1. This appeal arises out of a proceeding taken under the Guardians and Wards Act before the Additional District Judge of Howrah. The minor is a girl of 11 years of the name of Rani Moni Dasi, a child widow. The applicant is the father of the girl and the objector (the present appellant) is her mother-in-law. The father applied to be appointed guardian of the person and property of the minor under Act VIII of 1830. An objection was filed on behalf of the appellant. On the 29th April, 1924, a petition was presented on behalf of the objector asking for further adjournment on the ground of her illness. The learned Judge thereupon passed the following order: 'It is unsupported by affidavit or medical certificates and she has already had 6 adjournments after filing hsr objection. I decline to grant any further adjournment. No. one appears. Case will be disposed of ex parte. On filing of necessary affidavits to-day ordered that petitioner be and hereby appointed guardian of the parson and property of the minor. Rani Moni Dasi who will attain majority on 27th June 1933 on his furnishing security to the value of the estate.' An application, it appears, was made on the 2nd May for a re-consideration of the above order. That application has not been placed before us but we are told that it was to that effect. Another application was made on the 31st May by the objector complaining of certain unlawful acts of the respondent in turning her out of the house. The application of the 2nd May was placed before the Judge on the 7th July, 1924, on which the Judge refused to re-hear the matter of the appointment of the guardian and rejected the application. Against the order of the 29th April, 1924, the present appeal has been preferred and against the order of the 7th July, 1924, an application for revision under Section 115, C.P. C., has been filed by the objector.
2. In the appeal it is argued that the learned Judge has not observed the provisions of the law as contained in Sections 7, 13 and 17 of the Guardians and Wards Act; or, in other words, he should have recorded his reasons for appointing the guardian, he should have considered the welfare of the minor in making such appointment and he should have taken evidence before passing the order of appointing the respondent as guardian of the person and property of the minor. It is in effect argued that the order of the Judge made on the affidavits filed was ultra vires. The procedure followed by the learned Judge is sanctioned by the rules of this Court, bee GeneralRules and Circular Orders (Civil), Chap. II, Rule 43 which lays down that in uncontested proceedings under the Guardians and Wards Act, 1890, any particular fact or facts may be proved or evidence upon any application may be given by affidavit.
3. It is next argued that the application by the father for appointment as guardian was incompetent and should have been dismissed; and reliance has been placed in support of this contention to the case of Bai Tara v. Mohanlal Lallubhai 68 Ind. Cas. 518 : 24 Bom. L.R. 779 : A.I.R. 1922 Bom. 405. Macleod, C.J., in that case observed that an application by a father is not permissible in view of the provisions of Section 19 of the Act. Shah, J. did not express any opinion on this question and decided the case upon the other grounds raised in it. I most respectfully say that I am unable to agree with the view adopted by the learned Chief Justice in that case. Section 19 of the Guardians and Wards Act says: 'Nothing in this Chapter shall authorise the Court to appoint or declare...a guardian...a guardian of the minor...(b) of a minor whose father is living and is not, in the opinion of the Court, unfit to be guardian of the person of the minor.' It seems to me that what is meant by the section is that where the father of the minor is living and is not incompetent to be the guardian of the person of the minor, no other person shall be appointed as guardian of the person of such minor. It does not restrict the right of the father though he is the natural guardian under the personal law of the minor, to apply to be appointed guardian under the Guardians and Wards Act. Such appointment may confer on him higher rights than what he possesses as the natural guardian and in dealing with the outer world the certificate, granted by the Judge confers a greater importance on his powers than what he possesses as the natural guardian.
4. It is next contended that the appellant as the mother-in-law of the girl has the preferential right to be appointed guardian. This and the other points noted above were not taken in the grounds of appeal filed but we have allowed the learned Advocate to argue them. In his application for appointment as guardian the respondent, made certain allegations against the objector. The parties went to trial with respect to those allegations. The appellant not having availed herself of the opportunity of presenting her case before the Court, the Court had no other alternative than to pass an ex parte order: and in the circumstances of this case I find that there is nothing wrong in the course adopted by the learned Judge. The Court below was never called upon to discuss the relative fitness for the post of the parties. There is nothing against the law, therefore, in the order passed by the learned Judge appointing the respondent as guardian of the minor.
5. As to the application in revision, it appears that on the 7th July, 1924, a petition was presented for adjournment of the matter on the ground that the appellant was ill. Along with that petition the learned Judge heard the petition filed on the 2nd May inviting him to re-consider the objection. He, however, held that the application was misconceived. No ground for review was made out against his order and he did not find himself disposed to interfere in the exercise of his inherent power. In the petition for re-hearing, the appellant made certain allegations against the respondent. The Judge has rightly observed that if these allegations are true, the remedy lies under Section 39 of the Act. It is argued on her behalf that she had no remedy under Section 39 and, therefore, the principle of the decision in Rashmoni Dasi v. Ganada Sundari Dasi 26 Ind. Cas. 275 : 20 C.L.J. 213 : 19 C.W.N. 84 should apply. That case has no connection whatsoever with the facts of the present case. There an application was made by the minor for revocation of the certificate on the ground that she had attained majority before the order appointing the appellant as her guardian was made. There is no provision in the Guardians and Wards Act for an application like that and hence it was held that an order passed on such an application revoking the appointment was not an order passed under Section 39 of the Act and, therefore, was not appealable under Section 47. The order passed was in the exercise of the inherent powers of the Court and was good and proper. I fail to see what application that decision has to the present case. There are various criticisms made against the order passed by the learned Judge on the 7th July, 1924, but I do not think that they can be heard under Section 115, C.P.C.
6. The result is that this appeal fails and is dismissed with costs. We assess the hearing fee at two gold mohurs. The application is also dismissed but without costs.
7. I agree.