P.S. Kailasam, J.
1. This appeal is filed under Clause 15 of the Letters Patent against the order of Mohan, J. holding that the petition filed by the appellant-father praying for a declaration that he is the guardian of the persons of the minors and for the restoration of the custody of the minors to the father is not maintainable.
2. The petition is a continuation of a longstanding and bitter litigation between the father and the mother of the minor children. A suit O.M.S. No. 12 of 1962 was filed for judicial separation. Judicial separation was granted and certain directions were given regarding the custody of the minor children. The father filed O.P. No. 270 of 1970 for the custody of the minor children. There were three children out of the marriage, and custody of two minor children was given to the mother. The lather preferred an appeal and the wife a memorandum of objections against the judgment in so far as it was against them, the father and the mother claiming custody of the three children. A Division Bench of this Court by its judgment reported in Jacob A. Chakramakkal v. Rosy J. Chakramakkal : (1972)2MLJ520 , held that the father is the proper person to be the guardian and entrusted the custody o the children to him. The mother took the matter to the Supreme Court, and the Supreme Court in Rosy Jacob v. Jacob : [1973]3SCR918 , restored the order of the learned single Judge directing the custody of the two minor children to the mother. While disposing of the appeal, the learned Judges of the Supreme Court expressed their earnest hope that the two spouses would at least for the sake of happiness of their own off-spring, if for no other reason, forget the past and turn a new leaf in their family life, so that they can provide to their children a happy domestic home to which their children must be considered to be justly entitled. This hope which had been, expressed by several learned Judges during the course of this long and bitter litigation has not yet been realised. In fact, an appeal to the same effect by us during the hearing of the appeal would not help the parties to bury the hatchet.
3. After the Supreme Court rendered its decision, the present petition, O.P. No. 103 of 1974 was filed by the father. The petition purports to be one under Sections 7, 8, 10, 17, 19 and 25 of the Guardians and Wards Act, 1890 (Central Act VIII of 1890 hereinafter referred to as the Act). The relevant reliefs prayed for in the petition in paragraph 10 are as follows:
The petitioner therefore prays that this Hon'ble Court may be pleased to order:
(a) that the petitioner be declared to be the guardian of the persons of the minors,
(b) that the minors are restored to the custody of the petitioner,.
Mohan, J., who heard the petition framed four points for determination and they are (1) inasmuch as the Supreme Court has decided the issue of guardianship, on the principle of res judicata whether the present petition is barred (2) having regard to the language of Section 48 of the Act, whether the order of the Supreme Court has become final and is not liable to be decided otherwise, (3) having regard to the principle of comity of Judges, whether, the matter cannot be re-agitated, and (4) since under law, the father himself is the guardian, whether an application for declaration under Section 7 of the Act will not lie, in other words, is redundant.
4. The learned Judge found that the decision of the Supreme Court barred the present petition on the principle of res judicata. On the second question, he found that the proper construction to be placed on Section 48 of the Act is that the civil proceedings are barred, but that does not mean that where the Court has not decided the question of guardianship in a prior application, the bar under Section 48 could be invoked. The learned Judge felt it unnecessary to go into the principle of comity of Judges as in his view, the present petition is barred by the earlier Supreme Court judgment. On the fourth point, the learned Judge found that though the father is in law the guardian in the absence of any unfitness, that does not mean that he would be disentitled to file the application in proper cases.
5. In the appeal before us, it was contended by the learned Counsel for the appellant-father that the judgment of the Supreme Court would not bar the present petition as the principle of res judicata is not applicable, and the learned Counsel for the respondent on the other hand while supporting the view of the learned Judge that the petition was barred by the principle of res judicata, contended that the learned Judge was in error in holding that an application for guardianship under Section 7 of the Act was maintainable by the father. The question as to whether an order under the Act would, be final and as such this petition is not maintainable would depend upon the fact whether relief under Section 7 of the Act is barred by the Supreme Court judgment and therefore need not be separately considered. The point as to the principle of comity of Judges was not considered by the learned Judge and was also not pressed before us for decision.
