Maintainability of application by father for appointment as guardian of minor.

This is a petition under sections 7 to 10 and 29 of the Guardians and Wards Act read with clause 17 of the Letters Patent, for appointing the petitioner herein as the guardian of his minor son and enabling the petitioner to mortgage a particular item of property belonging to the minor, for fixing the maintenance of the minor and also the remuneration of the petitioner. It is stated that the properties which belong to the minor have been settled on the minor by his paternal grandfather under deeds of settlement, dated 19th July, 1955 and 7th March, 1962.

The first question for consideration is whether this petition for appointment of the petitioner as the guardian of his minor son is maintainable at all. There are two decisions of this Court, both of them by Benches, holding that under the Hindu Law, a father" is the guardian of his minor son and he does not require any order from any Court appointing him or declaring him as the guardian of his minor son. and consequently an. application for such a purpose under the Guardians and Wards Act is not maintainable. The said decisions are Sivasankara Mudaliar v. Radhabai Ammal1, and Abubacker v. Mariyamma2. The learned Counsel for the petitioner contends that these decisions deal with the appointment of the father as the guardian of the person of his minor son. But these decisions do not make any distinction between the appointment of a guardian of the person of the minor or the property of the minor, since under the personal law applicable to the minor, the father is the natural guardian of both the person and the property of the minor. On the other hand, Mr. T.A. Ramaswami Reddy, learned Counsel for the petitioner, brought to my notice a decision of this Court in Thiruvengada Mudaliars In re3. (In the matter of A. T. Vasudevan and others, minors). That case was concerned with the appointment of the father as the guardian of his minor sons in respect of the joint family property belonging to the father as well as the minor sons. In my opinion, the guardianship with reference to the undivided interest of a minor in a joint family property stands on a different footing from the guardianship in respect of the property belonging to the minor exclusively and that distinction has been given statutory recognition in section 6 of the Hindu Minority and Guardianship Act, 1956 itself. That section provides that the natural guardians of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are in the case of a boy or an unmarried girl-the father, and after him, the mother. Therefore, even before the enactment of the Hindu Minority and Guardianship Act, the Courts have recognised the distinction between the appointment of the father as the guardian of his minor son in respect of the minor’s property and the appointment of the father as the guardian of his minor son in respect of his undivided interest in the joint family property. Hence the decision in Thiruvengada Mudaliar3, which only dealt with the appointment of the father as a guardian in respect of the undivided interest which the minors had in the joint family property cannot be of any assistance to support the case of the petitioner in this case. Then Mr. T. A. Ramaswami Reddy relied on the decision in Seera Reddi v. Chenna Reddi4. In that case an application under section 10 of the Guardians and Wards Act was made by a father for declaring him as the guardian of his minor son and that application was dismissed by the learned District Judge. But on appeal a Bench of this Court reversed that conclusion. It may be of interest to note that the judgment itself points out the two grounds on which the learned District Judge dismissed the application. The first reason was that since the death of the minor’s mother immediately after the birth of the minor, the father had married a second wife and was at the relevant time living in th