Establishing the creation of a joint undivided Hindu family by agreement requires cogent evidence. In appointing a guardian for a minor's property, the child's welfare is paramount, and the discretion of local courts regarding the suitability of a guardian should be given significant deference.

Lord Atkin.:-

This is an appeal from the decision of the High Court, Patna, affirming a decision of the District Judge, Cuttack, allowing an application by a relative of the minor son of appellant 1 and appellant 2 for the appointment of a guardian of the property of the minor son of appellant 1. The position arose in this way : Up to 1919 there was a joint Hindu family consisting of the branches of three brothers Bhaban, Gouranga's son Muralidhar, the applicant in this case, and Khotrabasi. They had some considerable zamindari properties and they also carried on a moneylending business. In the year 1918 Muralidhar, who was the nephew of the other two members of the family, applied for and obtained, a partition. It is significant that the partition proceedings continued between all three members of the family as late as the year 1926. It is said, however, on the present application that Bhaban and Khetrabasi, the two brothers, within a few months, in 1919, agreed again to unite; and from that time, it is said, they became a joint undivided family. It is said that in those circumstances if in fact they were a joint family there is no jurisdiction to appoint a guardian of the property of the minor son of one of the members of the family. Therefore three questions arise in this case : First, was there a uniting of the family in 1919 ? Secondly, if there was, can a guardian be appointed of the property of that minor? Thirdly, if there was no uniting then was the applicant right in asking for and obtaining an order for the appointment of a guardian of the property of the minor son, other than the mother herself ? On the first point, the learned District Judge did not pass an opinion, but he held that the property had passed to the minor son by inheritance even if there had been a uniting and that he had jurisdiction, therefore, to consider the question of a guardian and he appointed not the applicant who had originally asked to be appointed guardian of the property, but an independent lawyer as manager of the property. The property is one of very considerable extent. Its value has been estimated by different people at something between four and fourteen lac of rupees.

On appeal the learned Judges went very carefully into the evidence of the uniting of these two brothers and in a judgment in which they reviewed the whole of the evidence, which is largely documentary, they came to the conclusion that it was not proved that there had been in the year 1919, or at all, any such uniting as has been alleged. It is unnecessary to add that it requires very cogent evidence to satisfy the burden of establishing that by agreement between the parties they have succeeded in so altering; their status as to bring themselves within all the rights and obligations that follow from the creation of a joint undivided Hindu family, and the learned Judges, considering the whole of the evidence, have come to the conclusion that the respondents to the application did not make out their case of a united family. There is no necessity, as it appears to their Lordships, to consider all the evidence once more. It is sufficient to say that their Lordships are completely satisfied with the review of the evidence made by the learned Judges and accept and agree with their decision. In particular, perhaps it may be pointed out that this partition between the two brothers and the son of the third brother continued for about six or seven years after the alleged uniting, and it seems very improbable, to say the least of it, that the brothers, once they were united, would allow the partition proceedings to go on so as to separate between themselves their own property which, upon the footing now put forward, had become joint. That is only one of the many circumstances in the case. Undoubtedly, if the uniting was not proved there was jurisdiction to appoint a guardian of the property of the infant. The principal matter to be considered in, these cases is the welfare of the i