The Judgment of the Court was as follows:

Biswas, J.:— This is an appeal on behalf of the Plaintiffs in a suit for a declaration that certain documents are void and inoperative in law and not binding on them. The learned Subordinate Judge of Alipore who tried the suit in the first instance decreed the same, but the learned District Judge dismissed it on appeal.

2. The documents are three in number: one a potta granting a mourashi mokarari lease of the Plaintiff's eight annas share in certain properties to the Respondent Sailendra Nath Shee, another, a contemporaneous deed, assigning the back rents of the properties to the said lessee, and the third, an indemnity bond, securing the lessee against a possible repudiation of the lease by one of the executants who was stated to be a minor. The Plaintiffs are two brothers, Jiban and Ratan, and in the documents one of them, Jiban was represented as of full age, while the other, Ratan, was described as a minor living under the guardianship of the mother, Bilashini, as his natural guardian. Jiban executed the documents for himself, while Bilashini as natural guardian executed them on behalf of Ratan.

3. In the plaint the Plaintiffs made the case that they were both minors at the date of execution. The trial Court accepted this case, and in that view held that Jiban was not at all represented by a guardian in the transactions, and was not, therefore, bound by them. As regards Ratan, the Court was of opinion that he was not duly represented, as his mother was not competent to act for him at the time. It appears that a guardian had been previously appointed by the Court under the Guardians and Wards Act in respect of the person and property of either of the brothers, but that guardian had ceased to function at the date the documents were executed, and no new guardian had been appointed in her place. According to the learned Judge;, this, however, could not have the effect of reviving the powers of the mother as natural guardian. In the result, the documents were declared to be inoperative against Ratan as well, and the suit was decreed in favour of both the Plaintiffs. In the view which the learned Judge took, it was not necessary for him to consider the other grounds on which the documents were impugned, namely, that they had been executed under undue influence and fraudulent misrepresentation, and without legal necessity.

4. On appeal, the learned District Judge reversed the decision. Upon the evidence he found that Jiban had come of age at the material date, and as for Ratan, he held that upon the cessation of the authority of the certificated guardian, the powers of the natural guardian revived under the law, and so Bilashini was quite competent to execute the documents on behalf of the minor as his natural guardian. On the merits, the Court found against the Plaintiffs both as regards the case pf undue influence and fraudulent misrepresentation and that of absence of legal necessity. The suit was accordingly dismissed and hence the present appeal.

5. In support of the appeal, Dr. Basak raised three points. In the first place, he challenged the finding about Jiban's majority. Secondly, he contended that the facts found by the learned District Judge were insufficient in law to establish such “benefit to the estate” as could support the transactions. Thirdly, he maintained that once a guardian was appointed by the Court under the Guardians and Wards Act, the natural guardian was superseded for good, and his or her powers could not revive upon the removal or death of the certificated guardian, even if no successor was appointed by the Court in his place.

6. As regards the first point, it is sufficient to state that though Dr. Basak raised it in his opening, he made no attempt to support it in the course of his arguments. As regards the second, all that need be said is that even if the findings may be held to fall short of establishing the real existence of legal necessity, they are sufficient to show that the lessee had made bona fide inquiry as to the existence of such necessity and satisfied himself that such necessity existed. There is no reason, therefore, why the case should not be regarded as coming within the second part of the rule which was laid down in this respect in the well-known case of Hanooman Persad Panday v. Mussamat Babooee(1). After stating that the power of the manager for an infant heir to charge on estate not his own is under the Hindu Law a limited and qualified power, and can be exercised rightly in a case of need, or for the benefit of the estate, and after explaining that the actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it, in the particular instance, is the thing to be regarded, their Lordships of the Judicial Committee proceeded to observe:

“Their Lordships think that the lender (the transaction there was a loan) is bound to inquire into the necessities for the loan, and to satisfy himself as well as he can, with reference to the parties with whom he is dealing, that the Manager is acting in the particular instance for the benefit of the estate. But they think that if he does so inquire, and, acts honestly, the real existence of an alleged sufficient and reasonably credited necessity is not a condition precedent to the validity of his charge………”

7. The finding here is that the Respondent did inquire, and honestly believed that the transaction which Bilashini was entering into on behalf of her minor son was for the benefit of his estate.

8. The only question that calls for decision in the appeal is the third point raised by Dr. Basak, which, it is admitted, will affect the share of Ratan only. The question is not free from difficulty, and strange as it may appear, it is not covered by authority, though cases like this must be of frequent occurrence.

9. I have had the advantage of reading the judgment prepared by my learned brother, who has dealt with this point at great length; and I think there is a good deal of force in what he says, both on general principles and on the construction of the relevant provisions of the Guardians and Wards Act. He takes the view that upon the appointment of a guardian by the Court, the powers of the natural guardian must be held to have ceased for good, and it was not accordingly competent for Bilashini as natural guardian to act for or represent her minor son in the disputed transactions.

10. My learned brother seems to think that once the Court appoints a guardian of a minor, the Court, as representing the sovereign, who is regarded in law as the universal guardian of all infants, takes over the minor under its care and control, and it should not, therefore, be permissible thereafter for any other person to interfere with such care and control. Such care and control are exercised through a guardian whom the Court appoints, and even if the person whom it appoints ceases to function by reason of death, removal, discharge or otherwise, neither the authority nor the responsibility of the Court in relation to the minor ceases, but the minor continues to remain under the Court's care and control as before, and no one other than a person appointed by the Court again can, therefore, function as his guardian. In other words, the appointment of a guardian by the Courts operates as a supersession of the natural or de facto guardian, and a guardian once superseded cannot become clothed with the capacity to act as guardian again merely because the guardian appointed by the Court goes off the scene. My learned brother shows by reference to the provisions of the Guardians and Wards Act that that is also the legal position contemplated by the statute.

11. Cogent as the reasoning may appear to be, and hesitate as I should to dissent from the view expressed by my learned brother, I am not wholly satisfied that there may not be weighty considerations bearing in the opposite direction. Dealing with the matter under the Guardians and Wards Act, it may be conceded at once that the effect of the appointment of a guardian is the supersession of the natural guardian, if any. Sec. 7 (2) in fact provides that a guardianship order made under sec. 7 (1) shall imply the removal of any guardian who has not been appointed by Will or other instrument, or appointed or declared by the Court. But the question is whether the supersession of the natural guardian is effective for all time, or operates only go long as the guardian appointed by the Court remains in office.

