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- - that apart, considering the fact that the appellant having deserted the company of her husband and the three children for last three years preceding her husband's death, it was difficult to take the view that she had any natural love and affection for the children and it would be expedient for the welfare of the children to declare her as their guardian. indeed, for the welfare of the children -their education and well-being -the respondents, according to him, were better situate and equipped for being declared as their guardian. only one thing i would like to stress is that in the court below as also in this court, appellant's counsel shri n. - (1) where the court is j satisfied that it is for the welfare of a minor that an 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 power is evidently discretionary and has to be exercised when the court feels 'satisfied' that it is necessary to make such an order 'for the welfare of the minor'.there is no mandate, whether in section 13, hmga, or in section 7, gwa, on the court to act positively in all situations and make an affirmative order appointing or declaring any person as a guardian of a hindu minor until such an order is necessary to be made for the 'welfare of the minor'.10. i propose to discuss now few decisions cited at the bar and brought to my notice, having a bearing on these considerations. it was further held that such an application must be determined with reference to the paramount consideration as to the welfare of the minor and father's plea was rejected in the facts and circumstances of the case, holding that leaving the child to remain in the mother's company and custody was in the best interest of the minors and their welfare. in that case also, as in rajkumar mahant, (1972 mplj 775) (supra), father's plea under section 25, gwa was rejected holding that in the best interest of the minor, it was expedient that the child should remain in the company of the mother as that subserved its welfare in the best manner possible. had it been the legislature's intention to restrict the father's power to appoint a testamentary guardian in such manner as to disable him to appoint the mother as such a 'guardian' in the will, that would have been clearly indicated, but subsection (1) does not manifest any indication at all of such a legislative intent. however, i would like to add a few words of my own. this is very clearly manifested in the provisions of sections 217, 264, 299 and 300 of part ix of the act. (ii) it is not obligatory on the part of the guardianship court to make any appointment or affirmative declaration under section 7, gwa whether there is one or more contenders for guardianship, unless and until the court is satisfied that it is necessary to make such an order for the welfare of the minor in all cases, includinga hindu minor's. (iii) whenever the contenders to guardianship seek declaration on the basis of an appointment made in the will, it shall be well within the jurisdiction of the guardianship court not to decide the question of guardianship and allow them to obtain a probate of the will so that the successful contender can make a fresh application. in case the guardianship proceedings are stayed, hearing of the application of the successful contender may then be resumed, but it shall be open to the unsuccessful contender, indeed, in allcases, to contest the application and invoke court's power under section 39, gwa, in the same proceeding itself. 17. what does not appear to have been so far settled and is more relevant yet for the instant case may now be catalogued on the basis of discussion earlier made :(i) a hindu father's right to appoint his wife, in the will executed by him, as guardian of his child after his death, of his person as well as property, is embedded in sections 6, 8 and 9(1), hmga. her application in that capacity was, therefore, clearly misconceived. 19. indeed, in the facts and circumstances of the case, the court below failed to exercise its discretion judicially as it failed to consider that no order for guardianship of the property of the minors was necessary for their welfare because of the contentious rights agitated by rival claimants on the basis of two wills which could be better settled in probate proceedings. in any view of the matter, the eldest son deepak having since become adult and living with his mother in his father's house, i am not satisfied that any order of guardianship is warranted today.t.n. singh, j. 1. for the determination of the ticklish question of law that has surfaced in this case, no close parallel on facts being found in any reported decision, hearing of this appeal has unfortunately staggered and disposal delayed.2. contenders for guardianship in this case are threesome, albeit in two proceedings, and the wards also are threesome. the mother alone made an application under the guardians and wards act, 1890, for short gwa, for declaration that she was the guardian of the person and property of her sons, deepak, dhananjay and abhay, while another application was made a few days later for the same purpose jointly by the paternal grandmother of the children along with her daughter. hearing of the two applications was consolidated. because the other application was allowed and her application was dismissed, the mother has preferred the instant appeal impugning the decision rendered against her in the common judgment disposing of the two applications.3. narayanrao kshirsagar, it is the common case of the parties, died on 25-10-1979 and it is also not disputed that the appellant is his legally married wife and that the three children were born to them. what is, however, seriously disputed is the fact that whether narayanrao executed, during his lifetime, the will dated 23-10-1979 on which the appellant has relied or the will dated 21-10-1979 on which his mother and sister relied. the fact, not in dispute, is also that narayanrao was afflicted by tuberculosis and he died of that decease after protracted treatment and further that since few years before his death, the husband and wife were not living together. it is also not in dispute that eldest of the three children, deepak, is, at present, living with his mother, the appellant, in narayanarao's house, while his two brothers are still living elsewhere with the respondents, their grandmother and aunt. the allegation that deepak was abducted by the appellant, and the house was occupied forcibly in my opinion, has little relevance to the controversy.4. both the wills above-referred, dated 21-10-1979 and 23-10-1979, were proved in the case as exh. d/6 and p/3 respectively. learned additional judge who heard and disposed of the two applications after consideration of other evidence adduced in the case, took the view that no reliance could be placed on ex. p/3. on the other hand, according to him ex. d/6 could be relied on. that apart, considering the fact that the appellant having deserted the company of her husband and the three children for last three years preceding her husband's death, it was difficult to take the view that she had any natural love and affection for the children and it would be expedient for the welfare of the children to declare her as their guardian. he also took the view that the wishes of the deceased expressed in ex. d/6, in the facts and circumstances of the case, were to be respected and given due importance and further that there was nothing in evidence to suggest that the respondents with whom the three children were living, could not be considered fit persons to be declared their guardians. indeed, for the welfare of the children -- their education and well-being --the respondents, according to him, were better situate and equipped for being declared as their guardian. the admitted fact indeed is that second respondent, sister of narayanrao was spinster and she was employed as a teacher in a local school. the wishes of the children themselves were also taken into consideration by the court below who expressed the desire to live with respondents, and not the appellant.5. for the view i have taken in this matter, it is not necessary for me to deal with other facts of the case or to engage myself in reappreciation of evidence to decide as to whether the decision on merit is liable to be sustained. only one thing i would like to stress is that in the court below as also in this court, appellant's counsel shri n.k. modi very ably and forcefully argued that the appellant being the natural guardian of the children, her claim to be declared as guardian of the three children cannot, in any view of j the matter, be rejected. it is this contention which, though rejected by the court below, merits serious reconsideration in all its aspects.6. reliance was placed by shri modi withgreat confidence and composure on theprovisions of sub-section (2) of section 9 ofthe hindu minority and guardianship act,1956, for short, hmga, to urge that the willex. d/8 ought to have been totally excludedfrom consideration by the court below. hehas also placed reliance on the provisions ofsection 5(b) of the said act to submit that the i'overriding' effect of the provision havingbeen ignored and overlooked, the decisionrendered is not sustainable in law. however,i am of the view that the provisions relied onare not to be read in isolation and not only ,sections 2 and 13 of the said act have also tobe looked into, but some provisions of theother cognate enactments, such as theguardians and wards act, 1890 and indiansuccession act, 1925 (isa) have also to belooked into. according to me, the matterwhich requires serious consideration is rather the import and purport of section 7(3), gwa.indeed, in the facts and circumstances of thecase, reference to sections 61,211,213,216,217 and 227, isa is also necessary. 