6. The first question that arises for consideration is whether the decision of the Supreme Court bars the present petition on the principle of res judicata. The present petition as already referred to was filed under Sections 7, 8, 10, 17, 19 and 25 of the Act, and the reliefs claimed were for declaration of the appellant-father as the guardian of the person of the minors and for restoration of the minors to the custody of the appellant-father. The relevant sections of the Guardians and Wards Act are 7, 17, 19 and 35. Chapter II comprises Section 5 to Section 19 they relate to the appointment and declaration of guardians, Section 7 of the Act reads thus :--'
7 (1) Where the Court is satisfied that it is for the welfare of a minor that order should be made
(a) appointing a guardian of his person or property, or both, or
(b) declaring a person to be such a guardian, the Court may make an order accordingly.
The Court by this section is empowered to appoint a guardian or to declare a person to be such a guardian, if it is satisfied that it is for the welfare of a minor. Section 17 runs as follows:
17. (1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, 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.
(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.
Section 19 (b) of the Act runs as follows:
Nothing in this chapter shall authorise the Court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards or to appoint and declare a guardian of the person of a minor whose father is living and is not, in the opinion of the Court, unfit to be guardian of the person of the minor, or....
This section does not authorise the Court to appoint or declare a guardian of the person of a minor whose father is living and is not in the opinion of the Court, unfit to be guardian of the person of the minor. The requirements of the provisions of Sections 7, 17, and 19 of the Act will have to be borne in mind by a Court before appointing or declaring a guardian of the person of the minor. Chapter III of the Act deals with the duties, rights and liabilities of guardians. Section 25 (1) of the Act runs as follows:
If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the Custody of the guardian.
This sub-section enables the Court to cause the ward to be arrested and delivered into the custody of the guardian, if the ward leaves or is removed from the custody of the guardian of his person, and if the Court is of opinion that it will be for the welfare of the ward to return to the custody of his guardian. Before a petition under Section 25 of the Act could be maintained, the person applying for relief should be the guardian of the person of the minor who has been removed. If the petition under Section 25 of the Act proceeded on the basis that the petitioner was the guardian and relief as to custody of the minor was denied to him, even though he was a guardian, a fresh petition for his being declared as the guardian under Section 7 of the Act and for custody would not be maintainable, for the relief as to custody of the minor would have been considered only on the basis that he was the guardian. Therefore, generally speaking, when custody of the minors had been denied to the father presuming him to be the guardian, a fresh petition by him for declaring him as the guardian and thereafter praying for custody of the minors as a guardian would not be maintainable.
7. Though prima facie the petition is not maintainable, the learned Counsel for the appellant-father submitted that certain observations of the Supreme Court will make it clear that the filing of a petition under Section 7 of the Act was kept open in the prior proceedings. In order to appreciate this contention, we will refer to the various passages relied on by either of the parties in the Supreme Court judgment in Rosy Jacob v. Jacob : [1973]3SCR918 . The last sentence in the first paragraph runs as follows:
The short question which we are called upon to decide relates to the guardianship of the three children of the parties and the solution of this problem primarily requires consideration of the welfare of the children.
On behalf of the respondent-mother it was submitted that what was decided by the Supreme Court related to the guardianship of the three minor children and a petition for declaration of the appellant-father as the guardian of the minors would not lie now as it was specifically covered in the point that was determined by the Supreme Court. The Supreme Court quoted the second point that arose for judicial determination before the learned single Judge of the High Court who heard O. P. No. 270 of 1970 as follows:
What is the proper order to pass as regards the custody of the three children of the marriage in the light of the events that have occurred subsequent to the judgment of the appellate Court and under the Guardians and Wards Act ?
