1. This appeal is directed against an order for the appointment of a guardian of the person of an infant, by name Ranjit Singh, one of the grandsons of Rai Budh Singh Dhudhuria of Azimgunj. The rival claimaints for the office of guardian are the first cousin of the father of infant, Raja Bijoy Singh Dhadhuria, who has been proposed for appointment by the grandfather, and Fulkumari Bibee, the sister of the mother of the infant, who was nominated for appointment as guardian by the mother in a Will executed by her on the 7th June 1912. The District Judge has given preference to the uncle and has appointed him guardian of the person of the infant. Against that order this appeal has been preferred by the aunt and the uncle as also the grandfather have been joined as parties respondents.
2. To appreciate the circumstances under which the question of the appointment of a guardian of the person of this infant has corns before the Court, it is necessary to recite briefly the history of the family. Inder Chand Dhudhuria, the father of the infant and one of the sons of Rai Budh Singh Dhudhuria, went to England in 1889. On his return to this country, caste difficulties arose, and the ultimate result was that he was out-casted. The members of the community, however, subsequently relented and agreed. to limit the excommunication to Inder Chand himself and to all children that might be born after his visit to England. The infant now before the Court was born about the year 1898. 'The result of the excommunication of Inder Chand was that he had to live with his wife and children and separate from his father. This state of things continued up to the 9th April 1899, when Inder Chand died. Shortly after his death, his father was appointed guardian of the person and property of the infant on the 8th July 1899. It is clear, however, from the materials on the record that the grandfather was not able to keep the infant in his own custody, as the pressure of caste difficulties was insurmountable. Consequently, on the 18th December 1905, with the acquiescence, if not the actual assent, of the grandfather Indra Kumari, the mother of the infant, was appointed guardian of his person. The grandfather, however, continued to be the guardian of the property of the infant and it is not disputed that upto the present moment he is such guardian. Indra Kumari died on the 1st June 1913. A year before her death, she had executed a Will on the 7th June 1912 which was registered on that very day. No probate has yet been obtained of the Will, but its genuineness has not yet been questioned in the present proceedings and it has bean received in evidence by consent of all the parties and accepted in proof of the wishes of the mother in respect of the appointment of a guardian of her infant son after her death. On this subject, the Will is perfectly clear in its terms. The mother expressed a decided preference for her sister as the fittest parson to be appointed guardian of the person of her infant son. She stated this explicitly, and by this instrument she nominated her sister Fulkumari Bibee as her successor in the guardianship of the person of her minor son Ranjit Singh, Immediately, upon her death, the matter was brought inevitably into Court, and an application was made by Fulkumari Bibee for appointment as guardian of the person of the infant. But she had been anticipated, and the grandfather had already expressed a desire that his nephew, Raja Bejoy Singh Dhudhuria, should be appointed guardian. It is worthy of note, however, that Raja Bejoy Singh himself has never made an application in this behalf. The attitude he has consistently taken throughout the proceedings, both here and in the Court below, is that he is not unwilling to accept the office of guardian. He is ready to be burdensd with its responsibility, more out of a feeling that he should meet the wishes of his uncle than from a sense of attachment towards his nephew. The District Judge, as already stated, has decided in favour of the uncle as against the aunt. He has attached no weight to the wishes of the mother in this respect. He has also held substantially that the wishes of the minor, who is now about 15 years old, should not have any weight in the decision of this matter. the question for consideration before the Court, consequently, is whether the uncle or the aunt should be appointed guardian of the person of the minor.