7. the relevant provisions of gwa and hmga, i propose to extract:gwa:'7. power of the court to make order as to guardianship.- (1) where the court is j satisfied that it is for the welfare of a minor that an 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. (2) 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. (3) where a guardian has been appointed by will or other instrument or appointed or declared by the court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this act.' hmga:'2. act to be supplemental to act 8 of 1890.-- the provisions of this act shall be in addition to, and not, save as hereinafter expressly provided, in derogation of, the guardians and wards act, 1890. 5. overriding effect of act.-- save as otherwise expressly provided in this act.- (b) any other law in force immediately before the commencement of this act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this act. 9. testamentary guardians and their powers.-- (1) a hindu father entitled to act as the natural guardian of his minor legitimate children may, by will, appoint a guardian for any of them in respect of the minor's person or in respect of the minor's property (other than the undivided interest referred to in section 12) of in respect of both. (2) an appointment made under subsection (1) shall have no effect if the father predeceases the mother, but shall revive if the mother dies without appointing, by will, any person as guardian.' (3) a hindu widow entitled to act as the natural guardian of her minor legitimatechildren, and a hindu mother entitled to actas the natural guardian of her minor legitimatechildren by reason of the fact that the fatherhas become disentitled to act as such, may,by wilt, appoint a guardian for any of them inrespect of the minor's person or in respect ofthe minor's property (other than the undivided interest referred to in section 12) or in respect of both. 13. welfare of minor to be paramount consideration.-- (1) in the appointment or declaration of any person as guardian of a hindu minor by a court, the welfare of the minor shall be the paramount consideration. (2) no person shall be entitled to the guardianship by virtue of the provisions ofthis act or of any law relating to guardianshipin marriage among the hindus, if the court isof opinion that his or her guardianship will not be for the welfare of the minor.' (emphasisadded). the obvious need not be stressed that hmga is not a self-contained code as it is expressly envisaged in section 2 thereof that the provisions of gwa are to be resorted to whenever an order is sought from a guardianship court in respect even of a hindu 'minor' as respects his person and property. however, i may also note here what sections 6 and 8 of hmga, which are not extracted, do contemplate. the natural guardian of a hindu minor, in case of a boy, is the father and after him, the mother and the natural guardian has the power to do all acts which are necessary or reasonable and proper for the benefit of the minor for the realisation, protection or benefit of the minor's estate except to the extent the power is circumscribed by section 8 itself.8. the first thing to be considered is whether the provisions of section 9(2), hmga, at all affect in any manner the force and ambit of section 7, gwa. looking at the problem from another angle, it is to be seen if section 7, gwa is in any way and to any extent 'inconsistent' with the provisions of section 9(2) or any other provision of hmga. what appears clear to me is that section 7, gwa and section 9, hmga, operate in two separate fields and have separate purports. while section 9, hmga deals with power of a hindu testamentary guardian, the power of a court to make an order as to guardianship, in any case, is to be found in section 7, gwa, because the power of a court to pass an order of guardianship as respects a hindu 'minor' is not 'expressly' affected by any of the provisions of gwa, keeping in view the provision of section 2, hmga, it is difficult to hold that provision of section 9, hmga shall affect, in any manner, the provision contained in section 7, gwa. indeed, section 7, gwa empowers a court, to make an order thereunder for the 'welfare of the minor' and that position also obtains under section 13, hmga. because section 7, gwa and section 13, hmga operate in the same field, i find it difficult to accept the proposition canvassed by shri modi that section 9(2) must have 'overriding effect' in such manner as to affect the power of the guardianship court under section 7, gwa. this legal position must obtain, according to me, by the application of the fundamental canon of statutory interpretation of harmonious construction of statutory provisions. i do not see any warrant in the language of section 9, to read it in any other manner except that it is not in derogation of the provisions contained in section 13 of hmga itself and both supplement section 7, gwa.9. it is necessary also, according to me to bear the distinction between the two positions which are statutorily envisaged in section 7, gwa itself in the power of the court to 'appoint' and 'declare' a guardian. the further fact to be noted is that neither enactment, gwa or hmga, makes it obligatory for the court, acting under section 7, gwa, to make an order thereunder whenever an application is made for such an order. the power is evidently discretionary and has to be exercised when the court feels 'satisfied' that it is necessary to make such an order 'for the welfare of the minor'. there is no mandate, whether in section 13, hmga, or in section 7, gwa, on the court to act positively in all situations and make an affirmative order appointing or declaring any person as a guardian of a hindu minor until such an order is necessary to be made for the 'welfare of the minor'.10. i propose to discuss now few decisions cited at the bar and brought to my notice, having a bearing on these considerations. long ago in akhoy kumari debi v. hazari dassee debi, air 1916 cal 324, the division bench, comprising jenkins, c.j. and woodroffe, j. took the view that when there was a contest as to validity of any will any declaration was sought from court on the basis of an appointment made in the will, it was open to the court (o exercise its discretion, one way or the other and it may even defer its decision on the question of guardianship until the question of probate had been determined. a learned single judge of this court in mule v. drupadi, air 1952 madh bha 93, upheld the order passed by the guardianship court recalling its order appointing not the mother, but uncle of the boy and declaring the mother as the guardian in view of the fact that not only she was the natural guardian of the boy, but her appointment had been duly made in a will executed by her husband during his lifetime. relying on section 7(3), it was laid down in that case that where a guardian had been appointed by will, any order appointing other person would be void till the powers of the testamentary guardian ceased in accordance with the provisions thereof. that apart, it was also held that when the court had not considered the question as to whether it was really necessary to appoint a guardian at all, in the facts and circumstances of the case, the order would be without jurisdiction. a division bench in johera khatun bibi v. amin bibi, air 1958 cal 545, stressed the distinction between cases of appointment and declaration of a guardian under gwa, holding that one can be declared a guardian only when one is already the guardian and that the question of appointment arises when there are rival claims for guardianship and the court has to determine the person who is most suitable for appointment. leach, c.j. and lakshmana rao, j. in seeyali veettil abubacker v. ovinakatu vavyilapurayil mariyumma, air 1946 mad 110 took the view that an application by a person who was the 'lawful guardian' under the personal law does not lie because such an application is not contemplated under section 8, gwa. a mohammedan father was held entitled to make only an application under section 25, gwa for the 'custody' of the son, but the court was not compelled thereunder to pass an order in his favour because even that section made it