This is an appeal by Johara Khatun Bibi alias Johara Bibi who had applied for appointment as guardian presumably of the person and properties of Gole Arjan, minor daughter of Sheikh Ayub Rahaman deceased from an order dismissing her application on the ground that an earlier application of hers had been dismissed. It appears from a copy of the judgment in Case No. 151 of 1953 and the judgment of this Court on appeal that her earlier application was not for appointment as guardian but it was an application for a declaration that she was the guardian of the person of the minor. That application was dismissed and the learned Judge thought that as that case was rejected after contest, because she was not fit to be appointed guardian, her application for being appointed guardian was to be rejected. Evidently what the learned Judge must have meant by saying that her earlier claim was rejected after contest as she was not fit to be appointed guardian is that it was rejected because she was not thought fit to be declared guardian. In that case there was no question of her being appointed guardian. The distinction between the two cases is that one can be declared a guardian only when one is already the guardian, but in the case of the appointment of a guardian, the question that arises is whether amongst all the rival claimants ton guardianship the applicant is the most suitable for appointment or not. Clearly the question in the earlier case was not identical with the question in this case, and unless it can be treated as constructive res judicata her present claim could not be thrown away at the very outset without any consideration of the application on the merits. The learned Judge was apparently wrong in thinking that this application of the appellant would be barred under the principle of constructive res judicata, because while applying for being declared a guardian she could not have made an alternative case that she should be appointed guardian, because that would have gone contrary to her case that she was already the guardian.
2. As her claim for appointment as guardian was not considered on the merits, the matter has to go back, but in deciding whether the matter should go back one has to consider whether her claim for appointment as guardian of the person of the minor can at all be entertained in view of the admitted fact that she has1 married someone who is a stranger to the minor. On this point Mr. Banerjee has referred us to the rule of Mahomedan Law under which a female relation who has a preferential claim to the guardianship of a female minor loses that preferential claim if she marries some one who is a stranger to the minor. He has taken us through portions of the Hedaya where it has been definitely laid down that a female relation entitled to be appointed guardian of a female child loses that right on her marriage to a stranger. The question for consideration now is whether the disqualification is absolute or in other words whether because she is disqualified under the Mahometan Law from being appointed guardian, the Court in its choice of a suitable person for appointment as guardian of the minor is restricted only to those who are not so disqualified- In other words, must the Court in such a case confine its choice only to those who are not so disqualified
3. It is true that under Section 17(1) of the Guardians and Wards Act in appointing or declar ing the guardian of a minor, the Court shall, subject to the provisions of that section, be guided by what consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare or the minor. It is thus clear that the Court has to place in the forefront of its consideration the question whether the person who is otherwise the most suitable can be appointed guardian of the minor consistently with the Mahomedan Law by which the minor is admittedly governed. If he or she is not so, his or her case will be thrown out provided, of course, some one else who is suitable for such appointment is available. It may be that although some other relations are available and suitable, they are not willing to be appointed guardian. It may also be that some other who are willing are not suitable If no one who is both willing and suitable amongst the relations is available then the question arises as to what the Court has to do. Is the Court bound in such a case to appoint some one who is a complete stranger not merely to the minor, but also to the whole family? Cannot the Court in such a case appoint a person who is otherwise suitable, but who is disqualified under the Mahomedan Law? In our opinion the Court can in such a case appoint a person who is otherwise suitable but has disqualified herself by marrying a stranger, but then she must be chosen as the last resort.
4. In support of this view can be cited the case of Tumina Khatun v. Gaharjan Bibi : AIR1942Cal281 , in which the view has been taken that under the Mahomedan Law, a female relation of a minor, on marrying a stranger, does not become disqualified to be guardian altogether and in all circumstances, she only loses such preferential right as she had. In this case the view taken in an earlier case, viz., Yakub Sheikh v. Nafujan Bibi, 11 Cal L. J. 632 (B) has been held to be obiter. In our view, the view taken in : AIR1942Cal281 is correct and that taken in 11 Cal LJ 632 (B) was obiter. We are supported further in this view by a text in the Hedaya, Volume I, of Hamilton's translation at page 108. This text is as follows :
'Where persons are destitute of any natural guardian the authority of contracting them in marriage is vested in the Imam of the Kazee, because the prophet in his precepts declared, 'persons being destitute of guardians have a guardian in the Sultan'.' From this it is clear that even according to Mahomedan Law, the ultimate choice rests with the Kazee of the Court who is initially to proceed according to the principles of Mahomedan Law, and it is only where a suitable guardian is not available, if the choice is restricted to persons who are qualified according to the principles of Mahomedan Law, that the Kazee can, in exercise of his discretion in making the ultimate choice, select some one who is disqualified according to Mahomedan law. Unless this view is taken, the welfare of the minor which is of prime importance in considering who should he appointed guardian of a minor is bound to be relegated more or less to a subordinate position, in a number of cases.
5. As the whole case is going hack we have deliberately refrained from making any observations on the facts, and if we have found it necessary to make certain observations as regards the law, it is only in order that the learned Judge may be under no misapprehension as regards the law by which he should be guided'.
6. This appeal is accordingly allowed. The order of the learned Judge dismissing the appellant's application for appointment as guardian is set aside and the whole matter is remanded to him. The parties will bear their own costs in this Court.
Renupada Mukherjee, J.
7. I agree.