This Appeal is directed against an order appointing a guardian of the person and property of an infant under the Guardians and Wards Act of 1890. It appears that one Dayanidhi Patnaik died on the 8th August, 1908 leaving properties, moveable and immoveable, of considerable value. During the lifetime of his first wife, Dayanidhi adopted a son. The adoption took place in 1899 and the adopted son by name Bangsidhar Patnaik is the minor in respect of whose person and property the guardian has been appointed. After the death of his first wife, Dayanidhi took the Appellant, Sundarmani Dei, as his second wife in February 1908. The death of Dayanidhi therefore was, that he left a widow, a daughter and an adopted son. On the 14th December, 1908, the widow applied to be appointed guardian of the person and property of the infant son of her husband. This application was opposed by two relations of her husband, Durga Charan Mahapatra and Sreekrishna Mahapatra, and also by one Lakshindhar Mahanty. The objectors contended that the widow was herself a minor and was not competent as a purdanashin lady to take effective charge of the person and property of the infant. They also urged that the application in substance was not made bonâ fide in the best interest of the minor concerned. One of the objectors, Sreekrishna, also proposed that Babu Gokulanand Chowdhury, a leading pleader of the Cuttack Bar, who was related both to the widow and to the minor, should be appointed guardian. The Collector of the District also took action under sec. 8, cl. (b) of the Guardians and Wards Act and intimated to the District Judge his opinion that a guardian should be appointed and that the most suitable person available was Durga Charan Mahapatra. The position, therefore, was that the District Judge had before him an application by the widow for appointment of herself as guardian, there was a suggestion by the Collector that Durga Charan should be appointed guardian; there was also a proposal by one of the objectors that Babu Gokulanand Chowdhury should be appointed guardian. The District Judge took evidence and came to the conclusion that the mother should not be appointed, but that Babu Gokulanand Chowdhury was the best person to act as guardian of the infant. The learned Judge accord ??? was made, Babu Gokulanand Chowdhury has furnished security and has intimated his willingness to accept the position of a guardian. In the present appeal which has been filed by the widow, the order of the District Judge has been assailed substantially on two grounds; namely, first, that Babu Gokulanand Chowdhury should not have been appointed guardian as the provisions of secs. 8 and 11 of the Guardians and Wards Act had not been strictly followed; and, secondly, that the application of the widow has been refused on grounds erroneous in fact and insufficient in law.

In so far as the first contention is concerned, our attention has been invited to the provisions of the Guardians and Wards Act applicable to the matter. Sec. 7 provides that where the Court is satisfied that it is for the welfare of a minor that an order should be made appointing a guardian of his person or property or both, the Court may make an order accordingly. Sec. 8 then provides than an order under sec. 7 shall not be made except on the application of the person desirous of being or claiming to be the guardian of the minor or any relative or friend of the minor or the Collector of the District or other local area within which the minor ordinarily resides or in which he has property or the Collector having authority with respect to the class to which the minor belongs. Sec. 10 defines the contents of an application under sec. 8 by a person other than the Collector. Sec. 11 then provides that if the Court is satisfied that there is ground for proceeding on the application, it shall fix a day for hearing thereof and cause notice of the application and of the date fixed for the hearing to be served. On behalf of the Appellant it has been pointed out that the present case does not fall within cl. (a) of sec. 8, because there was no application by Babu Gokulanand Chowdhury, nor does cl. (c) of sec. 8 cover the case because there was no application by the Collector such as was entertained by the District Judge in conformity with the provisions of the Statute. On behalf of the Respondent reliance has however been placed upon the petition of one of the objectors, Sreekrishna Mahapatra, dated the 14th June, 1909, in which it was suggested that Babu Gokulanand Chowdhury should be appointed guardian of the person and property of the infant. It has been contended that this petition of objection might be treated in substance as an application by a relative or friend of the minor for the appointment of Babu Gokulanand Chowdhury as guardian. In answer, it has been contended that if the application be treated in this manner, it ought to have been notified as provided in sec. 11, and it has been suggested that the failure to comply with the provisions of that section is a fatal defect which invalidates the proceedings of the District Judge. In our opinion, there is no substance in the contention of the Appellant. As already stated, there was an application by the widow for the appointment of herself as guardian. There was also an application by a relation for the appointment of Babu Gokulanand Chowdhury as guardian. No doubt the application was not notified in accordance with sec. 11, but that did not constitute fatal defect. The object of sec. 11 is to bring the application to the notice of persons interested in opposing it. There is no room for controversy that all the persons interested in the matter of the appointment of a suitable guardian for the minor were present before the Court, and the evidence shows that the question of the suitability of Babu Gokulanand Chowdhury as a guardian was fully considered by the Court. The case of Jaiwanti Kumri v. Gajadhar(1), where it was ruled that a guardian cannot be appointed without an application under the Guardians and Wards Act, has no application to the case before us. In that case, the Court proceeded to appoint the Nazir as guardian though his name had not been suggested by any of the parties to the proceeding. We are, therefore, of opinion that the order of the District Judge has been made substantially in conformity with the provisions of the Act and cannot be set aside on any techinal ground.