discretionary for the court to make an order for return of the boy to the custody of the guardian if it was for the welfare of the boy.11. because reliance was placed by shri modi on the decision of kotwal, additional judicial commissioner, in the case of jiwandas v. rajrani, air 1921 nag 97, it is necessary to see that the view expressed therein does not run counter to what i have just noticed in the decisions of other high courts. it was merely held in that case that 'once the power of the court is properly invoked, as it is in this case, it is competent to, and 1 think, advisable for the court to go into the question of appointing a person itself under the statutory power. on the other hand, it is also necessary to read what another learned single judge of this court has observed in the case of rajkumar mahant v. indra kumari, 1972 mplj 775. shiv dayal, j., as his lordship then was, held in very categorical terms that the two enactments hmga and gwa are supplementary and provisions thereof must be read together and harmonised. because, hmga does not specifically lay down powers of the court to appoint or declare guardian and the provisions of sections 7 and 17 of gwa would apply to a case when a hindu father applies under section 6 read with section 25, gwa to claim custody of his minor child residing with the mother on the ground that he was the natural guardian. it was further held that such an application must be determined with reference to the paramount consideration as to the welfare of the minor and father's plea was rejected in the facts and circumstances of the case, holding that leaving the child to remain in the mother's company and custody was in the best interest of the minors and their welfare. the decision in duraiswamy's case, air 1977 mad 304 was pressed in service by shri modi on the interpretation of section 5(b) of hmga, but 1 could not read anything therein which could be said to run counter to the view which 1 have already taken. only when provisions in the two parallel enactments traverse the same field, as 1 have observed, there can be no doubt that those of hmga would override those of gwa. that indeed is the ratio in duraiswamy (supra) also. in that case, the contest was between, on one side section 8(2) and 9(5) of hmga and on the other side section 28 of gwa; and it cannot be disputed that the several provisions of the two enactments all deal with the power of a guardian and not of the court. the division bench decision in the case of rattan amol singh, air 1961 punj 51, also cited by shri modi, does not even tend any assistance to the contention pressed by him. on the other hand, i have no hesitation to say that it supports the view which i have taken to the effect that the courts are duty-bound to read conjointly only the relevant provisions. in that case also, as in rajkumar mahant, (1972 mplj 775) (supra), father's plea under section 25, gwa was rejected holding that in the best interest of the minor, it was expedient that the child should remain in the company of the mother as that subserved its welfare in the best manner possible.12. reading section 9, hmga in its entirety, 1 am inclined to take the view that sub-section (2) thereof does not take away the power of a hindu father to appoint his wife or the child's mother as a guardian in the will executed by him. sub-section (2) merely deals with an appointment made in the will of some other person as a guardian instead of the mother so as to suspend operation of such an appointment during mother's lifetime. support for this view, i find in the absence of any such disqualification in section 8 of the act which deals with the power of a natural guardian as also indeed, in the language of sub-section (1) of section 9 itself. the wide sweep of sub-section (1) cannot be restricted by reading therein anything to exclude from the import of the expression 'a guardianship', the mother. had it been the legislature's intention to restrict the father's power to appoint a testamentary guardian in such manner as to disable him to appoint the mother as such a 'guardian' in the will, that would have been clearly indicated, but subsection (1) does not manifest any indication at all of such a legislative intent. accordingly, when two applications are made under section 7 and declaration is sought by the rival contenders, based on an appointment made under one or more wills, then subsection (3) of section 7 would immediately spring into action to circumscribe the power of the court under sub-section (1) in the matter of making the declaration prayed. in this connection, the provisions of gwa, relevant to section 7(3) to be noted and those of sections 39 and 41 which deal respectively with cases of 'removal' and 'cessation' of a guardian and his authority. in such a case, it would be difficult for the guardianship court to avoid the bar of sub-section (3) and passan order under sub-section (1) of section 7, fin violation of the provisions of sections 39 and 41 of the same act.13. it is necessary also to note in this connection that section 61, isa, makes a will obtained by fraud, coercion or importunity, void. section 213 of the same act provides that unless the court of competent jurisdiction has granted probate of the will under which the right is claimed, no right as an executor or a legatee can be established, but the provisions do not apply to all cases of wills made by any hindu. true it is that this section shall not apply to the will made in the instant case, but the provision of section 216 is noteworthy because of its mandatory character. although it is not obligatory to obtain a probate in case of wills made by any hindu, but when a probate is, in fact, obtained, there can be no doubt that section 216 shall become operative immediately in such a case. notice must also be taken of section 217 which provides that grant of a probate is made only in accordance with the provisions of part ix of the said act. the other provision to be noted is section 227 which provides that when a probate of a will is granted, then it renders valid all intermediary acts of the executor as he may have done after the death of the testator. therefore, when under a will any guardian is appointed and he is appointed an executor of the will, it will be a question of deciding his right under the will to deal with the property of the minor for whose guardianship of person and property any application is made at any time. according to me, therefore, when two different wills, materially different in object and purpose, are propounded in support of a claim for guardianship, it will be necessary to obtain probate of any will to prove the genuineness of the will and of the right that has accrued under the will.14. the incidental question which arises in connection with probate is the question of limitation on which shri modi has made vocal arguments. he has submitted that article 137 of the limitation act, 1963 covers the case of an application for probate and as such, neither party, in the instant case, can now go for a probate inasmuch as the will was executed in 1979. however, i must summarily reject counsel's contention as there are authorities galore taking the view that the limitation act does not deal with enforcement of a right under a will. (see ishan chunder roy (1881) ilr 6 cal 707; bai manek bai, (1883) ilr 7 bom 213; janaki (1885) ilr 8 madras 207; : gnanamuthu, ilr 17 madras 379; kashi chundra, (1892) ilr 19 cal 48. high courts of bombay, clacutta and madras have consistently taken the view that the limitation act merely deals with such suits and applications as are contemplated under the code of civil procedure, reading in the long title of the old limitation act, the legislative intent of the law that the enactment was meant to deal with cases of only 'certain' applications and not 'all' applications. however, i would like to add a few words of my own. in my view, indian succession act is a self-contained code in so far as the question of making of an application for probate or an appeal taken from a decision of the probate court is concerned. this is very clearly manifested in the provisions of sections 217, 264, 299 and 300 of part ix of the act. that apart, on reading the scheme also of the schedule appended to the limitation act, i am of the view that the enactment is not meant to apply to probate proceedings. the schedule which provides for periods of limitation in different classes of cases is in three divisions of which, the first division and the different articles contained therein, deal with only the 'suits'. the second division, deals with 'appeals' and the third with 'application' but sub-caption of the division is also significant in that it expressly refers to 'applications in specified cases'.15. looking into the different articles contained in the third division, i have no doubt that if it was the intention of the legislature that an application for probate made under isa was meant to be covered in third division, a specific provision in that respect