12. On what grounds is the natural guardian superseded? Is it because the Court holds that he is absolutely unfit, or merely because by comparison he is considered to be less fit than the person whom the Court selects? I am not so sure that the fact that the Court appoints another person as guardian, though the natural guardian is there, necessarily implies an adjudication that the natural guardian is absolutely unfit. Sec. 17 provides that in appointing the guardian of a minor the Court shall be guided by what appears to be for the welfare of the minor, and that being the test, it should be possible for the Court to appoint a person other than the natural guardian, not because in its opinion the natural guardian is unfit, but because in character and capacity the other person appears to be the better of the two. It is only in certain cases specified in sec. 19 that the Court may not supersede a father or a husband among natural guardians, if in its opinion he or she is not unfit to be guardian. This shows that in other cases the Court may appoint a person other than the natural guardian, even though it considers that the natural guardian is not altogether unfit.

13. My learned brother thinks that the implied removal of the natural guardian under sec. 7 (2) must have the same effect as an express order of removal made under sec. 39. It will be observed that neither sec. 39 nor any other provision of the Act contemplates the express removal of a natural guardian. Obviously, there must be some significance in barring express removal, and providing only for implied removal, in the case of a natural guardian. If implied removal of the natural guardian upon the appointment of the certificated guardian was intended to have the same effect as express removal, the legislature would undoubtedly have authorised express removal of a natural guardian. Sec. 7 (2) might in that case have also required that in making a guardianship order under sec. 7 (1), the Court should at the same time make a formal order removing every other guardian not appointed by Will or other instrument, or not appointed by the Court. But that is not what we find, and this suggests that the legislature intended a distinction between implied removal and express removal.

14. I agree, as I have pointed out, that the ultimate test in all guardianship matters must be the welfare of the minor. Suppose that the welfare of the minor demands that a natural guardian who has been once passed over should not be permitted to function again, even upon the cessation of the powers of the certificated guardian by whom he was passed over, the statute has made adequate provision by which such a result could be secured. All that the Court need do in such a case is to exercise its power under sec. 42 of making a new appointment forthwith as soon as the guardian previously appointed will have ceased to function. Under sec. 8 of the Act, an order of first appointment of a guardian cannot be made except on the application of a person interested, but sec. 42 expressly provides that when a guardian appointed by the Court dies or is removed or discharged, the Court may appoint a successor, acting suo motu. In most cases, as sec. 41 will show, the power of a certificated guardian cannot cease without the knowledge or without an express order of the Court. The Court should, therefore, be always in a position to prevent the automatic revival of the powers of a superseded natural guardian, if such revival is deemed to be prejudicial to the best interests of the minor. There is no point in saying that the Court may not sometimes be aware when the powers of a certificated guardian cease. Such an assumption cannot be entertained at all, for on the theory that in appointing a guardian the Court assumes full responsibility for the care and control of the minor, as representative of the sovereign, it would imply a dereliction of duty on the part of the Court not to keep itself informed about a fact affecting the welfare of the minor. No argument can, therefore, be allowed to be founded upon such a basis.

15. It need only be added that in case the natural guardian, upon revival of his powers on the cessation of the powers of the certificated guardian, acts in a manner prejudicial to the interest of the minor, the minor will not be without a remedy. The minor himself may repudiate the act on attainment of majority, or the Court itself may help to secure the remedy by appointing another guardian, upon whose appointment, it is not disputed, the powers of the natural guardian would again cease. It cannot be said, therefore, that the welfare of the minor necessarily demands the acceptance of such a view as my learned brother suggests.

16. Be that as it may, I do not propose to pursue the matter further, as I have no desire to press my views to the point of dissenting from the judgment of my learned brother, but am content merely to set out some of the considerations which occur to me as having a bearing on the question.

17. In the result, I agree in the order proposed by my learned brother and the appeal will be disposed of accordingly.

Das, J.:— This is an appeal by the Plaintiffs in T.S No. 13 of 1939 from the decision of the Additional District Judge of 24-Parganas dated the 20th February, 1942, reversing the decision of the 3rd Subordinate Judge of Alipur and dismissing the suit. The facts are shortly as follows:—

The Plaintiffs, Jiban and Ratan, who are the Appellants before us, are two brothers and were owners of an undivided half share in certain properties. The pro forma Defendant Respondent Bilashini Dassi is their mother. In 1924, their paternal grand-mother Khantomoni Dassi was appointed the guardian of their persons and properties by the District Judge of 24-Parganas under the Guardians and Wards Act (Act VIII of 1890). By an order made by the District Judge m December, 1929, Khantomoni was removed from office for having failed to submit accounts. No other guardian, however, was appointed by the Court in the place of Khantomoni. In or about 1938–1939 Khantomoni died. Shortly after her death, on the 7th Ashar, 1345 B.S corresponding to the 22nd June, 1938, to be precise, an agreement to lease was executed by Jiban and Bilashini, the latter purporting to act as the natural guardian of Ratan, in favour of the principal Defendant Respondent Sailendra Nath Shee and one Kishori Mohan. Thereafter on the 26th Aswin, 1345 B.S corresponding to 13th October, 1938, five several documents were executed, namely (1) a potta executed by Jiban and Bilasini, the latter purporting to act as guardian of Ratan, in favour of Sailendra Nath Shee, granting a perpetual lease of their share in the properties for a selami of Rs. 3,000 and at a fixed rental of Rs. 2,119, (2) a kabala similarly executed assigning to Sailendra arrears of rent which are said to amount to over Rs. 20,000 for a consideration of Rs. 2,750, (3) an indemnity bond also similarly executed indemnifying Sailendra, (4) a kabuliyat executed by Sailendra in favour of Jiban and Ratan, and (5) a kistibandi mortgage deed executed by Sailendra in favour of Jiban and Ratan charging these very properties with the repayment by 3 equal annual instalments of Rs. 3,000, that is to say, selami of Rs. 3,000 and price Rs. 2,750 for the back rents less Rs. 1,750 retained for payment of superior landlord's dues and Rs. 1,000 paid down in cash. In all these documents Jiban was described as a person of full age.