It may be noted that the point as set out here refers to the custody of the three children. The petition O.P. No. 270 of 1970 was for the custody of the minor children under Section 25 of the Guardians and Wards Act. A contention was raised on behalf of the respondent-mother that the Guardians and Wards Act would be inapplicable to cases where orders have been made in matrimonial proceedings and Section 19 of the Guardians and Wards Act cannot govern the custody of children given by a consequent decree under the Indian Divorce Act. In dealing with this point, the Supreme Court held that the Court under the Divorce Act would be incompetent to make any order under sections 41 and 42 with respect to the elder son and the daughter in the present petition as they have passed the age contemplated under the Indian Divorce Act. On this ground on behalf of the father it was claimed that he had a right to invoke Section 25 of the Act and it was further pleaded that if Section 25 of the Act was not applicable, then the petition O.P. No. 270 of 1970 should be treated to be one under Section 19 of the Act or under any other competent section of the Act so that he could get custody of the children denied to him by the mother. The answer to this contention on behalf the mother, the respondent herein, was that the proper procedure which the father ought to have adopted was to apply under Section 7 of the Act and if such a petition had been made, it would have been tried in accordance with the provisions of that Act. The above passage indicates that while on behalf of the father the Court was requested to treat the petition to be one under Section 7 of the Act, on behalf of the mother it was contended that the petition cannot be treated to be one under Section 7 of the Act. Dealing with this contention the Supreme Court observed that if the Court under the Divorce Act cannot make any order with respect to the custody of Ajit alias Andrew and Maya alias Mary and it is not open to the Court under the Guardians and Wards Act to appoint of declare guardian of the person of his children under Section 19 during his lifetime, if the Court does not consider him unfit, then, the only provision to which the father can have resort for his children's custody is Section 25. The above sentence would indicate that when the court under the Divorce Act cannot make any order with respect to the custody of the two minors who have passed the age it is not open to the Court under the Guardians and Wards Act to appoint or declare guardian of the person of his children under Section 19 during his lifetime, the only relief that was available to the father is under Section 25 of the Act. This might imply that a father cannot apply 'during his lifetime to be appointed or declared as guardian. If this position is taken as the law declared by the Supreme Court, this Court will be bound by it and a petition by the father for his being appointed or declared guardian should be held to be not maintainable under the Guardians and Wards Act. But this statement of the Supreme Court, it was contended by the learned Counsel for the appellant-father, is not law declared, but was only a passing observation. We will deal with this question when we consider the objection of the learned Counsel for the respondent that a petition by the father for appointment or for declaration as a guardian is not maintainable.
8. Dealing with child Mahesh alias Thomas, at the time when the appeal was heard by the Supreme Court, the Court under the Divorce Act was empowered to make suitable orders, relating to his custody, maintenance and education, and therefore the Supreme Court felt somewhat difficult to impute to the Legislature an intention to set up another parallel Court to deal with the question of the custody of a minor which is within the power of a competent Court under the Divorce Act. The Supreme Court therefore declined to accede to the plea of the father that his application should be considered to have been preferred for appointing or declaring him as the guardian. The plea that he may be appointed or declared as the guardian is a relief under Section 7 of the Act and If he is appointed as the guardian, he can ask for custody of the minors if he satisfies the other requirements of the Act. Though the Supreme Court declined, to treat the application to be one under Section 7 of the Act, it proceeded on the basis that the father was the guardian and considered the question as to whether as a guardian in the circumstances of the case, he would be entitled to the custody. The Supreme Court dealing with the contention that if the father is not unfit to be the guardian of his minor children, then the question of their welfare does not arise at all, held that such a contention is to state the proposition too broadly and may appear somewhat misleading. This passage would indicate that on behalf