would have been made therein. because, article 119 of this division specifically refers to applications made under arbitration act, 1940 and articles 132 and 133 (also of this division) refer to cases of applications made respectively to the high court for certificate of fitness of a case to appeal to the supreme court and to supreme court itself for special leave to appeal. the scheme of the third division of the schedule and indeed the general scheme of the schedule itself, do not at all leave in doubt the position that the application of the limitation act was not extended to probate proceedings. i may also add that while a suit is instituted in any civil court of competent jurisdiction according to the code of civil procedure and local laws enacted in that regard, an application for probate can only be made to the probate court as contemplated in chapter iv of part ix of isa and it has to be decided in accordance with the provisions laid down in that act and in no other manner. reliance, in my opinion, on kerala s.e. board's case, air 1977 sc 282 would not avail shri modi. though their lordships observed in that case that the principle of ejusdem generis cannot be invoked on the language of article 137 so as to exclude other applications from its purview, that was in case in which compensation was claimed under telegraph act and it was not a case of probate under isa and their lordships were not called upon to look into the provisions of isa. indeed, i am of the view that law is also settled to the extent that the belated application for probate would only affect genuineness of the will. as such, according to me, an application for probate cannot be thrown out at the threshold as time-barred, invoking article 137 of the limitation act,16. giving my anxious consideration to the relevant provisions of the two enactments and to the decisions above-referred, i am inclined to take the view that the law is, more or less, crystallised on the following lines :(1) a hindu father or mother in his or.her capacity as natural guardian of the child, has not to make an application under gwa to the court for a declaration as guardian of the child for its person or property; the only relief he or she can claim is that provided by section 25, gwa. (ii) it is not obligatory on the part of the guardianship court to make any appointment or affirmative declaration under section 7, gwa whether there is one or more contenders for guardianship, unless and until the court is satisfied that it is necessary to make such an order for the welfare of the minor in all cases, includinga hindu minor's. (iii) whenever the contenders to guardianship seek declaration on the basis of an appointment made in the will, it shall be well within the jurisdiction of the guardianship court not to decide the question of guardianship and allow them to obtain a probate of the will so that the successful contender can make a fresh application. in case the guardianship proceedings are stayed, hearing of the application of the successful contender may then be resumed, but it shall be open to the unsuccessful contender, indeed, in allcases, to contest the application and invoke court's power under section 39, gwa, in the same proceeding itself. the fact that the testator or the minor is a hindu will not affect court's jurisdiction in this matter. 17. what does not appear to have been so far settled and is more relevant yet for the instant case may now be catalogued on the basis of discussion earlier made :(i) a hindu father's right to appoint his wife, in the will executed by him, as guardian of his child after his death, of his person as well as property, is embedded in sections 6, 8 and 9(1), hmga. the legislative intent in this respect is manifested also in the use of the words 'a hindu widow entitled to .act' in sub-section (3) of section 9, hmga. it is implied that entitlement of a hindu mother, even as a natural guardian, could be restricted in terms of sub-section (1) of section 9. indeed, it was its intention to give full effect and free scope to sub-section (1) to operate uninhibitedly that made the legislature use the words afore-extracted in sub-section (3) to make the position clear. accordingly, when such appointment (in will) is made, a hindu widow's right in that regard, (save her right to minor children's custody under section 25, gwa) is pro tanto restricted. (ii) reference to appointment by will, made in section 7(3), gwa, includes a will made by a hindu father and it is not affected by the provision of section 9(2), hmga. when a hindu father dies executing a will and appointing therein his wife as guardian of person and property of his children, the provisions of section 7(3), gwa would be attracted; without the will being declared void or action taken under section 39 of the act for nullifying the appointment so made or until the appointment ceases to be effective under section 41, no rival claim made under section 7(1) of the said act, would be competent, so as to call for determination of the claim. 18. on the facts of the instant case, 1 have no hesitation to hold that both the applications, made under section 10 of the gwa, invoking court's power under section 7 of the act to make on order for declaring the applicant as the guardian of person and property of the three children, were not maintainable. i say so for more than one reason. firstly, sub-section (3) disabled the court to act under sub-section (l)of section 7 to make a declaration prayed by the respondents till such time as the will propounded by the appellant (ex. p/3) was not declared void by the probate court or the 'appointment' made thereunder was not nullified by the court under section 39 of the act. secondly, the application by the appellant to be declared as a guardian on the basis of a will being contested and a rival claim being set up in the application made by the respondent, it would have been appropriate for the court to direct the contenders to obtain a probate and stay its hands. thirdly, the appellant in her capacity as the natural guardian, could have only made an application under section 25, for restoration to her of the custody of three children and her application for declaration as guardian of their person was wholly misconceived because she was already so declared by law, being the 'natural' guardian of the person of the children. in so far as her claim to guardianship of the property was concerned, free exercise of her right in that regard was evidently circumscribed because a rival will was set up, making her claim doubtful. her application in that capacity was, therefore, clearly misconceived.19. indeed, in the facts and circumstances of the case, the court below failed to exercise its discretion judicially as it failed to consider that no order for guardianship of the property of the minors was necessary for their welfare because of the contentious rights agitated by rival claimants on the basis of two wills which could be better settled in probate proceedings.in any view of the matter, the eldest son deepak having since become adult and living with his mother in his father's house, i am not satisfied that any order of guardianship is warranted today. indeed, such an order cannot be made because of the clear mandate of section 7(3), gwa inasmuch as the appointment made in the will propounded by the respondents has not even 'ceased' in accordance with sections 39 or 41, gwa. it shall, however, be open to the appellant, it is made clear, to obtain probate of the will propounded by her. unless and until the will propounded by the respondents is declared void by the probate court, without taking approciate proceedings against them under section 39, gwa and obtaining an affirmative order thereunder from the guardianship court, the appellant cannot invoke jurisdiction of that court to make an order declaring her as a guardian of the person and property of the minors on the basis of the will propounded by her.20. in the result, this appeal succeeds but it is allowed in part. the impugned order allowing the application of the respondents is set aside; in so far as the order rejects appellant's application, that is maintained. indeed, the application made by the appellant is held misconceived and also not maintainable, being barred by section 7(3) of the guardians and wards act, 1890.21. however, in the facts and circumstances of the case, i consider it appropriate to direct the parties, under section 43 of the guardians and wards act, 1890, to maintian the status quo as regards person and property of minors until any further proceeding is taken by any of them in the light of observations herein made or attainment of majority by the other two minors. the disputed property, 1 direct, shall not be alienated by the partiesand custody of the two minors shall not be altered in any manner without an order passed by a competent court in that regard. the appeal is, thus, disposed of in terms of these directions, but there shall be no order as to costs in this court in this matter.
