Waller, J.
1. This is an appeal against an order appointing a guardian under the Guardian and Wards Act. A father applied under Section 10 of the Act to be appointed guardian of his minor daughter's person and property and under Section 25 for an order directing the respondent to deliver her into his custody. The District. Judge appointed him guardian of the property and directed the respondent to restore the child to her father, remarking that no order as regards the guardianship of her person was necessary.
2. The conditional order of appointment as guardian of the property is of no effect: In re, Venkatesa Perumal A.I.R. 1927 Mad. 36, and must be set aside. The District Judge is not correct in saying that no order as regards the guardianship of the person was 'necessary.' No such order could have been passed. On this point, we agree in the view taken by Ramesam and Jackson, JJ., in Lakshma Beddi v. Vira Reddi : AIR1925Mad1085 and not in that taken by Venkatasubba Rao, J., in Raghavaiya v. Lakshmiah : AIR1925Mad398 .. Mr. Rama Rao contends that no application lies under Section 25 of the Act in a case where the minor has never been in the custody of the guardian. That is, of course, the plain meaning of the section, but we must follow the rulings of this Court which lay down that, in order to make the Act workable, a fiction must be imported into the section, whereby it is deemed that the child has been constructively, in the guardian's custody and has left it.
3. On the merits, we consider that there should be a further enquiry. The allegation is that the father more or less deserted his wife and endeavoured to marry again, while she was still alive. That allegation has not been investigated. If it is true, it will be for the Court below to consider whether it is for the welfare of the child to return to the custody of a father, who had no particular affection for her mother and has now married again. In effect, if she returns to her father, she will have to be looked after by a stepmother, who may have children of her own and neglect her. The order is set aside. The District Judge will re-entertain the application and dispose of it in the light of the above remarks. There will be no order as to costs.