The welfare of the minor is the paramount consideration in determining who should be appointed guardian, and this may override the father's legal right to guardianship.

Sinha, J.

1. This appeal by the father has arisen out of an order of Mr. P.K. Nag, District Judge of Shahabad, allowing the application of the mother for the guardianship of her minor son.

2. Appellant Bhola Nath was married to the respondent Sharda Devi some time in 1949, and she gave birth to a male child on 13-4-1951, at Buxar, which is her mothers place. According to her, the appellant, who is a resident of Banaras, was not a man of good morals, he was given to drinking also and she was illtreated by him. She was sent to Buxar by the husband to deliver the child, and, after the child was born, she went to her husbands place at Banaras for a few months. She was again illtreated, and she came back to her mothers place at Buxar with the baby. Some time later, the appellant came to Buxar to take her back to Banaras, but she refused to go there because of her illtreatment.

A few days before the present application was filed, her husband stealthily took away the child from Buxar to Banaras. Various efforts were made on behalf of the mother to get back the child, but the child was not returned. The application was made on 6-6-1952, when the child was a little over a year old. The application was opposed by the appellant on the ground that the Shahabad District Judges Court had no jurisdiction, and that the appellant, as father, was entitled, in law, to the guardianship of the child. The appellant repudiated the allegation of the mother that he had stealthily taken away the child from Buxar to Banaras. His case on that point was that the mother of the child, along with the baby, was living with him at Banaras, and that one day the mother left the child at Banaras and came away to Buxar taking some ornaments with her.

3. The learned Judge in the Court below has held that the Court had complete jurisdiction, that the appellant had forfeited his right to be the guardian of the minor child, that the allegation that the mother left the child at Banaras and came away to Buxar was entirely false and that the mothers version that the appellant stealthily took away the child from Buxar to Banaras was established. On these findings, the order in question was made.

4. All the points taken in the Court below have been taken in this Court also. The question of jurisdiction turns upon the interpretation of subsection (1) of Section 9, Guardians and Wards Act, 1890, which runs as follows:

"If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides."

5. The answer to the contention depends upon the meaning of the expression "the place where the minor ordinarily resides." If it is held that the minor ordinarily resided at Buxar, the District Court of Shahabad will have undoubted jurisdiction. If, on the other hand, it is held that the minor ordinarily resided at Banaras, that Court will have no jurisdiction. A number of authorities have been cited at the bar for the elucidation of the meaning of that expression. The point at issue in the present case was not decided in -- Chimanlal Ganpat V/s. Rajaram Maganctiand, AIR 1937 Bom 158 (A) as there was

"no dispute on this point (regarding the ordinary residence of the minor) either in the District Court or before Divatia, J., it being common ground apparently that the minor must be taken to be ordinarily resident in Poona".

In the matter of -- Lovejoy Patell, AIR 1944 Cal 433 (B), the applicant resided in Beadon Street, in the town of Calcutta, and she wanted to be appointed guardian of two minor children of Yacoob Fatell and zainab Patell (father and mother, respectively, of the minors) who lived in Circus Avenue, Calcutta. The application for guardianship was made in the Calcutta High Court on its original side. The objection on behalf of the parents was to the jurisdiction of that Court on the ground that Circus Avenue, Calcutta, where the minors resided at the t