ORDER:- The appellant applied to the lower Court for appointing him as the guardian of the person and property of 2 minor girls Kyalani Devi and Memcha Devi born on 26-8-1947 and 7-11-1949 respectively. They are the children of his younger brother Amuchaoba Singh, who died 7 or 8 months before he filed the application. The mother of Kyalani Devi had predeceased her father, while the mother of Memcha Devi had remarried. Kyalani Devi was in the custody of one Birahari Singh, her maternal grand-father, while Memcha Devi was in the custody of Yalma Devi, her maternal grand-mother, at the time when the application was filed. The deceased father of the minors left a sum of Rs.3,500/- which is in the Assam Ply-wood Limited and the said money has to be collected. He had also 1/3rd share in an ingkhol which was in the possession of the appellant himself, and the value of which was said to be Rs.500/-. The appellant was willing to give security for Rs.5,000/- to be in charge of the property of the minors. The appellant stated in his application that he was the nearest relative of the minors, that he was living with his family at Khagempalli, that he was in good circumstances and having an income of about Rs.1,500/- per year and hence a proper and good person to be appointed guardian of the minors.

2. Notice of the application was taken in the usual course. One Telem Birahari Singh, the maternal grand-father of minor Kyalani Devi filed a counter statement opposing the application of the appellant. He stated that after the death of Kyalani Devis father, the appellant has not spent a single pie for the benefit of the minors and that ever since the death of Kyalani Devis mother when she was only 11 days old, she has been under the care and custody of Birahari Singh. He also said that the petitioners object in making the application was to get hold of the money lying in the Assam Ply-woods Ltd., and not the benefit of the minors. Nobody came forward to object to the application as far as Memcha Devi was concerned.

3. The lower Court posted the case for enquiry to 21-2-1961. On that date Birahari Singh was absent. The appellant examined himself and another witness in support of his application. There was no cross-examination of the witnesses. The evidence of the witnesses was to show why it was necessary to appoint a guardian for the person and property of the minors and to say that the appellant was the fit and proper person to be appointed such guardian as the elder brother of the deceased father of the minors.

4. The lower Court dismissed the application. The reasons given by the lower Court are as follows. No cause has been shown for making the application and no reason was given to show that Birahari Singh and Yaima Devi in whose custody the two minors were respectively living were unfit and no charge of waste or mismanagement by them has been proved and the mere desire of the other relatives of the minors that a guardian should be appointed is not sufficient to deprive the custodians of their right to be guardians of the minors, merely because there is an application, and hence it is not necessary that a guardian should be appointed as no allegation has been made against Birahari Singh and Yaima Devi. The lower Court, therefore, felt that the application was filed not for the welfare of the minors but with the object of using the sum of Rs.3,500/- lying to the Assam Ply-woods Ltd., and hence the application was not bona fide. Lastly the lower Court stated that the application was not supported by a sworn affidavit.

5. I am afraid that the lower Court has not dealt with this case as it should have done. The application was filed under S.7 of the Guardians and Wards Act. The form of the application is given in S.10. It is not disputed that the application was filed as per the form given in S.10 and it has been properly verified as required under S.10(3).

Section 10 does not require a sworn affidavit to be filed in support of the application. H

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