18. The present suit was filed on the 22nd February, 1939, by Jiban and Ratan, both described as minors by their paternal uncle and next friend Rakhal Das Dutt, the owner of the other half-share in the properties. It was alleged that at the date of the execution of the above-mentioned documents and at the date of this suit both the Plaintiffs were minors, that the potta, the kabala and the indemnity bond were not for the benefit of the minor Plaintiffs, that they had been obtained from Jiban and Bilashini by the exercise of undue influence and without properly explaining the scope and effect thereof to them, and that Bilashini had no authority as natural guardian to execute any of those documents on behalf of Ratan or to bind his estate, as a guardian of his person and property had been appointed by the Court and as after the removal of that guardian the present next friend was the de facto guardian managing the properties of the two minors. The Plaintiffs asked for a declaration that their interests in the properties had not in any way been affected by the said potta, kabala and indemnity bond, and that the same were void and illegal.

19. The learned Subordinate Judge held, inter alia:—

(1) that both the Plaintiffs were in fact minors at the date of the execution of those documents;

(2) that upon the appointment of the grand mother Khantomoni as the guardian of the two minor Plaintiffs, Bilashini's rights and powers as mother and natural guardian were extinguished, and that although Khantomoni was afterwards removed from office and no other guardian was appointed by the Court, the rights and powers of Bilashini as mother and natural guardian could not revive and she was not at all competent to represent Ratan in the transactions;

(3) that the Defendant did not act in good faith and procured these documents, which were totally prejudicial to the interests of the minor, by imposing on the mother and the same were void ab initio.

20. In view of these findings the learned Subordinate Judge did not go into Issue No. 7 which raised the question of legal necessity for the execution of those documents. In the result the Subordinate Judge decreed the suit as prayed.

21. The Defendant Sailendra appealed. The learned Additional District Judge held;

(1) that Jiban and Bilashini executed the documents with full knowledge of their contents and after having received independent advice;

(2) that Jiban was more than 21 years of age at the time of the execution of the documents in question;

(3) that on the appointment of Khantomoni as the guardian the rights and powers of Bilashini as mother and natural guardian were not extinguished for ever, but were only kept in abeyance, and that as soon as Khantomoni was removed and until a successor was appointed by the Court, Bilashini as mother and natural guardian had full power to enter into contracts and to do all other acts which were reasonable and proper for the protection and benefit of the minor's property; and

(4) that these transactions were for the benefit of the minor's estate, and in any event the Defendant had made reasonable enquiries as regards the necessity of these transactions and was satisfied that there was sufficient and reasonable legal necessity, and so these transactions were valid and binding on the minor's estate.

22. On these findings the learned Judge allowed the appeal, reversed the decision of the Subordinate Judge and dismissed the suit with costs. It is against this decision of the lower Appellate Court that the present appeal has been taken.

23. Dr. Basak in opening the appeal conceded that the Appellant Jiban would be bound by the finding of the lower Appellate Court to the effect that at the date of the execution of the impugned documents he had attained majority, unless he could show that that finding was vitiated fey some error of law. No attempt, however, was made at any subsequent stage of the opening argument of Dr. Basak, or in the reply of his learned junior, to point out any error of law on which that finding had been based. In these circumstances we must accept and proceed on that finding of fact as correct.

24. As regards the Appellant Ratan, two points of law have been argued before us:

(1) Whether the removal of Khantomoni from the office of the guardian under order of Court and the absence of any order of Court appointing her successor, revived the rights and powers of Bilashini as the mother and natural guardian of Ratan, so as to have entitled her to represent and act for him, and

(2) whether the facts found by the lower Appellate Court are sufficient in law to establish the existence of legal necessity or to amount to benefit of the minor's estate or can otherwise support the transactions in question.

25. As to (1): revival of powers of the natural guardian: Dr. Basak relied on sec. 7 (2) of the Guardians and Wards Act, 1890, and contended that the order made by the District Judge under that section appointing Khantomoni as the guardian of her minor grandsons Jiban and Ratan implied the removal of Bilashini. The order, argued Dr. Basak, operated to extinguish the rights and powers of Bilashini as the mother and natural guardian, and consequently the decision of the learned Subordinate Judge was well founded. Dr. Pal on the other hand, contended that the learned Additional District Judge was right in holding that the order made by the Court under sec. 7 appointing Khantomoni as guardian did not extinguish the rights and powers of Bilashini as the mother and natural guardian for all time to come, but only had the effect of keeping them in abeyance during the period the certificated guardian functioned as such. Dr. Pal's contention was that the mother, Bilashini, derived her rights and powers as the natural guardian under the Hindu Law, which was the personal law of the parties concerned. He argued that there was nothing in the Guardians and Wards Act which permanently destroyed or extinguished these rights and powers, but that on the contrary the policy of the Guardians and Wards Act was to preserve the personal law. He referred us to secs. 6, 10 and 17 of the Act. No judicial decision directly bearing on the point has been cited before us, and the question raised on this appeal appears to be one of first impression.

26. As the transactions in question have been sought to be supported by the lower Appellate Court and by Dr. Pal before us on the strength of the principles of Hindu Law which, it is claimed, have been preserved by the Guardians and Wards Act, 1890, it is necessary, in the first instance, to enquire as to what the indigenous Hindu Law provides in this behalf. Under the Hindu Law, as under the English Law, the Crown is regarded as the parens patriae. “By the Hindu Law, the ruling power is, in every instance, whether the natural guardian be living or dead, recognised to be the supreme guardian of the property of all minors, whether male or female. The ruling power is now represented by the Courts of Law.” (Trevelyan on Minors, 6th Edn., p. 49). Verse 27 of Ch. VIII. of Manu, referred to in Trevelyan, says as follows:

“The property of a student and of an infant, whether by descent or otherwise, let the King hold in his custody, until the owner shall have ended his studentship, or until his infancy shall have ceased in his sixteenth year”.

