Jagat Narayan, J.—This is an appeal by one Rafiq a Muslim father, against an order of the Civil Judge Bundi passed under sec. 25 of the Guardians and Wards Act directing him to deliver the custody of his 3-1/2 years old daughter to his wifes mothers fathers sister Smt. Bashiran.

2. Rafiq divorced the minors mother Smt. Gulshan on 12.1.59. After the divorce the minor remained in the custody of her minor who was living with her father Bahauddin Smt. Gulshan however remarried on 29.7.60 and went to live with her husband leaving her minor daughter with her father Bahauddin. According to the finding of the learned Senior Civil Judge Rafiq took away his minor daughter from the house of Bahauddin without his consent. The present application under sec. 25 of the Guardianship Act was then filed on 1 .8.60 by Bahauddins sister Smt. Bashiran. This application was granted by the learned Senior Civil Judge on the ground that under the Mahomedan Law Smt. Banshiran had a preferential right to the custody of the minor, being the maternal aunt of her mother. According to Tyabjis Mahomedan Law, Third Edition, sec. 236 (at pages 275) the following persons have a preferential right over the father to the custody of a minor girl before she attains the age of puberty:–

1. Mothers mother.

2. Fathers mother.

3. Mothers grandmother howsoever high.

4. Fathers grandmother howsoever high.

5. Full sister.

6. Uterine sister.

7. Daughter of full sister, howsoever low.

8. Daughter of uterine sister, howsoever low.

9. Full maternal aunt, howsoever high.

10. Uterine maternal aunt, howsoever high.

11. Full paternal aunt, howsoever high.

The learned Senior Civil Judge ignored the provisions of sec. 19 of the Guardians and Wards Act, which runs as follows :—

"Nothing in this Chapter shall authorise the Court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards, or to appoint or declare a guardian of the person—

(a) of a minor who is a married female and whose husband is not, in the opinion of the Court, unfit to be guardian of her person, or

(b) of a minor whose father is living and is not, in the opinion of the Court, unfit to be guardian of the person of the minor, or

(c) of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor."

He did not come to a finding that the father is unfit to be the guardian of the person of the minor. It may be mentioned here that where the provisions of the personal law are in conflict with the provisions of the Guardians and Wards Act the latter prevail over the former. It is only where the provisions of the personal law are not in conflict with the provisions of the Guardians and Wards Act that the court can take into consideration the personal law applicable to the minor in the appointment of a guardian. The provisions of sec. 19 of the Guardians and Wards Act prevail over the provisions of sec. 17 which runs as follows :—

"(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 the minor is old enough to form an intelligent preference, the Court may consider that preference.

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

In Siddq-un-Nissa Bibi Vs. Nizam-Uddin Khan(l) Sulaiman Acting C., J. observed at page 134—

"The personal law has been abrogated to the extent laid down in the Act. Where, however, the pers

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