Judgment:T.N. Singh, J.
1. For the determination of the ticklish question of law that has surfaced in this case, no close parallel on facts being found in any reported decision, hearing of this appeal has unfortunately staggered and disposal delayed.
2. Contenders for guardianship in this case are threesome, albeit in two proceedings, and the wards also are threesome. The mother alone made an application under the Guardians and Wards Act, 1890, for short GWA, for declaration that she was the guardian of the person and property of her sons, Deepak, Dhananjay and Abhay, while another application was made a few days later for the same purpose jointly by the paternal grandmother of the children along with her daughter. Hearing of the two applications was consolidated. Because the other application was allowed and her application was dismissed, the mother has preferred the instant appeal impugning the decision rendered against her in the common judgment disposing of the two applications.
3. Narayanrao Kshirsagar, it is the common case of the parties, died on 25-10-1979 and it is also not disputed that the appellant is his legally married wife and that the three children were born to them. What is, however, seriously disputed is the fact that whether Narayanrao executed, during his lifetime, the Will dated 23-10-1979 on which the appellant has relied or the Will dated 21-10-1979 on which his mother and sister relied. The fact, not in dispute, is also that Narayanrao was afflicted by tuberculosis and he died of that decease after protracted treatment and further that since few years before his death, the husband and wife were not living together. It is also not in dispute that eldest of the three children, Deepak, is, at present, living with his mother, the appellant, in Narayanarao's house, while his two brothers are still living elsewhere with the respondents, their grandmother and aunt. The allegation that Deepak was abducted by the appellant, and the house was occupied forcibly in my opinion, has little relevance to the controversy.
4. Both the wills above-referred, dated 21-10-1979 and 23-10-1979, were proved in the case as Exh. D/6 and P/3 respectively. Learned Additional Judge who heard and disposed of the two applications after consideration of other evidence adduced in the case, took the view that no reliance could be placed on Ex. P/3. On the other hand, according to him Ex. D/6 could be relied on. That apart, considering the fact that the appellant having deserted the company of her husband and the three children for last three years preceding her husband's death, it was difficult to take the view that she had any natural love and affection for the children and it would be expedient for the welfare of the children to declare her as their guardian. He also took the view that the wishes of the deceased expressed in Ex. D/6, in the facts and circumstances of the case, were to be respected and given due importance and further that there was nothing in evidence to suggest that the respondents with whom the three children were living, could not be considered fit persons to be declared their guardians. Indeed, for the welfare of the children -- their education and well-being --the respondents, according to him, were better situate and equipped for being declared as their guardian. The admitted fact indeed is that second respondent, sister of Narayanrao was spinster and she was employed as a teacher in a local school. The wishes of the children themselves were also taken into consideration by the Court below who expressed the desire to live with respondents, and not the appellant.
5. For the view I have taken in this matter, it is not necessary for me to deal with other facts of the case or to engage myself in reappreciation of evidence to decide as to whether the decision on merit is liable to be sustained. Only one thing I would like to stress is that in the Court below as also in this Court, appellant's counsel Shri N.K. Modi very ably and forcefully argued that the appellant being the natural guardian of the children, her claim to be declared as guardian of the three children cannot, in any view of j the matter, be rejected. It is this contention which, though rejected by the Court below, merits serious reconsideration in all its aspects.
6. Reliance was placed by Shri Modi withgreat confidence and composure on theprovisions of Sub-section (2) of Section 9 ofthe Hindu Minority and Guardianship Act,1956, for short, HMGA, to urge that the willEx. D/8 ought to have been totally excludedfrom consideration by the Court below. Hehas also placed reliance on the provisions ofSection 5(b) of the said Act to submit that the i'overriding' effect of the provision havingbeen ignored and overlooked, the decisionrendered is not sustainable in law. However,I am of the view that the provisions relied onare not to be read in isolation and not only ,Sections 2 and 13 of the said Act have also tobe looked into, but some provisions of theother cognate enactments, such as theGuardians and Wards Act, 1890 and IndianSuccession Act, 1925 (ISA) have also to belooked into. According to me, the matterwhich requires serious consideration is rather the import and purport of Section 7(3), GWA.Indeed, in the facts and circumstances of thecase, reference to Sections 61,211,213,216,217 and 227, ISA is also necessary. 7. The relevant provisions of GWA and HMGA, I propose to extract:GWA:
'7. Power of the Court to make order as to guardianship.- (1) Where the Court is j satisfied that it is for the welfare of a minor that an 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.
(2) 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.
(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.'
HMGA:
'2. Act to be supplemental to Act 8 of 1890.-- The provisions of this Act shall be in addition to, and not, save as hereinafter expressly provided, in derogation of, the Guardians and Wards Act, 1890.
5. Overriding effect of Act.-- Save as otherwise expressly provided in this Act.-
(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act. 9. Testamentary guardians and their powers.-- (1) A Hindu father entitled to act as the natural guardian of his minor legitimate children may, by will, appoint a guardian for any of them in respect of the minor's person or in respect of the minor's property (other than the undivided interest referred to in section 12) of in respect of both.
(2) An appointment made under subsection (1) shall have no effect if the father predeceases the mother, but shall revive if the mother dies without appointing, by will, any person as guardian.'
(3) A Hindu widow entitled to act as the natural guardian of her minor legitimatechildren, and a Hindu mother entitled to actas the natural guardian of her minor legitimatechildren by reason of the fact that the fatherhas become disentitled to act as such, may,by wilt, appoint a guardian for any of them inrespect of the minor's person or in respect ofthe minor's property (other than the undivided interest referred to in section 12) or in respect of both.