27. The following observations of Macpherson, J., in Maharanee Ram Bunsee Koonwaree v. Maharanee Soobh Koonwaree(2), also referred to in Trevelyan, are useful:

“It rests with the sovereign to take care of the infant and his property and to appoint a guardian for the purpose [Manu, Chapter VIII, Verse 27, Colebrooke's Digest (Madras Ed. II, 574, 575)]. It belongs to the courts as representing the sovereign to protect the rights of the minor. There is very little in the Hindu Law on the subject; and the courts when no distinct rule is to be found, must exercise their discretion as may be most advantageous for the interests of the (minor, being guided by such principles of Hindu Law as may be applicable to the case, and selecting at the same time the fittest among the minor's relations, if there be suitable persons of that class. The practice has always been to give preference to the father, then to the mother (whose right, as indeed also the right of the father and others, though long and we say universally acknowledged, is one of practice rather than positive law, Colebrooke's Digest, Madras Edition II, 576)—and after the mother, to the male paternal relations”.

28. The rights of the father, and of the mother after the death of the father, over their minor child are, therefore, not derived from any positive rule of Hindu Law, but arise out of necessity and are sanctioned by practice and have been so long and universally acknowledged as to be now indisputable. English Law also recognises the rights of the father, and after his death without appointing a testamentary guardian, of the mother as natural guardian. Courts of law have from early times recognised the rights of parents over the person of the child, because these rights are necessary for the preservation of the natural order and course of the family life which is the foundation of society. These rights include the right of custody, of reasonable correction and chastisement, of directing the education of the child and the like. The rights of the natural guardian are not, however, confined to the person of the child, but extend over his property also. The same consideration of necessity which gives to the natural guardian the powers over the person of the minor gives to him the powers over the minor's property, for the minor is just as incapable of managing his property as he is of protecting his person. The rights of the natural guardian over the property of the minor are, however, not absolute, but are qualified and limited, as explained by the Judicial Committee to whose decision I shall refer in greater detail hereafter. It should, however, be remembered that these natural rights of parents are given to them not for their own benefit but for the purpose of enabling them to discharge their natural duties towards the child. As I said in In the matter of, Lovejoy Patel(3) the law recognises the natural rights of the parents because it also recognises the natural duties of the parents. It is the natural affection of the parents for the child which is the security for the performance of the duties towards the child, and the performance of the duties alone qualifies the parents to claim the natural rights. It is their natural affection which makes them the natural guardians. The rights of the parents are sacred rights, because their duties are also sacred duties. If for any reason the parents render themselves unable or unfit to perform the sacred duties, they become unnatural parents and cease to be natural guardians, and can no longer legitimately claim the rights of natural guardians. In other words, the natural guardians lose their rights when they become unfit to perform their sacred duties. This unfitness, as we shall see, may be brought about by a variety of causes which have been held by the Court to disqualify the natural guardians and which I shall discuss hereafter. Such, I apprehend, are the nature, scope and limits of the rights of the natural guardians under the Hindu Law as administered by the Courts of law. I now pass on to consider the position of the natural guardians in the light of the provisions of the Guardians and Wards Act.

29. The Guardians and Wards Act, as its full title and preamble state, is an Act to consolidate and amend the law relating to guardian and ward. The general principles of construction of a consolidating code as laid down in the case of Bank of England v. Vagliano Brothers(4) and followed in numerous decisions of Courts of this country, are well known. Said Lord Herschell at pp. 144-145:

“I think the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of law, and not to start with inquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view”.

30. Bearing these principles in mind, I proceed to examine the provisions of the Act.

31. Sec. 5 of the Act empowers the parents of a minor who is a European British subject to appoint a guardian of the person or property of the minor by Will or other instrument to take effect on the death of the person appointing. Sec. 6 saves the power to appoint a guardian of the person or property or both, which is valid by the law to which the minor is subject. The capacity of Hindu and Mahomedan fathers to appoint by their Wills guardians for their minor children after their deaths has been recognised by the Legislature since the date of the Permanent Settlement. This section, therefore, saves the right of a Hindu father to appoint a testamentary guardian. This saving, however, is subject to the power given to the Court under sec. 39 to remove the testamentary guardian for reasons specified therein. It is to be noted, further, that this section does not in terms purport to preserve any of the other rights of the Hindu father as a natural guardian. In short, this section preserves only the power of appointment of the father, but not his own right of acting as natural guardian. Sec. 7 (1) authorises the Court to make an order appointing a guardian of the person or property or both of a minor or declaring a person to be such a guardian. The only condition laid down is that the Court must be satisfied that it is for the welfare of the minor that an order should be made. Sec. 17 specifies the matters to be considered by the Court in appointing the guardian. The welfare of the minor is pre-eminently the paramount consideration for the Court. In considering what will be for the welfare of the minor, the Court has to have regard to the personal law by which the minor is governed and the other matters specified in sub-sec. (2) of that section. It is to be noted that the personal law is not the determining factor, and consequently the rights of the parents under the personal law are not sacrosanct or supreme. The supreme test for the appointment of a person as a guardian under the Guardians and Wards Act is the welfare of the minor. If the welfare of the minor so demands, the rights of parents, who are, in the opinion of the Cpurt, unfit, may be brushed aside. It follows, therefore, that the rights of natural guardians under the personal law have not been preserved in the sense that they must be given effect to, but have been relegated to a secondary position and the welfare of the minor has been put in the forefront. Then I pass on to sec. 19 which specifies the cases in which the Court is not authorised to appoint a guardian. Thus, the Court is not to appoint a guardian of the property of the minor whose property is under the superintendence of the Court of Wards. Nor is the Court authorised to appoint a guardian of the person of a minor in any of the three cases specified in cls. (a), (b) and (c). The language used in this section is inartistic and has given rise to a divergence of judicial opinion. In some cases it has been held that where the parties are not European British subjects and the father is not unfit, the Court has no jurisdiction at all to appoint or declare even the father as the guardian of the person of the minor. In some cases it has been held that the prohibition enacted in this section is applicable even when the applicant is himself the father. In some other cases the Courts have held that this section does not apply where the father is himself the applicant, but only applies where somebody else applies to be appointed guardian. It is not necessary for my present purpose to enter into the details of the reasonings adopted by different Judges in different cases or to express any opinion thereon. For the present and without committing myself, I assume the correctness of the extreme view mentioned above, namely, that the Court has no jurisdiction to appoint a guardian of the person of a minor whose father is not, in the opinion of the Court, unfit to be the guardian of the person, and proceed to examine what its effect is on the rights of the natural guardian under the personal law. Three things are to be noted:

(1) This section preserves the rights of the husband and of the father, but not of anybody else, e.g, the mother.

