KONTHALATHAMMAL Vs. THANGASWAMI PILLAI

JUDGEMENT

(1.) The first and important of the two orders before us was passed by the District Judge of South Arcot on a petition for the removal of 1 respondent from her position as testamentary guardian of the person and property of a minor Thirugnanavalli Ammal, for the appointment of the petitioner, or any other fit person in her stead and for connected reliefs. Against that order there is an appeal by the petitioner and also a revision petition. I deal first with the respondent's preliminary objection to the appeal, that this order, consisting in a refusal to remove a guardian is not appealable under Section 47, Guardians and Wards Act (VIII of 1890), and is final under Section 48. The order, as it stands, is certainly of that character, its conclusion being that the Court is not prepared to remove the guardian on any of the grounds stated in the petition and that the petition is dismissed; and the objection is supported by authority which I am prepared to follow, Mohima Chunder Biswas V/s. Tarini Sunker Ghose (1892) 19 Cal. 487, Pakhwanti Devi V/s. Indra Narain Singh (1895) 23 Cal. 201, In re Harkha (1895) 20 Bom. 667 and Imtiaz-un-nissa V/s. Anwarullah (1898) 20 All. 433. But the objection has been met by the arguments, (1) that the order is really one declaring a testamentary guardian under Section 7(1)(b) and, as such, appealable under Section 47(a); and (2) that as the right of a Hindu to appoint a testamentary guardian is not recognised by the law and 1st respondent's appointment was a nullity, there was no neoessity for the Court to remove, or to refuse to remove her and its order must be regarded simply as one refusing to appoint petitioner, which is appealable under Section 47(a).

(2.) The first of these arguments can be dealt with shortly. It rests solely on the fact that the lower Court in its order has referred to 1 respondent as the testamentary guardian, has affirmed her fitness for the appointment and found against the conduct alleged, as disqualifying her for it. But all that was relevant to the prayer for her removal and did not amount to the making of a declaration, which was not made in terms, which neither party had asked for, which the lower Court was not conscious that it was considering, and in order to which the procedure enjoined in Civil Rules of Practice, Chapter XI, was not employed.

(3.) The second argument calls for fuller discussion notwithstanding that, as I shall bold, there is ground, in any event, for interference with the order before us in revision, because a conclusion against the legality of 1 respondent's appointment as guardian will be relevant, not only to the question whether that order is appealable, bat also to the merits in the further enquiry to be held, since, if she has not been legally appointed, the question will not be of her right to retain the appointment, but only of her eligibility for it in competition with the petitioner or any other candidates. It is not disputed that by a will, dated 6-7-15 the father of the minor left her his separate property, worth (it is said) several lakhs of rupees, and purported to appoint 1 respondent guardian of her person and property. But it is argued that the terms of a decision of a Full Bench of this Court; in Chidambaram Pillai V/s. Rangaswami Naicker (1918) 41 Mad. 561 require us to hold generally against the right of a Hindu to appoint a guardian of a person or property of his child by will, not only when the property is, as it was in that case, ancestral, but also when it is, as in this case, separate. It is not disputed that this is the only authority, by which the argument can be supported, and we must therefore scrutinize its terms to see whether they entail the acceptance of any principle applicable to the present case. Such scrutiny is the more clearly required, when, as appears from the fuller report of the arguments in the Madras Law Journal 34 M.L.J. 381 the experienced vakil for petitioner, who attacked the appointment, conceded that it would have been valid, if the property in question had been separate. It is further to be observed that the decision does not deal with guardianship of the person, except in the statement of Coutts- Trotter, J., that the appointment of such a guardian may be a natural right vested in the father.