Jenkins, C.J:— These are two appeals from an order appointing a guardian of a Hindu widow aged 14. There is no power in the Court to appoint a guardian unless the Court is satisfied that it is for the welfare of the minor that the order should be passed. In support of the application there is no affidavit on which the Court can act.……As it is, we have the curious position that an order appointing a guardian has been made on materials which do not comply with the requirements of the law and at the same time a Rule has been issued on another application and is pending for the determination of the question whether some one case should not be appointed guardian.
The proper course now to follow is this:—We set aside the order of Mr. Justice Imam and send back the case in order that it may be re-heard by him if the petitioner thinks fit to put in proper evidence in support of her application.
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Finally, we think before making any order the Court must be satisfied that the application is for the welfare of the minor and that the appointment of the guardian will not infringe sub-sec. (3) of sec. 7 of the Act.
In our opinion the Judge had jurisdiction and, was bound to consider that there was a Will although probate had not been granted: and that appears to us to be the result of several authorities: Syad Shahu v. Hapija Begam, Chinnasami v. Hariharabadra and Pathan Ali Khan Badlu Khan v. Bai Panibai. The fact that there is a contest as to the validity of the Will may induce the Court to exercise its discretion one way or the other, as for instance, it may possibly defer deciding on the question of guardianship until the question of probate has been determined. But it is not open to the Court to say tint it will refuse to take notice of the Will.
We allow the appeals. The Respondent will pay the costs of the Appellant (Mr. Norton's client).
Mr. P.N Sen and Mr. M.N Sen, Attorneys for the Appellant.
Messrs Manuel & Agarwalla and Dé, Attorneys for the Respondent.
P.D
Appeal allowed.