13. Welfare of minor to be paramount consideration.-- (1) In the appointment or declaration of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount consideration. (2) No person shall be entitled to the guardianship by virtue of the provisions ofthis Act or of any law relating to guardianshipin marriage among the Hindus, if the Court isof opinion that his or her guardianship will not be for the welfare of the minor.' (Emphasisadded).
The obvious need not be stressed that HMGA is not a self-contained Code as it is expressly envisaged in Section 2 thereof that the provisions of GWA are to be resorted to whenever an order is sought from a Guardianship Court in respect even of a Hindu 'minor' as respects his person and property. However, I may also note here what Sections 6 and 8 of HMGA, which are not extracted, do contemplate. The natural guardian of a Hindu minor, in case of a boy, is the father and after him, the mother and the natural guardian has the power to do all acts which are necessary or reasonable and proper for the benefit of the minor for the realisation, protection or benefit of the minor's estate except to the extent the power is circumscribed by Section 8 itself.
8. The first thing to be considered is whether the provisions of Section 9(2), HMGA, at all affect in any manner the force and ambit of Section 7, GWA. Looking at the problem from another angle, it is to be seen if Section 7, GWA is in any way and to any extent 'inconsistent' with the provisions of Section 9(2) or any other provision of HMGA. What appears clear to me is that Section 7, GWA and Section 9, HMGA, operate in two separate fields and have separate purports. While Section 9, HMGA deals with power of a Hindu testamentary guardian, the power of a Court to make an order as to guardianship, in any case, is to be found in Section 7, GWA, Because the power of a Court to pass an order of guardianship as respects a Hindu 'minor' is not 'expressly' affected by any of the provisions of GWA, Keeping in view the provision of Section 2, HMGA, it is difficult to hold that provision of Section 9, HMGA shall affect, in any manner, the provision contained in Section 7, GWA. Indeed, Section 7, GWA empowers a Court, to make an order thereunder for the 'welfare of the minor' and that position also obtains under Section 13, HMGA. Because Section 7, GWA and Section 13, HMGA operate in the same field, I find it difficult to accept the proposition canvassed by Shri Modi that Section 9(2) must have 'overriding effect' in such manner as to affect the power of the Guardianship Court under Section 7, GWA. This legal position must obtain, according to me, by the application of the fundamental canon of statutory interpretation of harmonious construction of statutory provisions. I do not see any warrant in the language of Section 9, to read it in any other manner except that it is not in derogation of the provisions contained in Section 13 of HMGA itself and both supplement Section 7, GWA.
9. It is necessary also, according to me to bear the distinction between the two positions which are statutorily envisaged in Section 7, GWA itself in the power of the Court to 'appoint' and 'declare' a guardian. The further fact to be noted is that neither enactment, GWA or HMGA, makes it obligatory for the Court, acting under Section 7, GWA, to make an order thereunder whenever an application is made for such an order. The power is evidently discretionary and has to be exercised when the Court feels 'satisfied' that it is necessary to make such an order 'for the welfare of the minor'. There is no mandate, whether in Section 13, HMGA, or in Section 7, GWA, on the Court to act positively in all situations and make an affirmative order appointing or declaring any person as a guardian of a Hindu minor until such an order is necessary to be made for the 'welfare of the minor'.
10. I propose to discuss now few decisions cited at the Bar and brought to my notice, having a bearing on these considerations. Long ago in Akhoy Kumari Debi v. Hazari Dassee Debi, AIR 1916 Cal 324, the Division Bench, comprising Jenkins, C.J. and Woodroffe, J. took the view that when there was a contest as to validity of any will any declaration was sought from Court on the basis of an appointment made in the will, it was open to the Court (o exercise its discretion, one way or the other and it may even defer its decision on the question of guardianship until the question of probate had been determined. A learned single Judge of this Court in Mule v. Drupadi, AIR 1952 Madh Bha 93, upheld the order passed by the Guardianship Court recalling its order appointing not the mother, but uncle of the boy and declaring the mother as the guardian in view of the fact that not only she was the natural guardian of the boy, but her appointment had been duly made in a will executed by her husband during his lifetime. Relying on Section 7(3), it was laid down in that case that where a guardian had been appointed by will, any order appointing other person would be void till the powers of the testamentary guardian ceased in accordance with the provisions thereof. That apart, it was also held that when the Court had not considered the question as to whether it was really necessary to appoint a guardian at all, in the facts and circumstances of the case, the order would be without jurisdiction. A Division Bench in Johera Khatun Bibi v. Amin Bibi, AIR 1958 Cal 545, stressed the distinction between cases of appointment and declaration of a guardian under GWA, holding that one can be declared a guardian only when one is already the guardian and that the question of appointment arises when there are rival claims for guardianship and the Court has to determine the person who is most suitable for appointment. Leach, C.J. and Lakshmana Rao, J. in Seeyali Veettil Abubacker v. Ovinakatu Vavyilapurayil Mariyumma, AIR 1946 Mad 110 took the view that an application by a person who was the 'lawful guardian' under the Personal Law does not lie because such an application is not contemplated under Section 8, GWA. A Mohammedan father was held entitled to make only an application under Section 25, GWA for the 'custody' of the son, but the Court was not compelled thereunder to pass an order in his favour because even that Section made it discretionary for the Court to make an order for return of the boy to the custody of the guardian if it was for the welfare of the boy.