(2) This section preserves the rights of the husband and of the father in respect only of guardianship of the person of the minor, but not in respect of that of his property.

(3) This section preserves the rights of the husband and of the father in respect, of the guardianship of the person of the minor, only if he is not, in the opinion of the Court, unfit to be such guardian, but it does not preserve such rights, if the husband or the father is, in the opinion of the Court, unfit to be such guardian.

32. To summarise, it is clear that the Guardians and Wards Act does not purport to preserve all the rights of all natural guardians under the Hindu Law in their original form. The savings only relate to:

(1) the right of the father to appoint a testamentary guardian (sec. 6) subject to the power of removal given to the Court (sec. 39);

(2) the right of the husband and the father to be the guardian of the person only of the minor, provided he is not unfit (sec. 19).

33. No other right of the father and none of the mother under the Hindu Law is saved in the sense that the Court must give effect to it. The welfare of the minor is the paramount consideration, and the rights under the personal law are to be taken into consideration only for the purpose of ascertaining the welfare of the minor. It is significant that in the Guardians and Wards Act there is no general saving of the rights of the natural guardian under the personal law, and no provision, except the very limited provisions of secs. 6 and 19, that the Courts must apply the personal law, such as there is in Act IV of 1874 as amended by Act XII of 1878 which applies to the Punjab, Act XX of 1875 which applies to Central Provinces, and Reg. III of 1877 which applies to Ajmere Merwara. Under those Acts and the Regulation guardianship is one of the matters in which the personal law is expressly required to be administered by the Courts in those Provinces.

34. There is nothing, however, in the Guardians and Wards Act which compels the natural guardian to take out a certificate of guardianship from the Court. The natural guardian may function and perform his duties and exercise his powers unhampered by anybody as long as the matter is not brought before the Court and his unfitness established before it. But the natural guardian may, If he chooses, come to Court and clothe himself with the powers and privileges of a certificated guardian, except perhaps in the case of the father in the matter of the guardianship of the person only, falling within sec. 19 about which there is divergence of judicial opinion. Further, the question of guardianship of the person or property or both of a minor may be brought up before the Court on an application under sec. 7. This application may be made by any person who comes within any of the several categories qf persons specified in sec. 8. The applicant must, under sec. 10, give certain particulars including particulars as to the persons who may be interested in the minor and the question of his guardianship. Sec. 11 lays down the procedure to be followed on the admission of the application. The provision for service of the notice mentioned in that section is obviously intended to give an opportunity to all persons, including the natural guardian, unless such person is the applicant, to come in and put forward his claim. Sec. 13 enjoins the, Court to hear such evidence as may be adduced in support of or in opposition to, the application. After hearing the evidence and the submissions and contentions of the parties appearing on the application, the Court may, under sec. 7, make an order appointing or declaring a guardian of the person or property or both. In making the order the Court, under sec. 17, 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, and must take into consideration the several matters specified in sub-sec. (2) of that section.

35. When the matter is brought before the Court on an application under sec. 7, and notice is given to the natural guardian, he may appear or may not appear. If he appears, he may put forward his claim to be appointed or may decline to act or may waive his right by consenting to some other person, who is otherwise fit being appointed. All these eventualities have, therefore, to be considered.

36. When the natural guardian appears and puts forward his claim, he has no special privilege except that his fitness being established he may and generally does get a preference over others. But he must first pass the test of fitness for looking after the welfare of the minor. If he succeeds in establishing his fitness then and then only does he get a preference, but not otherwise. It will not do for him to come in and say that he is the natural guardian under the personal law and must, therefore, be left or put in charge of the person or property or both of the minor. He must satisfy the Court that he is fit to perform the duties of a guardian. If on evidence adduced before it the Court finds that he is unfit for the purpose, then the Court must hold that he has lost his natural rights under the personal law, and for the sake of the welfare of the minor he must be passed over. It is suggested that it is possible that on the evidence the Court may find that the natural guardian is not unfit yet it may not appoint him be-cause the rival claimant is fitter than he is and therefore he is passed over not for any unfitness, In such a case if the natural guardian is the father, then the Court under sec. 19 cannot ap-point the other person. If, however, the natural guardian is the mother, there is nothing to prevent the Court from appointing the fitter person, In such a case I would be prepared to say that the mother is in reality found to be unfit. Fitness is a relative term. The mother may be generally fit in an ordinary sense but when the Court thinks, having regard to the circumstances, e.g, the extent of the properties or the difficulties of management, that another person will be fitter than the mother to discharge the duties, the mother must be regarded as unfit for the discharge of those duties, although in a general way she may not be otherwise unfit. In other words, inspite of her general fitness, the mother who may be a pardanashin lady may be unfit for the particular job. The appointment of the other person must be really on this basis and the mother is passed over really for unfitness, having regard to the circumstances. Unfitness need not necessarily imply any moral turpitude.

37. The unfitness which entails the loss of the natural rights of the father or mother may be due to a variety of causes. Thus, if the natural guardian be found to be guilty of severe and systematic cruelty to the minor or of gross misconduct like habitual drunkenness, debauchery or immorality of character, involving distinct danger of the minor being injured or contaminated, he will certainly not be fit to be entrusted with the care and custody of the person of the minor. If he is found to have been wasting or misappropriating the properties of the minor, surely he cannot be left or put in charge of the properties of the minor. The causes which bring about unfitness need not, as I have said, always involve any moral turpitude. If he is a person of weak intellect incapable of managing his own affairs, he cannot be expected to manage the affairs of the minor. If the natural guardian is a pardanashin lady and cannot properly manage the big estate, she is to that extent unfit, although she may be fit otherwise. Again if the natural guardian is a person who has renounced the world or entered into any religious order so as to be civilly dead, the Court must appoint somebody else. Under the indigenous Hindu Law a loss of caste used to involve unfitness, although it does not do so after the passing of Act XXI of 1850. Even waiver of right out of the best of motives may cause the loss of the right of the natural guardian. Said their Lordships of the Judicial Committee in Besant v. Narayaniah(5):

“There is no difference in this respect between English and ‘Hindu Law’. As in this country, so among the Hindus, the father is the natural guardian of his children during their minorities, tout this guardianship is in the nature of a sacred trust, and he cannot, therefore, during his life-time substitute another person to be guardian in his place. He may, it is true, in the exercise of his discretion as guardian, entrust the custody and education of his children to another, but the authority he thus confers is essentially a revocable authority, and if the welfare of his children require it he can, notwithstanding any contract to the contrary, take such custody and education once more into his own hands. If, however, the authority has been acted upon in such a way as in the opinion of the court exercising the jurisdiction of the Crown over infants, to create associations or give rise to expectations on the part of the infants which it would be undesirable in their interests to disturb or disappoint, such Court will interfere to prevent its revocation; Lyons v. Blenkin(6)”.