3. The principle upon which the question should be decided is laid down in Section 17 of the Guardians and Wards Act. Sub-section (1) of that section provides that in appointing the guardian of a minor the Court shall be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. Sub-section provides that in considering what will be for the welfare of the minor, the Court shall have regard to the age, sex, and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent and any existing or previous relations of the proposed guardian with the minor or his property. Sub-section (3) provides that if the minor is old enough to form an intelligent preference, the Court may consider that preference. The primary point for I consideration consequently is, what, in the circumstances of this case, is for the welfare of the miner. As observed by Mr. Justice Davar in the case of Re Goolbai and Lilbai 32 B. 50 : 9 Bom. L.R. 923, in making orders appointing guardians for the persons of minors, the most paramount consideration for the Judge ought to be what order, under the circumstances of the case, would be best for securing the welfare and happiness of the minors? With whom will they be happy? Who is most likely to contribute to their well being and look after their health and comfort? Who is likely to bring up and educate the minors in the manner in which they would have been brought up by the parents, if they had been alive? In fact, the main question for the Court to consider in the case of the unfortunate minors, Who have lost their natural guardians, is who, amongst the relations, or for the matter of that, friends of the minors, can you select, who will supply, as nearly as possible, the place of their lost parent or. parents? The interest, well being and happiness of the minors ought to be the main and paramount consideration for the Court in selecting the guardian of the person of a minor. The same principle has been laid down by the Allahabad High Court in the case of Bindo v. Sham Lal 29 A. 210 : A.W.N. (1907) 21 : 4 A.L.J. 22. Indeed the question of the true welfare of the minor is of such paramount consideration that the recognised rights of guardianship under the law to which the minor is subject must, if necessary, be assigned a relatively subordinate position Tota Ram v. Ram Charan 8 Ind. Cas. 785 : 7 A.L.J. 1149, Mathuveerapa Chetty v. Lingammah (Ponnuswami Chetty) 13 Ind. Cas. 16 : (1911) 2 M.W.N. 561 : 10 M.L.T. 477 : 22 M.L.J. 68 or, as has some times been said, propinquity must yield to fitness Akima Bibee v. Azeem Sarung 9 W.R. 334 Sohna v. Khalak Singh 13 A. 78 A.W.N. (1891) 1 . Besides it is clear from the decision in Kristo Kissor v. Kadermoyee 2 C.L.R 583 the uncle, merely because he is a paternal uncle, is not, as a matter of right, entitled to supersede the aunt on the sole ground that she is the maternal aunt. The fundamental point to be considered is, what is for the welfare of the particular minor, an! that leads us at once to the question, what are the circumstances of the present case?
4. It is beyond dispute that ever since the return of Inder Chand to this country and his excommunication from society, ho lived separate from his father with his wife and son (the infant now before the Court). After the death of Inder Chand, the grandfather found himself unable, it may be owing to the unsurmountable pressure of social difficulties, to take back his widowed daughter-in-law and his infant grandson into his family circle. His nephew, Raja Bejoy Singh, whom he now proposes for appointment as guardian of the person of his infant grandson, has never taken the remotest interest in the minor. The result was that Indra Kumari was driven to seek the society of her sister; and, although a suggestion was faintly made in this Court at one stage that Indra Kumari lived separate, not merely from her father-in-law but also from her sister, it was indisputably proved from an affidavit which had been filed on the 25th August 1911 by Rai Budh Singh himself that Indra Kumari and her infant son had resided for years with Fulkumari. After Indra Kumari had been appointed guardian, she found it difficult to maintain her child and an application was made by her on the 19th June 1911 to the District Judge for an order upon her father-in-law, who was the guardian of the property of the infant, for payment of expenses incurred in connection with the maintenance of the child. This application wag opposed by the grandfather and in an affidavit filed-on the 25th August 1911 Rai Budh Singh pledged his oath that the then petitioner (his daughter-in-law) was living with her minor son in the house of Babu Norpat Singh, the husband of her sister, as members of the same family, and that she had no separate establishment, nor was there any necessity for it. This is in agreement with other statements found on the record and was confirmed by the infant who was examined in this Court. The position, therefore, has been that for many years past and certainly during the last ten years the infant -has been treated as an outcaste by the family of his father, his grandfather and his uncle have both disowned him and he has been brought up in the family of the sister of his mother. That sister of his mother is now willing to take charge of him. The application is resisted by the grandfather, who is himself unable to take charge of the boy and puts forward his nephew as a desirable candidate for the office of guardian. We put it to the learned Vakil for the grandfather whether he was willing to look after his infant grandson himself and to take him back into his family circle. The answer was a decided negative. We put it to the learned 'Vakil for the uncle, who has been proposed for appointment as guardian, whether the uncle was prepared to take his nephew into his family circle. The answer was an equally emphatic negative, and it was added that if the uncle was appointed guardian, the infant would be kept in a house at Berhampore in charge of a tutor. The effect of this statement was realized a little later, and it was then suggested on behalf of the grandfather that if the uncle was appointed guardian of the person of the infant, the infant might be kept in a house at Azimgunj. It is manifest however, that neither the grandfather nor the uncle is willing to take the infant into his family circle. Here it may be added that the uncle who has been proposed for appointment as guardian is a separated uncle, and it is not disputed that the grandfather and the uncle are not members of the same joint family. In view of all these facts, it is clearly not for the welfare of the infant that the uncle should be appointed guardian of his person.