11. Because reliance was placed by Shri Modi on the decision of Kotwal, Additional Judicial Commissioner, in the case of Jiwandas v. Rajrani, AIR 1921 Nag 97, it is necessary to see that the view expressed therein does not run counter to what I have just noticed in the decisions of other High Courts. It was merely held in that case that 'once the power of the Court is properly invoked, as it is in this case, it is competent to, and 1 think, advisable for the Court to go into the question of appointing a person itself under the statutory power. On the other hand, it is also necessary to read what another learned single Judge of this Court has observed in the case of Rajkumar Mahant v. Indra Kumari, 1972 MPLJ 775. Shiv Dayal, J., as his Lordship then was, held in very categorical terms that the two enactments HMGA and GWA are supplementary and provisions thereof must be read together and harmonised. Because, HMGA does not specifically lay down powers of the Court to appoint or declare guardian and the provisions of Sections 7 and 17 of GWA would apply to a case when a Hindu father applies under Section 6 read with Section 25, GWA to claim custody of his minor child residing with the mother on the ground that he was the natural guardian. It was further held that such an application must be determined with reference to the paramount consideration as to the welfare of the minor and father's plea was rejected in the facts and circumstances of the case, holding that leaving the child to remain in the mother's company and custody was in the best interest of the minors and their welfare. The decision in Duraiswamy's case, AIR 1977 Mad 304 was pressed in service by Shri Modi on the interpretation of Section 5(b) of HMGA, but 1 could not read anything therein which could be said to run counter to the view which 1 have already taken. Only when provisions in the two parallel enactments traverse the same field, as 1 have observed, there can be no doubt that those of HMGA would override those of GWA. That indeed is the ratio in Duraiswamy (supra) also. In that case, the contest was between, on one side Section 8(2) and 9(5) of HMGA and on the other side Section 28 of GWA; and it cannot be disputed that the several provisions of the two enactments all deal with the power of a guardian and not of the Court. The Division Bench decision in the case of Rattan Amol Singh, AIR 1961 Punj 51, also cited by Shri Modi, does not even tend any assistance to the contention pressed by him. On the other hand, I have no hesitation to say that it supports the view which I have taken to the effect that the courts are duty-bound to read conjointly only the relevant provisions. In that case also, as in Rajkumar Mahant, (1972 MPLJ 775) (supra), father's plea under Section 25, GWA was rejected holding that in the best interest of the minor, it was expedient that the child should remain in the company of the mother as that subserved its welfare in the best manner possible.
12. Reading Section 9, HMGA in its entirety, 1 am inclined to take the view that Sub-section (2) thereof does not take away the power of a Hindu father to appoint his wife or the child's mother as a guardian in the will executed by him. Sub-section (2) merely deals with an appointment made in the will of some other person as a guardian instead of the mother so as to suspend operation of such an appointment during mother's lifetime. Support for this view, I find in the absence of any such disqualification in Section 8 of the Act which deals with the power of a natural guardian as also indeed, in the language of Sub-section (1) of Section 9 itself. The wide sweep of Sub-section (1) cannot be restricted by reading therein anything to exclude from the import of the expression 'a guardianship', the mother. Had it been the Legislature's intention to restrict the father's power to appoint a testamentary guardian in such manner as to disable him to appoint the mother as such a 'guardian' in the will, that would have been clearly indicated, but subsection (1) does not manifest any indication at all of such a legislative intent. Accordingly, when two applications are made under Section 7 and declaration is sought by the rival contenders, based on an appointment made under one or more wills, then subsection (3) of Section 7 would immediately spring into action to circumscribe the power of the Court under Sub-section (1) in the matter of making the declaration prayed. In this connection, the provisions of GWA, relevant to Section 7(3) to be noted and those of Sections 39 and 41 which deal respectively with cases of 'removal' and 'cessation' of a guardian and his authority. In such a case, it would be difficult for the Guardianship Court to avoid the bar of Sub-section (3) and passan order under Sub-section (1) of Section 7, fin violation of the provisions of Sections 39 and 41 of the same Act.
13. It is necessary also to note in this connection that Section 61, ISA, makes a will obtained by fraud, coercion or importunity, void. Section 213 of the same Act provides that unless the Court of competent jurisdiction has granted probate of the will under which the right is claimed, no right as an executor or a legatee can be established, but the provisions do not apply to all cases of wills made by any Hindu. True it is that this section shall not apply to the will made in the instant case, but the provision of Section 216 is noteworthy because of its mandatory character. Although it is not obligatory to obtain a probate in case of wills made by any Hindu, but when a probate is, in fact, obtained, there can be no doubt that Section 216 shall become operative immediately in such a case. Notice must also be taken of Section 217 which provides that grant of a probate is made only in accordance with the provisions of Part IX of the said Act. The other provision to be noted is Section 227 which provides that when a probate of a Will is granted, then it renders valid all intermediary acts of the executor as he may have done after the death of the testator. Therefore, when under a Will any guardian is appointed and he is appointed an executor of the Will, it will be a question of deciding his right under the Will to deal with the property of the minor for whose guardianship of person and property any application is made at any time. According to me, therefore, when two different Wills, materially different in object and purpose, are propounded in support of a claim for guardianship, it will be necessary to obtain probate of any Will to prove the genuineness of the Will and of the right that has accrued under the Will.
14. The incidental question which arises in connection with probate is the question of limitation on which Shri Modi has made vocal arguments. He has submitted that Article 137 of the Limitation Act, 1963 covers the case of an application for probate and as such, neither party, in the instant case, can now go for a probate inasmuch as the Will was executed in 1979. However, I must summarily reject counsel's contention as there are authorities galore taking the view that the Limitation Act does not deal with enforcement of a right under a Will. (See Ishan Chunder Roy (1881) ILR 6 Cal 707; Bai Manek Bai, (1883) ILR 7 Bom 213; Janaki (1885) ILR 8 Madras 207; : Gnanamuthu, ILR 17 Madras 379; Kashi Chundra, (1892) ILR 19 Cal 48. High Courts of Bombay, Clacutta and Madras have consistently taken the view that the Limitation Act merely deals with such suits and applications as are contemplated under the Code of Civil Procedure, reading in the long title of the old Limitation Act, the legislative intent of the law that the enactment was meant to deal with cases of only 'certain' applications and not 'all' applications. However, I would like to add a few words of my own. In my view, Indian Succession Act is a self-contained Code in so far as the question of making of an application for probate or an appeal taken from a decision of the Probate Court is concerned. This is very clearly manifested in the provisions of Sections 217, 264, 299 and 300 of Part IX of the Act. That apart, on reading the Scheme also of the Schedule appended to the Limitation Act, I am of the view that the enactment is not meant to apply to Probate proceedings. The schedule which provides for periods of limitation in different classes of cases is in three divisions of which, the first division and the different Articles contained therein, deal with only the 'suits'. The second division, deals with 'appeals' and the third with 'application' but sub-caption of the division is also significant in that it expressly refers to 'Applications in Specified Cases'.