38. Waiver was also held in In the matter of Saithri(7) to cause a loss of the right of the mother as natural guardian. Whenever the Court finds that the father or mother is not tit to protect the interests of the minor by reason of any conduct, misconduct or any circumstance of the nature mentioned above, the Court must, for the welfare of the minor, override the rights of such a father or mother, for such a father or mother by reason of unfitness cannot perform the sacred duties and therefore cannot legitimately claim the sacred rights of a natural guardian.

39. Suppose the natural guardian does not appear or put forward his claim, or appears but declines to act as guardian. If the Court is satisfied that it is for the welfare of the minor that an order should be made appointing or declaring a guardian of his person or property or both, what is the Court to think of such conduct of the natural guardian? This failure or refusal to take up the duties of a guardian cannot but be regarded as proof positive of dereliction of the sacred duties, the performance of which duties alone, as I have said, gives the natural guardian his rights. By such conduct the natural guardian loses his rights and becomes unfit. A natural guardian who fails or refuses to discharge his sacred duties is certainly not a fit person, and the Court must appoint somebody else who is a fit and proper person as the guardian. This appointment of a third person by the Court must be on the basis that the natural guardian, by reason of such conduct has proved himself to be unfit, and therefore, lost his rights under the personal law.

40. Again, suppose on an application being made the natural guardian appears and consents to somebody else being appointed a guardian. If the Court is satisfied that it is for the welfare of the minor that an order should be made appointing or declaring a guardian, the Court has no alternative but to appoint that other person, if in its opinion that other person is not unfit. By consenting to the appointment of another person,—it may be from the best of motives,— the natural guardian shirks the discharge of his sacred duties that lay on him personally and waives his sacred rights. If in this circumstance, the Court appoints the other person, the natural guardian who has consented to that appointment can no longer recall or withdraw his consent, if the person appointed is not guilty of any misconduct and is willing to act. Such a waiver renders the natural guardian unfit just as effectively as misconduct would do, and destroys his rights as natural guardian.

41. It follows from what I have stated above that the natural guardian loses his rights under the personal law by reason of his unfitness for the discharge of the sacred duties, and the Court, on an application being made to it, intervenes and overrides the claims of the natural guardian, because, in its opinion, the natural guardian is unfit to be appointed as the guardian. Therefore, whenever the Court properly passes over the claims of a natural guardian and appoints another person as the guardian of the minor, it clearly indicates that the natural guardian has been found to be unfit. The appointment of another person is, therefore, a clear adjudication that the natural guardian who is passed over is unfit and has, by reason of his unfitness, forfeited and lost his rights as natural guardian under the personal law. It does not matter in the least whether the unfitness is found because of positive misconduct or waiver or any other cause, or whether it is established on contest or admitted or implied from conduct, e.g, by failure or refusal to act or consenting to somebody else being appointed. In each of such cases the unfitness is established equally effectively and entails the loss of the natural rights. If the question of a fresh appointment of a guardian of the minor crops up in the future, e.g, on the death, removal or discharge of the certificated guardian during the minority of the ward, the natural guardian who had been found to be unfit on the previous occasion and had been passed over and superseded can hardly claim, as a matter of right, to be appointed the guardian in the place of the first certificated guardian. I cannot see how he can put forward any claim as natural guardian, for he has already lost that position and forfeited his rights by reason of his unfitness. He may, however, come in as a person related to the minor by blood, and therefore interested in the minor like any other relative, and may attempt to satisfy the Court that the disqualification which rendered him unfit has since ceased to exist and that he has become fit. If the Court is satisfied as to his fitness at that time, the Court may appoint him, but I do not think that the Court by so appointing him recognises or gives effect to his rights as the natural guardian. I do not regard such appointment as based on any theory of the revival of the natural rights.

42. The logical implication of the loss of the rights of the natural guardian by reason of unfitness is recognised and indeed emphasised by the Guardians and Wards Act. Sec. 7 (1) empowers the Court to make an order appointing a guardian of the person or property or both or declaring a person to be such guardian. Sub-sec. (.2) of this section provides that an order under this section shall imply the removal of any guardian who has not been appointed by Will or other instrument or appointed or declared by the Court. Therefore, an order under this section impliedly operates also as an order of removal of any guardian other than a testamentary guardian or a certificated guardian. Who are the guardians whose removal is contemplated by this sub-section? They are other than testamentary and certificated guardians. Obviously the natural guardians or de facto guardians are intended to be referred to. Further, the word “guardian” has been defined in sec. 4 as meaning “a person having the care of the person of a minor or of his property or of both his person and property.” The definition is wide, and it includes within its meaning all kinds of guardians. Thus natural guardians, de facto guardians, testamentary guardians and certificated guardians are all “guardians” within the meaning of the Act, and the Act relates to guardians generally except where it is expressed to relate to a particular ciass of guardians. Applying this definition to the expression “guardian” in sec. 7 (2) we arrive at the same conclusion that an order made under sec. 7 (1) implies under sec 7 (2) the removal of a natural guardian. There is nothing in sec. 7 (2) to indicate that the implied removal is in any way limited as to time. Then I pass on to sec. 39. That section provides for the removal of a certificated guardian and the removal of the testamentary guardian under certain circumstances. There, again, there is nothing in the section which in any way limits the operation of the removal to any particular period.

