Chitty and N.R. Chatterjea, JJ.
1. This is an appeal by Musummat Jaiwanti Kumri from an order of the learned District Judge of Bhagalpur refusing her application to be appointed guardian of the property of her minor sons, Babu Jagdish Prosad and Babu Jogesser Prosad.
2. It appears thai along with the petition of Musummat Jaiwanti Kumri, the mother of the minors, the District Judge had before him a petition of Musummat Champabati Kumri, the grandmother of the minors, that she should be appointed. On the 22nd of November, 1910, the ladies were agreed that Babu Dalip Narain Singh should be appointed guardian of the property of the minors. That gentleman was asked whether he would undertake the charge but lie declined. The learned District Judge then without holding any enquiry into the respective merits of the applications of the mother and the grand-mother, made an order, which is in form a permanent Order C but which from his letter would appear to be a temporary order, appointing the Nazir of his Court to be the guardian of the property of the minors. He appointed the mother, Musummat Jaiwanti Kumri, to be the guardian of the person of the minors, and to that no objection is taken. It is conceded by the learned pleaders for both the ladies that the District Judge's order cannot possibly stand. A Court has no power to make an order appointing a guardian of a minor, except on a substantive application (see Section 8 of the Guardians and Wards Act, 1890). The appointment, 'therefore, of the Nazir was ultra vires.
3. With regard to the refusal of Musummat Champabati Kumri's application, she has filed no appeal against the order of the learned District Judge, and there is therefore no application of hers at present before the Court. With regard to the application of Musummat Jaiwanti Kumri, the mother, it is not seriously contended that there ought not to be a proper enquiry into her case. Section 13 distinctly prescribes that 'on the day fixed for the hearing of the application, or as soon afterwards as may be, the Court shall hear such evidence as may be adduced in support of or in opposition to the application.' The learned District Judge has as yet taken no evidence on either side. In his order of the 22nd of November he remarks that 'both the ladies are purdunashins and are for that reason not very suitable guardians for a large property like that in question in this case.' We ought to point out that the mere fact of the mother being a purdanashin lady is no obstacle to her being appointed guardian. It is true that a purdanashin lady may not be able to personally supervise the management of the property, but the safe custody of the property and its due administration may be sufficiently guaranteed by security being taken from the proposed guardian by the Court.
4. The grandmother, Musummat Champabati Kumri, has made very definite allegations against her daughter-in-law in her petition of objection. Those should be enquired into by the District Judge, recording the evidence on both sides.
5. With these remarks we set aside the order of the learned District Judge and send down the case for him to deal with the application of Musummat Jaiwanti Kumri on the merits.
6. Each party will bear his or her own costs of this appeal.
7. We direct that the record be sent down at once.