15. Looking into the different Articles contained in the third division, I have no doubt that if it was the intention of the legislature that an application for probate made under ISA was meant to be covered in third division, a specific provision in that respect would have been made therein. Because, Article 119 of this division specifically refers to applications made under Arbitration Act, 1940 and Articles 132 and 133 (also of this division) refer to cases of applications made respectively to the High Court for certificate of fitness of a case to appeal to the Supreme Court and to Supreme Court itself for special leave to appeal. The scheme of the third division of the Schedule and indeed the general scheme of the Schedule itself, do not at all leave in doubt the position that the application of the Limitation Act was not extended to probate proceedings. I may also add that while a suit is instituted in any civil Court of competent jurisdiction according to the Code of Civil Procedure and local laws enacted in that regard, an application for probate can only be made to the Probate Court as contemplated in Chapter IV of Part IX of ISA and it has to be decided in accordance with the provisions laid down in that Act and in no other manner. Reliance, in my opinion, on Kerala S.E. Board's case, AIR 1977 SC 282 would not avail Shri Modi. Though their Lordships observed in that case that the principle of ejusdem generis cannot be invoked on the language of Article 137 so as to exclude other applications from its purview, that was in case in which compensation was claimed under Telegraph Act and it was not a case of probate under ISA and their Lordships were not called upon to look into the provisions of ISA. Indeed, I am of the view that law is also settled to the extent that the belated application for Probate would only affect genuineness of the Will. As such, according to me, an application for Probate cannot be thrown out at the threshold as time-barred, invoking Article 137 of the Limitation Act,
16. Giving my anxious consideration to the relevant provisions of the two enactments and to the decisions above-referred, I am inclined to take the view that the law is, more or less, crystallised on the following lines :
(1) A Hindu father or mother in his or.her capacity as natural guardian of the child, has not to make an application under GWA to the Court for a declaration as guardian of the child for its person or property; the only relief he or she can claim is that provided by Section 25, GWA.
(ii) It is not obligatory on the part of the Guardianship Court to make any appointment or affirmative declaration under Section 7, GWA whether there is one or more contenders for guardianship, unless and until the Court is satisfied that it is necessary to make such an order for the welfare of the minor in all cases, includinga Hindu minor's.
(iii) Whenever the contenders to guardianship seek declaration on the basis of an appointment made in the Will, it shall be well within the jurisdiction of the Guardianship Court not to decide the question of guardianship and allow them to obtain a probate of the will so that the successful contender can make a fresh application. In case the Guardianship proceedings are stayed, hearing of the application of the successful contender may then be resumed, but it shall be open to the unsuccessful contender, indeed, in allcases, to contest the application and invoke court's power under Section 39, GWA, in the same proceeding itself. The fact that the testator or the minor is a Hindu will not affect court's jurisdiction in this matter.
17. What does not appear to have been so far settled and is more relevant yet for the instant case may now be catalogued on the basis of discussion earlier made :
(i) A Hindu father's right to appoint his wife, in the Will executed by him, as guardian of his child after his death, of his person as well as property, is embedded in Sections 6, 8 and 9(1), HMGA. The Legislative intent in this respect is manifested also in the use of the words 'a Hindu widow entitled to .act' in Sub-section (3) of Section 9, HMGA. It is implied that entitlement of a Hindu mother, even as a natural guardian, could be restricted in terms of Sub-section (1) of Section 9. Indeed, it was its intention to give full effect and free scope to Sub-section (1) to operate uninhibitedly that made the Legislature use the words afore-extracted in Sub-section (3) to make the position clear. Accordingly, when such appointment (in will) is made, a Hindu widow's right in that regard, (save her right to minor children's custody under Section 25, GWA) is pro tanto restricted.
(ii) Reference to appointment by Will, made in Section 7(3), GWA, includes a Will made by a Hindu father and it is not affected by the provision of Section 9(2), HMGA. When a Hindu father dies executing a Will and appointing therein his wife as guardian of person and property of his children, the provisions of Section 7(3), GWA would be attracted; without the Will being declared void or action taken under Section 39 of the Act for nullifying the appointment so made or until the appointment ceases to be effective under Section 41, no rival claim made under Section 7(1) of the said Act, would be competent, so as to call for determination of the claim.
18. On the facts of the instant case, 1 have no hesitation to hold that both the applications, made under Section 10 of the GWA, invoking court's power under Section 7 of the Act to make on order for declaring the applicant as the guardian of person and property of the three children, were not maintainable. I say so for more than one reason. Firstly, Sub-section (3) disabled the Court to act under Sub-section (l)of Section 7 to make a declaration prayed by the respondents till such time as the Will propounded by the appellant (Ex. P/3) was not declared void by the Probate Court or the 'appointment' made thereunder was not nullified by the Court under Section 39 of the Act. Secondly, the application by the appellant to be declared as a guardian on the basis of a Will being contested and a rival claim being set up in the application made by the respondent, it would have been appropriate for the Court to direct the contenders to obtain a probate and stay its hands. Thirdly, the appellant in her capacity as the natural guardian, could have only made an application under Section 25, for restoration to her of the custody of three children and her application for declaration as guardian of their person was wholly misconceived because she was already so declared by law, being the 'natural' guardian of the person of the children. In so far as her claim to guardianship of the property was concerned, free exercise of her right in that regard was evidently circumscribed because a rival Will was set up, making her claim doubtful. Her application in that capacity was, therefore, clearly misconceived.
19. Indeed, in the facts and circumstances of the case, the Court below failed to exercise its discretion judicially as it failed to consider that no order for guardianship of the property of the minors was necessary for their welfare because of the contentious rights agitated by rival claimants on the basis of two Wills which could be better settled in Probate proceedings.
In any view of the matter, the eldest son Deepak having since become adult and living with his mother in his father's house, I am not satisfied that any order of guardianship is warranted today. Indeed, such an order cannot be made because of the clear mandate of Section 7(3), GWA inasmuch as the appointment made in the Will propounded by the respondents has not even 'ceased' in accordance with Sections 39 or 41, GWA. It shall, however, be open to the appellant, it is made clear, to obtain probate of the Will propounded by her. Unless and until the will propounded by the respondents is declared void by the Probate Court, without taking approciate proceedings against them under Section 39, GWA and obtaining an affirmative order thereunder from the Guardianship Court, the appellant cannot invoke jurisdiction of that Court to make an order declaring her as a guardian of the person and property of the minors on the basis of the Will propounded by her.
20. In the result, this appeal succeeds but it is allowed in part. The impugned order allowing the application of the respondents is set aside; in so far as the order rejects appellant's application, that is maintained. Indeed, the application made by the appellant is held misconceived and also not maintainable, being barred by Section 7(3) of the Guardians and Wards Act, 1890.
21. However, in the facts and circumstances of the case, I consider it appropriate to direct the parties, under Section 43 of the Guardians and Wards Act, 1890, to maintian the status quo as regards person and property of minors until any further proceeding is taken by any of them in the light of observations herein made or attainment of majority by the other two minors. The disputed property, 1 direct, shall not be alienated by the partiesand custody of the two minors shall not be altered in any manner without an order passed by a competent Court in that regard. The appeal is, thus, disposed of in terms of these directions, but there shall be no order as to costs in this Court in this matter.