43. The next question is: what is the effect of the removal of a guardian? The answer is to be found in sec; 41. That section provides for the cessation of the powers of a guardian for various reasons. One of the reasons is the removal of the guardian. There can be no question that the removal of a guardian, certificated or testamentary, under sec. 39 brings about, under sec. 41, a cessation of the powers of the guardian so removed. The Court can then make the consequential requisitions under sub-sec. (3) of that section. What is the effect of the implied removal of a natural guardian or a de facto guardian, under sec. 7 (2)?. Sec. 41 does not in terms purport to provide only for express removal. It is general in its terms. If the definition of “guardian” given in sec. 4 is applied to the term “guardian” appearing in sec. 41, the latter section would cover the case of a guardian impliedly removed under sec. 7 (2). Dr. Pal contended that sec. 41 was limited to the case of express removal under sec. 39 only. He, however, conceded that on implied removal of a natural guardian under sec. 7 (2), the natural guardian so removed would have no authority to represent or do any act for the minor. It was so held in Nathu v. Balwant Rao(8) and Arumugam Chetti v. Duraisingha(9). But Dr. Pal contended that implied removal kept the powers of the natural guardian in a state of suspended animation, and the cessation of authority would only last so long as the guardian appointed by the Court under sec. 7 (1) would function. What provision of the Guardians and Wards Act brings about this cessation of power even for this limited period? I can find none except sec. 41. The cessation of power of the natural guardian on his implied removal under sec. 7 (2), even if it be for a limited period, as contended by Dr. Pal, must, therefore, be referable to sec. 41. It follows from this that sec. 41 which provides for the cessation of the powers of the guardian provides for both cases, namely, express removal under sec. 39 as well as implied removal under sec. 7 (2). In other words, sec. 41 lays down the consequences that must follow the removal of all classes of guardians. In Wallace Sitha Bai… v. Wallace Radha Bai…Opposite Party.(10), it has been held that a de facto guardian is a “guardian” within the meaning of sec. 4, and that the appointment of a statutory guardian under the Act ipso facto removes a de facto guardian, and that therefore, it is competent to the Court under sec. 41 (3) to require a de facto guardian to deliver the minor's property in his possession to the guardian appointed or declared by the Court. If sec. 41 applies to a de facto “guardian, I can see no logical reason why it should not apply to a natural guardian who has been impliedly removed under sec. 7 (2). In Sydney Hugh Mcsweeney… v. Margaret Arbuthnot….(11) a doubt was expressed by a Division Bench of this Court, notwithstanding the decision in Wallace Sitha Bai… v. Wallace Radha Bai…Opposite Party. as to whether sec. 25 was intended to apply to the case of a person who had not been declared or appointed a guardian under the provisions of the Act. Their Lordships did not express any definite opinion on the point and decided the case on merits, and on the evidence came to the conclusion that it would not serve the welfare of the infants to go back to the custody of the applicant and upheld the decision of the lower Court. No reasons were assigned by the learned Judges for their doubt as to the right of a natural guardian to apply under sec. 25 for the custody of the minor children. The word “guardian” occurs in sec. 25, and applying the definition of that term as given in sec. 4 I do not see why sec. 25 should not cover the case of application for custody by any guardian, testamentary, certificated, natural or de facto. The application under that section appears to me to be one in the nature of a habeas corpus application which is usually adopted in England for the recovery of the custody of the minor. It has been held in many cases that sec. 25 applies to natural guardians. See Ulfat Bibi v. Bafati Bibi(12), Bai Tara v. Mohanlal Lallubhai(13), Doyabhai v. Bai Parvati(14) and Sukhdeo v. Ram Chandar(15). These decisions do not appear to have been brought to the notice of the learned Judges who decided the; case of Sydney Hugh Mcsweeney… v. Margaret Arbuthnot….. I do not share the doubt expressed by their Lordships in that case, and with great respect to them I am inclined to the view that both sec. 25 and sec. 41 read with sec. 4 cover the case of all classes of guardians.

44. The contention of Dr. Pal that on the implied removal of a natural guardian under sec. 7 (2) his powers are only kept in abeyance or in a kind of suspended animation but that on the death or removal of the certificated guardian without the appointment of a successor, those powers spring into life again may now be considered. Sec. 7 (2) is, as I have said, quite general and does not indicate that the implied removal is to be limited in any way. Sec. 41 is also in very general terms and does not say that the cessation of power is to be for a limited period only.

45. When a certificated guardian is removed and another is appointed in his place, the powers of the first certificated guardian must cease by virtue of sec. 41. It cannot for a moment be suggested that the subsequent removal of the second certificated guardian, not followed by the appointment of a third one, will revive the powers of the first certificated guardian. Dr. Pal explained that this would be so, because a certificated guardian has no independent right apart from the appointment by the Court. This is true enough so far as a certificated guardian is concerned. But this explanation will not work when we consider the removal of a testamentary guardian under sec. 39. When a testamentary guardian is removed under sec. 39, his powers automatically come to an end under sec. 41, and it cannot be contended that this cessation of powers is only temporary and that the powers will revive on the death or removal of the certificated guardian appointed in his place without a successor being appointed. The testamentary guardian derives his powers from the appointment made by the person entitled to appoint, and not from appointment by the Court. His rights are independent of any order of Court and are derived from the personal law, yet his removal by the Court causes a permanent cessation of his powers. I see no reason in principle why the case should not be the same with regard to the implied removal of the natural guardian. There is nothing in sec. 41 to differentiate between different classes of guardians. Further, when a natural guardian is passed over and the Court appoints another person as guardian, that is only on the footing that he is unfit, and has, by his unfitness, forfeited his natural rights, and the Court takes the control and management of the person and property of the minor out of his hands and places it in the hands of a person of its choice. This guardian so appointed by the Court is but the hand of the Court, and through that agency the Court representing the Crown controls and manages the person and property of the minor. I cannot see why and how the death or removal of this agent of the Court should bring any merit to the superseded natural guardian and cure his unfitness. It may be that when on the death or removal of a guardian appointed by the Court the question of appointment of a successor crops up, the superseded father or mother may again pray for his or her appointment but that he or she may do, not on the basis of his or her rights as natural guardian, for those rights have ceased, but only as a person related to the minor and interested in his welfare, and he or she must satisfy the Court that the unfitness has ceased. If he or she so satisfies the Court and is appointed, it is not on the basis of a revival of his or her power as natural guardian at all. In my judgment, when a natural guardian is removed under sec. 7 (2) his powers as of a natural guardian permanently cease under sec. 41 of the Act, and the management of the affairs of the minor is taken up by the Court and is exercised by the Court by and through the guardian appointed by it. Once the Court assumes jurisdiction and exercises its power of appointment under sec. 7, the matter comes under the control of the Court, and this control lasts until the minor attains majority or dies during his minority. On the appointment or declaration of a guardian by the Court the status of the minor is changed. His majority is automatically extended to 21 years of age. He becomes a ward of the Court appointing the guardian. During the whole of this period there can be no scope for the independent exercise of the powers under the personal law out of Court. The matter in such circumstances passes out of the domain of the personal law and is in the hands of the Court. I quote here the observations of the learned Assistant Judicial Commissioner in the case of Tularam Marwadi v. Emperor(16), although made in a different context, for they express what I desire TO convey:

