This appeal is directed against the judgment dated 28.8.97 passed by the learned District Court, Kamrup, Guwahati in GC Case No. 374 of 1996 and GC Case No. 3 8 of 1996. The learned District Court by the impugned judgment appointed the respondent Sri Gopinath Das as the guardian of Jagjiban Das, a minor, who lost his parents practically before he saw the light of the day. Being aggrieved by the aforesaid judgment, the appellant (the grand mother i.e. mother's mother of the minor) has preferred this appeal.

2. I have heard Mr. BK Goswami, learned senior Counsel assisted by Ms. T Goswami, learned counsel for the appellant and also Mr. S. Baruah, learned counsel for the respondent.

3. At the very outset, I would like to clear the facts for better appreciation of the controversy at hand. Biren Das, father of the minor Jagjiban Das, died in a scooter accident on 30.9.94. He left behind his wife who was on family way. She delivered a male child on 7.12.94 named Jagjiban. The mother of the child Indira Das also died after giving birth to Jagjiban and, since then, the minor has been residing with the grandmother Smti Laheswari Das, the appellant herein.

4. We may recapitulate herein brief the provisions of law relating to the appointment of guardian of a minor. It would appear from section 8 of the Guardians and Wards Act, 1890, in short the Act, that an order for appointment of a guardian could be made only in an application filed by the person desirous of being, or claiming to be, the guardian of the minor, or any relative or friend of the minor, or the Collector of the district. In the instant case, the claim has been made by the respondent who is the elder brother of the deceased Biren Das and Smti Laheswari Das, the maternal grandmother of the minor. They do not suffer from any disqualification and both of them are eligible for consideration for appointment as guardian of the minor.

5. Section 17 of the Act provides for the matters to be considered by the Court while passing orders on appointment of a guardian. It reads as follows :

"17. Matters to be considered by the Court in appointing guardian: (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 minor is old enough to form an intelligent preference, the Court may consider that preference.

(5) The Court shall not appoint or declare any person to be a guardian against his will."

6. It would appear from sub-section (1) and sub-section (2) of section 17 quoted above that it is the welfare of the child which is of paramount consideration in the matter of appointment of the guardian of a minor. Mr. BK Goswami, learned senior counsel argued that although the respondent is the brother of the father of the minor and closely related to the minor in comparison to the grandmother, yet the materials available on record with regard to the welfare of the child do not permit the respondent to be given the responsibility of being the guardian. Mr. Goswami argued that the appellant is getting a family pension of Rs. 1,500 per month and besides she owns landed properties left by her husband and one of her son is also an Engineer and they are taking care of the minor to the maximum extent possible with profound love and affection as a child should get. Mr. Goswami, also pointed out that the respondent filed an application under section 372 of the Indian Succession Act for grant of a Succession Certificate in respect of a sum of Rs. 4,85,219

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