of the father custody was claimed under Section 19 of the Guardians and Wards Act which provides that the Court is not authorised to appoint or declare a guardian of the person of a minor whose father is living and is not in the opinion of the Court unfit to be a guardian of the person of the minor. On the basis of the section the plea was that being the father and being not unfit to be the guardian of the person of the minors, no other person could be appointed or declared as the guardian and therefore the father is entitled to the custody of the children. As already stated, this plea was negatived by the Supreme Court by saying that the contention that if the father is not fit to be the guardian of the minor children, then the question of their welfare does not arise at all, is to state the proposition too broadly. Therefore, it is clear that the Supreme Court proceeded on the basis that the appellant-father was the guardian and not disqualified to be a guardian, but yet under Section 25 of the Act, he will not be entitled to the custody as it was not in the welfare of the children. The Supreme Court observed that the father's fitness cannot override considerations of the welfare of the minor children, and though the father has been presumed by the statute generally to be better fitted to look after the children, the Court in each case has to see primarily to the welfare of the children in determining the question of their custody in the background of all the relevant facts having a bearing on their health, maintenance and education. The Supreme Court referring to the decisions on the question of right to be appointed or declared as the guardian and thereby granted custody of his minor children under Section 25 read with Section 19 of the Act observed that those decisions to the extent they go against the view expressed by the Court must be held to be wrongly decided. On a reading of the judgment of the Supreme Court it is clear that the Court directed the custody of the children to the mother after taking into account the position of the father who is not unfit to be the guardian of the minor children. In the circumstances, the relief asked for in the petition in O.P. No. 103 of 1974 for an order directing the minors to be restored to the custody of the petitioner cannot be ordered, even though the petitioner-father may be declared to be the guardian of the person of the minors.
9. We will now refer to the question, as to whether it is open to the appellant-father to seek a declaration that he is the guardian of the person of the minors, even though he is not entitled for restoration of the custody of the minors. In the petition, the father has stated that no guardian has so far been appointed by the Court and no application was made with respect to the guardianship of the minors and that the present petition was made for a declaration that the appellant-father was the guardian of the person of the minors and for restoration of custody to him. Paragraph 8 of the petition starts by saying that the petition is for declaration and custody made on the grounds mentioned. Thus it will be seen that the relief sought for by the petitioner is to be declared as the guardian though in asking for such a declaration the relief for restoration of the custody of the minors is also included which relief we have already found that the petitioner is not entitled to. The Supreme Court in disposing of the appeal before it was not called upon to consider whether the father is entitled to be declared as the guardian, though in stating the short question for consideration, the Court stated that what it was called upon to decide related to the guardianship of the three children of the parties. The body of the judgment makes it clear that it was dealing only with the custody of the children under Section 25 of the Act even though in deciding the question it took into account the preferential position of the father under the Act. The plea therefore that the issue as to the guardianship has not been decided as such in the earlier proceeding has to be accepted. It has to be held that as this question as to the guardianship has not been adjudicated, the father will be entitled to maintain a petition so far as the first relief, that is, the petition for his being declared as the guardian, is not barred by the principle of res judicata by the decision of the Supreme Court. In considering this petition, the Court will take into account the several provisions in the Act which it is called upon to take into account before appointing a guardian, particularly Sections 7, 17 and 19 of the Act. A petition by the father need not always be redundant for it may well be contended that the Court need not make an order declaring a guardian under the Act if it is not for the welfare of the minor. The petition may be opposed on grounds that 'pray be open under the law.