“The proceedings once initiated by an application either for appointment or for a declaration of a guardian last or continue throughout the minority of the minor concerned. The Crown is the guardian general of all minors, but the statute has delegated the authority of the Crown to the District Court. The application for appointment or declaration is only the initial stage which the statute prescribes as a condition for invoking the jurisdiction of the District Court. Once it is invoked, it becomes fastened on the estate of the minor and vests the powers of management, etc., in the court, and it is only by a process of delegation of powers that some of those powers and functions of the District Court in the matter of the administration of the particular minor's estate become transferred, as it were, to the particular individual whom the court selects to act on its behalf as its delegate, subject to its own general superintendence and control. The court does not cease to exercise its jurisdiction by merely handing over the certificate of guardianship to the person, appointed or declared by it as the guardian of the property of the minor. The jurisdiction once invoked must, therefore, continue to be exercisable by the court ordinarily, until the minor attains majority, in respect of every matter relating to the management and administration, etc., of the property of the ward.”

46. This conclusion appears to me to safeguard the best interests of the minor. To hold that the powers of the superseded natural guardian remain alive, albeit dormant, is to encourage the unfit, and therefore passed over, natural guardian to keep watch and bide his time, and, as soon as the certificated guardian dies unknown to the Court for the time being or is removed from office without a successor being appointed then and there, to seize the opportunity of this interregnum, and deal with the property of the minor to his detriment. This will be a hardship for the minor. On the other hand, to hold that the powers of the natural guardian cease permanently on his removal, express or implied, there is no hardship, for, if there be a vacancy in the office of a certificated guardian by death, removal or discharge, the superseded natural guardian can always come to Court and get such orders as may be necessary for the protection of the person or property of the minor. Alike, therefore, on the broad general principles based on the paramount consideration of the welfare of the minor and on a construction of the different sections of the Guardians and Wards Act, I am bound to hold that appointment of a person other than the natural guardian under sec. 7 (1) implies under sec. 7 (2) the removal of the natural guardian, and that such removal under sec. 7 (2) results in a permanent cessation of his powers under sec. 41. I, therefore, hold that the learned Subordinate Judge was right in his conclusion that in the circumstances that had happened, Bilashini, the mother, had no authority to represent Ratan or to enter into the transactions in question.

47. As to (2): Legal necessity or benefit of the estate: As far back as 1856 the Judicial Committee in the well-known case of Hunooman Persaud v. Mussammat Babooee laid down the scope and ambit of the powers under the Hindu Law of a natural guardian with reference to the minor's estate and the conditions for its exercise in the words follow:

“The power of the manager for an infant heir to charge an estate mot his own is, under the Hindu Law, a limited and qualified power. It can only be exercised rightly in a case of need or for the benefit of the estate………The actual pressure on, the estate, the danger to be averted, or the benefit to be conferred upon it, in the particular instance, is the thing to be regarded ……… Their Lordships think that the lender is bound to enquire into the necessities for the loan, and to satisfy himself as well as he can, with reference to the parties with whom he is dealing, that the manager is acting in the particular instance for the benefit of the estate. But they think that if he does so enquire, and acts honestly, the real existence of an alleged, sufficient and reasonably credited necessity is not a condition precedent to the validity of his charge, and they do not think that, under the circumstances, he is bound to see to the application of the money.”

48. It will be observed that their Lordships in the above passage laid down two alternative conditions either of which will be sufficient to protect the alienee from the natural guardian of a Hindu minor, namely, (1) the actual existence of legal necessity arising out of “the actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it,” and (2) reasonable enquiries made by the alienee to satisfy himself as to the existence of legal necessity for the particular transaction. Dr. Basak in his arguments laid sole emphasis on the first condition and contended that the facts found did not amount to proof of legal necessity or benefit of the estate, but completely ignored the second condition. The learned Judge of the lower Appellate Court found two things, merely, that in the circumstances of this case there was legal necessity and that the transactions were for the benefit of the estate, and that the alienee, the Defendant Respondent Sailendra Nath Shee, made diligent and reasonable enquiries and satisfied himself as to the existence of such legal necessity for the particular transaction. It may be possible on the evidence on record to take a view different from that of the learned Judge of the lower Appellate Court as to the existence of legal necessity as a fact, but in view of his other finding, which is equally unequivocal and positive, that the Respondent Sailendra made reasonable enquiries, it is unnecessary to go into the question of existence of legal necessity or benefit of the estate in greater detail. The latter finding as to reasonable enquiry by the alienee, in my opinion, is equally decisive in the matter. I, therefore, hold, with the learned Appellate Court that this second point urged by Dr. Basak should be decided against the Plaintiffs.

49. The conclusion I have reached, therefore, is that the impugned transactions evidenced by the potta, kabala and indemnity bond are binding on the Appellant Jiban, but not binding on the Appellant Ratan who has chosen to avoid the same.

50. Dr. Basak has not claimed that the transactions are inseverable as regards Jiban and Ratan, or that if they are bad as regards one of them, they must be bad as regards the other also, irrespective of the merits of the latter. Indeed Dr. Basak conceded that if the finding of majority of Jiban could not be challenged on any ground of law, Jiban would be bound by the transactions and he will not be entitled to the declaration prayed for.

51. The result, therefore, is that the decree of the lower Appellate Court in so far as the Appellant Jiban is concerned must stand, and he must pay to the Respondent Sailendra one-half of the costs of all Courts including this Court, and that in so far as the Appellant Bilashini representing Ratan is concerned, the decree of the lower Appellate Court must be set aside and the decree of the trial Court must be restored and the Respondent Sailendra must pay to the Appellant Bilashini representing Ratan one-half of the costs of all Courts including this Court. Hearing-fee in this Court is assessed at 5 gold mohurs.