In so far as the second contention is concerned, it has been argued that each of the three reasons assigned by the District Judge for the refusal of the application of the widow is unsound. One of the reasons assigned is that the Petitioner, as the stepmother, was the next heir and it was consequently undesirable that she should be appointed guardian of the person of the infant. This view, it must be conceded, cannot be supported. As was pointed out by this Court in the cases of Lala Joti Lal v. Musst. Durani Kowar(2) and Tahaldai Kumri v. Gaya Tershad Sahu(3) and by the Allahabad High Court in the case of Rama Nand v. Surgianri(4), under the Mitakshara school of Hindu law the stepmother is not the heir of her stepson. Consequently, the applicant cannot be deemed disqualified on this ground. The second reason assigned is that the Petitioner is Herself a purdanashin lady and that the estate which is apparently of considerable value cannot possibly be effectively managed by her. No doubt, it cannot be laid down as an inflexible rule of law that a purdanashin lady should not be appointed guardian of the person and property of her infant son. But in the case before us, the circumstances show that in so far as the property of the infant is concerned, the Petitioner cannot be appointed guardian with any prospect of advantage to the infant. She is herself a young widow, and the estate, if she is appointed guardian, must be managed on her behalf by her father. Her father, it has been pointed out, is in embarrassed circumstances and it would, therefore, be not beneficial to the infant to place his estate practically in charge of the father of his stepmother. The third ground assigned is that the Petitioner herself is an infant, and is, therefore, not competent to be appointed guardian of the person and property of her infant son. The evidence as regards her minority points, we think, to the conclusion that the estimate of the age of the Petitioner, as made by the District Judge, is approximately correct. But it has been pointed out that even in that view, the Petitioner has now attained majority, and that whatever disqualification might have existed at the time of the application, there is no disqualification at the present time. Our attention has also been drawn to sec. 21 of the Guardians and Wards Act which provides that a minor is incompetent to act as guardian of any minor except his own wife or child, or, where he is the managing member of an undivided Hindu family, the wife or child of another minor ??? to the guardian of the person. In so far, therefore, as the question of the appointment of guardian of the property is concerned, the District Judge was right in the view he took. The conclusion, therefore, follows that the order of the District Judge, in so far as it appoints Babu Gokulanand Chowdhury as guardian of the property of the infant, must be affirmed. In so far, however, as the District Judge has appointed Babu Gokulanand Chowdhery to be the guardian of the person of the infant, the order must be discharged. Sec. 21, it has been contended, is wide enough to cover the case, of an adopted son, and the stepmother, even if a minor, is competent to act as guardian of the person of the infant. There is much force in this contention [see Rangubai v. Gopal(5), Lakshmibai v. Shridkar(6)]. But even if the section was strictly construed, as the applicant has now attained majority, she is entitled to be appointed guardian of the person of the infant. We are further of opinion that, in the circumstances of the case, it is for the benefit of the infant that he should not be separated from his stepmother and his sister, and he has plainly indicated his preference for the family circle, to which fact some weight must be attached. Ex parte Edward(7). The effect of the appointment of a stranger as the guardian of the person of the minor would be that he would be removed from the family, but it is not desirable that the feeling between the stepmother and the infant son or between the sister and the brother should be estranged; at the same time, there are advantages in family life which cannot be altogether ignored. The only question is, whether suitable provision can be made for the education of the infant, if the stepmother be appointed guardian of his person. We are of opinion that necessary safeguards may be provided by suitable directions. We accordingly appoint the Petitioner as guardian of the person of the infant, as, after all, the Court, in the matter of choosing a guardian of an infant, must be guided entirely by the interests of the ward, Johnstone v. Beathe(8). We direct, however, that the infant should reside at Cuttack. A house will be taken for him and he will live with his mother and sister. As regards his education, suitable directions will be given by the District Judge. Possibly the best course will be, as the estate is of considerable value, to appoint for him a tutor, and to place him in one of the schools in the town. It has been apprehended by the Respondent that the infant may be removed from the town, but we are assured by the learned Vakil for the mother that the fears are groundless. At any rate, if the mother as guardian does not carry out the directions of the District Judge, she will be guilty of contempt of Court and will be liable to removal from her office of guardian.

The result is that this Appeal is allowed, in part; the order of the District Judge in so far as the appointment of Babu Gokulanand Chowdhury as guardian of the property is concerned, is affirmed; but in so far as the guardianship of the person is concerned, the order is varied and the mother is appointed such guardian. There will be no order for costs for any party other than Babu Gokulanand and the mother, who as guardian will be entitled to their costs out of the estate of the infant.

Appeal allowed in part.