10. It was strongly urged by Mr. K. N. Balasubramaniam, learned Counsel for the respondent-mother that the father is not entitled to maintain an application under Section 7 of the Act for his being declared as a guardian under the Act. Section 7 provides that for the welfare of the minor, if the Court is satisfied that the order should be made declaring a person to be such a guardian, the Court may make an order accordingly. On a reading of the section there appears to be no objection to the father being declared as a guardian if the welfare of the minor required it. Section 17 requires that in declaring a guardian, the Court 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. This section also does not in any way bar the father applying for being declared as the guardian of the minor. Section 19 (b) of the Act provides that nothing in Chapter II which relates to appointment and declaration of guardians, shall authorise the Court to appoint or declare a guardian of the person of a minor whose father is living and is not, in the opinion of the Court, unfit to be guardian of the person of the minor. This sub-section has given rise to a controversy and the learned Counsel for the respondent-mother referred to certain decisions which would construe the section as debarring the father from maintaining a petition for his being declared as a guardian. Before referring to the decisions, we would point out that this point was not taken before the Supreme Court or in any other proceedings. The contention on behalf of the mother who was the appellant before the Supreme Court was that the father ought to have applied under Section 7 of the Guardians and Wards Act and the plea of the father was that if the petition under Section 25 was found to be defective, it could be converted into one under Section 7. Though the Supreme Court did not permit the father to convert the application to be one under Section 7 it has to be held that an application under Section 7 is not maintainable. The only passage which may be taken as referring to this aspect is the one where the Court has observed that if the Court under the Divorce Act cannot make any order with respect to the custody of Ajit alias Andrew and Maya alias Mary and it is not open to the Court under the Guardians and Wards Act to appoint or declare guardian of the person of his children under Section 19 during his lifetime, if the Court does not consider him unfit, then the only provision to which the father can have resort for his children's custody is Section 25. From this observation, it was submitted that the Court has ruled that the Court under the Guardians and Wards Act cannot appoint or declare the father as the guardian of the person of the minor under Section 19 during his lifetime. This statement of the Supreme Court is hypothetical and cannot be construed as laying down the law that an application under Section 7 is not open because of Section 19. Having found that the Supreme Court has not held that a petition under Section 7 by the father is not maintainable, we will proceed to refer to the decisions cited before us.
11. In Satyanarayana v. Narasaiyamma 18 M.L.W. 173 : 73 INDE.CAS. 948 : A.I.R. 1924 Mad. 45, a Bench of this Court held that if a third party applies, he shall not be appointed or declared a guardian of the person of a minor whose father is living and is not, unfit, and if the father is the applicant the section has no application. In Raghaviya v. Lakshmiah : AIR1925Mad398 , the question as to whether the father can ask for a declaration that he is the guardian was considered by a Bench Venkatasubba Rao, T. took the view that the law was correctly laid down in Satvanarayana v. Narasaiyamma 18 M.L.W. 173 : 73 Ind.Cas. 948 : A.I.R. 1924 Mad. 45', while Jackson, T. took a different view. Venkatasubba Rao, J., observed, after referring to Section 19 (a) of the Act that the section recognised the preferential right of the husband or the father as the case may be and provided for the safeguarding of such right, and it was not intended to impose a disability upon either of them, but on the contrary, the plain intention of the section is that in the case of a married female no one other than a husband shall be appointed her guardian unless he is unfit to be such and in the case of a minor child none but the father, excepting when it is proved that he is not fit to be its guardian. A decision of the Privy Council in Annie Besant v. Narayaniah I.L.R. (1915) Mad. 807 : 27 M.L.J. 30 : 41 I.A. 314 : A.I.R. 1914 P.C. 41, was cited before the Bench in support of the proposition that the father cannot maintain a petition for being declared as a guardian. The observation relied on runs as follows:
And further no order declaring a guardian should by reason of the 19th section of the Guardians and Wards Act, 1890 be made during the respondent's life unless in the opinion of the Court he was unfit to be their guardian, which was clearly not the case.
The Privy Council was not dealing with the propriety of the order appointing the plaintiff as the guardian. The observation in the circumstances was held by Venkatasubba Rao, J. as obiter and in the absence of any indication in the judgment that their Lordships of the Privy Council gave a considered opinion on the question, the learned Judge was not prepared to hold that they intended to decide finally the meaning of Section 19. Scrutinising the observation of the Privy Council, we are unable to construe it as laying down that the father cannot maintain a petition for being appointed as a guardian. What it says is that under Section 19 no order declaring a guardian should be made during the respondent's lifetime (father's lifetime) unless in the opinion of the Court he was unfit to be the guardian which was clearly not the case. This in our view would only mean that all that the Privy Council did was to paraphrase Section 19 but did not purport to lay down that the father cannot maintain an application. Jackson, J., who was the other learned Judge in Raghavaiva v. Lakshmiah : AIR1925Mad398 , expressed a contrary view in the following terms:
Whether the dictum in Besant v. Narayaniah 1914 27 M.L.J. 30 : I.L.R. (1915) Mad. 807 : 41 I.A. 314 : A.I.R. 1914 P.C. 41, is obiter or otherwise I think it expresses the plain meaning of the statute and under Section 19 the Court is not authorised to declare anybody not even the father as guardian of the person of a minor whose father is living and in the opinion of the Court is not unfit. Whether this was the intention of the legislature or whether a contrary intention has been defeated by defective drafting, I am not prepared to say.
