KONTHALATHAMMAL; THANGASWAMI PILLAI Vs. SOUNDARATHACHI

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.

(2.) 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 Guardian 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. Tarim Sunker Ghose (1892) I.L.R. 19 C. 487, Pakhwanti Devi V/s. Indra Narain Singh (1895) I.L.R. 23 C. 201, In re Harkha (1895) I.L.R. 20 B. 667 and Imtiaz-un-nissa V/s. Anwarullah (1898) I.L.R. 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 1 respondent's appointment was a nullity, there was no necessity 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).

(3.) 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.