SYDNEY HUGH MCSWEENEY Vs. MARGARET ARBUTHNOT

JUDGEMENT

(1.) These two appeals have arisen out of an order which was passed upon two applications, one made by the appellant, Sydney Hugh McSweeney and the other by Miss Arbuthnot, Secretary to the Society for the protection of children in India. The former application was numbered as Case No. 144 and the latter as Case No. 118 under Act 8 of 1890. Appeal No. 83 has arisen out of the order in so far as it related to Case No. 118, and Appeal No. 84 has arisen out of the order as relating to Case No. 144. The application by Miss Arbuthnot was for being appointed guardian of the persons of three minor girls, Audrey, Beronice otherwise called Bella and Inez McSweeney. The application of the appellant purported to be one made under Section 25 of the Act, for an order on the authorities of the Loretto Convent where the girls were at the time, directing them to make over the girls to the appellant's custody. The learned Judge refused the application of the appellant and made an order in favour of Miss Arbuthnot, on her application, which runs in these words: The application made in Case No. 118 of 1928 is allowed and the Secretary of the Society for the Protection of Children in India will be appointed guardian of the persons of the minors.

(2.) It will be convenient to deal with the appeals separately.

(3.) As regards Appeal No. 84, which relates to the application made by the appellant under Section 25 of the Act, it may be stated that there may be a question as to whether such an application comes within the purview of Section 25 of the Act. It is true that the definition of the word "guardian" as given in Section 4 of the Act, is that it means a person having the care of the person of a minor or of his property, or of both his person and property. But it may be a question as to whether Section 25 was intended to apply to the case of a person who has not been declared or appointed a guardian under the provisions of the Act. This we say notwithstanding the decision of the Madras High Court in the case of Wallace Sita Boi v. Wallace Radha Boi [1919] 51 I.C. 236.