Neither the section (section 19) nor the passage referred to in the decision of the Privy Council states that the Court is not authorised to declare anybody as guardian not even the father. The construction that not even the father can be appointed is not warranted either under the section or on the wording of the judgment of the Privy Council. We are in respectful agreement with the view taken by Venkatasubba Rao, J. and are of the opinion that the father could maintain a petition under Section 7 for his being declared as the guardian.
12. A few decisions rendered subsequently were relied on by the learned Counsel for the respondent-mother. In Sivasankara v. Rudhabai : (1939)2MLJ515 , the question arose as to whether a Hindu father had a right to the custody of his minor daughter. When the marriage of the minor daughter was about to be settled, the father disapproved of the choice and applied under the Guardians and Wards Act praying for an order appointing him as a guardian of the person and property of the minor. He also prayed that the first respondent should be directed to hand over the custody of the minor to him and the first respondent should be restrained by an injunction from giving away the minor in marriage to the second respondent. The application was heard originally by Gentle, J. who treated it as one falling under Section 25 of the Act, and on the ground that the appellant had abandoned the minor dismissed the petition. An appeal was preferred by the father to a Bench of this Court and the Bench dismissed the appeal holding that the father is certainly not a person in whose favour the Court should pass an order under Section 25 of the Act, and it is abundantly clear that the minor will be in far better custody if she remained with the first respondent. Repelling the contention that even under the circumstances the injunction against the marriage may be granted, the Court held that such a relief cannot be obtained under any of the provisions of the Act and observed that if the appellant wished to take other proceedings, he was at liberty to do so, but having failed in his application under Section 25 of the Act, he was not entitled to any order on the present application. What the Court considered was a petition under Section 25 of the Act, and the question as to whether an application by the father for his being appointed as the guardian could be maintained or not did not arise for disposal in the appeal. But the Bench observed that the appellant-father is not entitled to apply under the Act for an order appointing him as the guardian of the person or the property of the minor on the ground that under the Hindu Law, the father is the lawful guardian of his child and a declaration by the Court cannot increase his powers. For the above observation, Leach, C.J. speaking for the Bench relied on Venkateswaran v. Saradambal I.L.R. (1935) 13 Rang. 590 and the fact that the learned advocate did not challenge the correctness of the decision rendered by him. Apart from the observation being in the nature of an obiter the reason given that as under the Hindu Law the father is the lawful guardian, he is not entitled to apply for his being appointed as the guardian, has no support in law. It may be that such an application for appointment as a gurdian may not be necessary by virtue of his status. But as far as we could see there is nothing in the Act disabling the father from making such an application and claiming to be the guardian under the Guardians and Wards Act. In the circumstances, we do not think that the observation which is in the nature of obiter is binding on us.
13. In Abubacker v. Mariyamma : AIR1946Mad110 , the same learned Judge (Leach, C.J.) reiterated the view. A Muhammadan father applied for an order appointing him the guardian of his children by the respondent. Subsequently the amended the petition and asked for an order of the Court requiring the respondent to return the children to his custody. The District Judge dismissed the petition. On appeal the Bench observed that a Muhammadan father being the lawful guardian of his minor children does not require an order of the Court to support his right to act as their guardian and in fact an application under the Guardians and Wards Act for an order appointing him guardian does not lie. The petition which the Bench was dealing with was one under Section 25 of the Act and the observation that a petition under the Guardians and Wards Act by the father for appointing him as the guardian does not lie, was not necessary for the disposal of the petition before the Court. In this view, the observation is in the nature of an obiter dictum and therefore not binding on us.