5. Apart from these circumstances, however, there are two other factors for consideration. As already stated, the mother has nominated her sister for appointment as guardian, and the selection was obviously in the best interest of the minor. Her wishes in this respect should not be summarily disregarded, for though it may be conceded that the wishes of a deceased parent are by no means conclusive, considerable weight must be attached to the preference indicated by the mother Hall v. Storer 1 Y. & C. 556, In Re: Kaye 1 Ch. App. 387 : 12 Jur. (N.S.) 350 : 14 L.T. 388 : 14 W.R. 597 . As was observed in Ex parte Mountfort 15 Ves. 445 : 33 E.R. 822., in appointing a guardian the Court will pay great attention to the wishes of the father or the mother of the infant, and the Court will do so unless, as stated in Hartley v. Smith 9 Jur. (N.S.) 97 : 134 R.R. 773' and In Re: Wood (1868) 16 W.R. (Eng.) 164, such a, course would be disadvantageous to the infant. It has not been established in this case that the appointment of the aunt as guardian of the parson of the infant would be to his disadvantage; on the other hand, the circumstances stated all paint to the conclusion that it would be to his advantage.
6. There is a farther circumstance to be considered, namely, the wishes of the minor himself, to which regard is always paid, if he be of years of discretion Exparte Edwards 3 Atk. 519 : 26 E.R. 1099, Ex parte Birchell 3 Atk. 813 : 26 E.R. 1264, Pollard v. Bouse 6 Ind. Cas. 754 : 33 M. 288 at p. 293 : 8 M.L.T. 47 : (1910) M.W.N. 187 . The minor frankly stated in this Court that for the last ten years he has been brought up in the family of his aunt, that he has found in her family circle a comfortable and affectionate home, that his uncle has never taken the remotest interest in him, and, that consequently, ho does not feel attracted towards him in the least degree. To summarise, the welfare of the infant, tested from the point of view of the mode of life it has been his lot to live during the last ten years, the emphatically expressed wishes of his mother and his own decided preference, justifies the appointment of the maternal aunt in preference to the paternal uncle and the reasons which weigh in favour of such appointment become conclusive, when we remember that the uncle is practically a stranger to the infant, is by no means keen to undertake the responsibilities of guardianship and is in any event unable to take his nephew into his family circle and to exercise personal supervision over him.
7. It has been contended, however, that as the boy is now 15 years old, it is not desirable that he should have a pardahnashin lady as guardian of his person. We are unable to accept this contention as sound. It is, in our opinion, undesirable that at this stage the boy should be taken away from the healthy influences of home life. In so far as the education of the boy is concerned, the District Judge recorded an opinion on the 22nd May 1912, that so far as he was able to judge, his education had been satisfactory and that there was no necessity for change in the arrangements. There is no conceivable reason why under the guardianship of his aunt the infant should not be properly educated, if suitable direction is given by the District Judge for the appointment of a tutor We are further of opinion that it would be desirable to compel the guardian of the property of the infant to spend more money for his education than has been done in the past and it is obvious that as he continues to make progress in his studies, tutors better qualified and more experienced than those who have acted in the past will be required to look after him.
8. It has finally been suggested that the effect of the appointment of the aunt |as guardian of the person of the infant might be to accentuate the estrangement between him and the members of his father's family, and that the ultimate result might be not quite beneficial so far as the worldly prospects of the infant are concerned. In fact it has been broadly hinted that the estrangement might be of such a character as to make it impossible for the grandfather to leave more property to his infant grandson. We trust that the effect of the order which we propose to make will not be what is anticipated by the learned Vakil for the grandfather, and that the grandfather will accept, without feelings of resentment towards the infant, the order about to be made to secure the welfare of his grandson. There is no conceivable reason, however, why, although the aunt is appointed guardian of the infant, the grandfather and the uncle should not have free access to the child, and on behalf of the appellant an assurance has been given in this Court that such access will be freely allowed. Should, however, any practical difficulty or inconvenience arise in this respect, the District Judge will give suitable directions.
9. We may add that we are not unmindful that in the matter of appointment of a suitable guardian, a Court of Appeal is always reluctant to interfere with the discretion of the Court of first instance, except for strong reasons, Inre Kaye 1 Ch. App. 387 : 12 Jur. (N.S.) 350 : 14 L.T. 388 : 14 W.R. 597. In the present case, however, upon an examination of all the circumstances, we are constrained to take the view that the order made by the lower Court is not for the true welfare of the minor. We fully appreciate that the grandfather may regard it as a loss of family prestige that the appellant, a lady of a different family, should be appointed guardian of the person of even that infant grandson of his whom he has been constrained, by stress of circumstances, to treat as an outcaste. But we cannot take into account the feelings of the grandfather to the detriment of the infant.
10. The result is that this appeal is allowed, the order of the District Judge set aside, and the appellant appointed guardian of the person of the infant, Ranjit Singh. The costs of the appellant both here and in the Court below will come out of the estate of the infant; the costs of the respondents will be borne by themselves.