14. In Kunkirama Kurup v. Narayanan Nambiar : AIR1954Mad375 , Mack, J. after a consideration of the decisions in Venkateswararn v. Saradambal I.L.R. (1935) Rang. 590, Sivasankara v. Radhabai : (1939)2MLJ515 and Annie Besant v. Narayaniah I.L.R. (1915) Mad. 807 : 41 I.A. 314 : 1914 27 M.L.J. 30 : A.I.R. 1914 P.C. 41 held that he could not regard the line of decisions as ruling out under all circumstances an application by a father to be declared the guardian of person and property of his minor child.
15. In Bai Tara v. Mohan Lal Lallubhai : (1922)24BOMLR779 it was held that an application by a Hindu father under the Guardians and Wards Act, for his being declared as a guardian is not competent. In Tej Begum v. Ghulam Rasul (1924) 83 I.C. 308 the Court following the decision in Annie Besant v. Narayanaiah I.L.R. (1915) 38 Mad. 807 : 41 I.A. 314 : 27 M.L.J. 30 : A.I.R. 1914 P.C. 41, expressed the view that the legislature did not intend that the Act should apply to a father as the provision was superfluous.
16. The decision of the Allahabad High Court in Mt. Siddicunnisa v. Nizamuddin : AIR1932All215 , was cited by the learned Counsel for the respondent-mother. We do not find any passage in which the Court has ruled out an application by the father for being appointed as the guardian of the minors under the Guardians and Wards Act. What the Court has stated is that the section means not only that in the presence of the husband or the father no one else should be given preference, when either of them is fit to be appointed the guardian, but on its language it even ousts the jurisdiction of the Court altogether and prevents it from appointing even the husband or the father as a guardian when both of them are not unfit to be the guardian. This passage is explained later in the judgment by Sulaiman, Ag.CJ. thus:
In my opinion the legislature intended that nobody should be appointed or declared the guardian at all when the husband and the father are alive and both of them are not unfit, without attempting to settle the competition between them which may arise under the personal law.
17. For the reasons stated, we are unable to agree with the view of the Lahore or the Bombay High Court that an application by the father for his being appointed as guardian of the person of the minor is not maintainable under the Act. We are of the view that the observation made in Sivasankara v. Radhabai : (1939)2MLJ515 and Abubacker v. Mariyammal : AIR1946Mad110 are in the nature of obiter dicta and are not binding on us. We are satisfied on a reading of the relevant provisions of the Act that a petition by the father for declaring him as the guardian of a minor is maintainable and that Section 19 does not debar him from making such a petition. In coming to this conclusion we respectfully agree with the view taken by Venkatasubba Rao., J., in Raghaviaya v. Lakshmiah : AIR1925Mad398 , the observations of the Bench in Satyanarayana v. Narasaiyamma A.I.R. 1924 Mad. 45 and the observation of Mack, J., in Kunhiranta Kurup v. Narayanan Nambiar : AIR1954Mad375 .
18. In the result, we hold that the petition by the appellant-father for his being declared as the guardian of his children is maintainable. We also hold that the relief for a declaration that he is the guardian of the minor children is not barred by the decision of the Supreme Court in Rosy Jacob v. Jacob : [1973]3SCR918 . We also hold that so far as the second relief praying that the children be restored to the custody of the appellant-father is concerned, it is barred by the said decision of the Supreme Court. But as observed by the Supreme Court, with the changed conditions and circumstances, including the passage of time, the Court is entitled to vary such orders if such variation is considered to be in the interest of the welfare of the wards. We refrain from stating whether any change of conditions or circumstances have been made out in the original petition. It is for the trial Court to decide the question. The appeal is allowed to the extent indicated above. There will be no order as to costs in this appeal.