Govinda Menon, J.-This is an appeal under sections 19 and 47 of the Guardian and Wards Act against the order of the learned District Judge of Cuddappah by which the learned District Judge dismissed an application by the appellant herein under section 10 of the same statute for a declaration that he is the guardian of his minor son who was born on the 15th April, 1944.

The two grounds on which the learned District Judge dismissed the application are firstly, that since the death of the minor’s mother immediately after the birth of the minor, the father, the appellant, has married a second wife and is now living in the house of the second wife’s father. The second reason which impelled the learned Judge to reject the application is that the petition to the lower Court was made 19 months after and therefore there was undue delay in the making of it. In our opinion, the learned Judge’s view that the application was made 19 months later is based upon a misconception.

A few facts have to be stated in order to understand the exact situation. The minor was born on the 15th April, 1944, and the mother died immediately. The joint family of which the appellant was a member consisted of himself and his elder brother, the first respondent and it is contended that the second respondent, the sister’s husband of the appellant and the first respondent, is also a member of the family having been adopted into it as an illatom son-in-law. Therefore the admitted members of the family are the petitioner and the first respondent and their children but the second respondent also claims to be a member of the family. It is alleged that on account of the appellant not admitting the right of the second respondent as an illatom son-in-law, there were disputes between the parties which necessitated the appellant leaving the family house in July, 1945. Learned counsel for the appellant urges that his client was driven out of the family house, while, on the other hand, Mr. K.S.Rajagopalachari for the first respondent submits that it was rather a case of desertion from the family house and not one of having been driven out. Whatever that might be, it is clear that the appellant was living in the family house until July, 1945. In about September, 1945, the appellant brought a suit for partition of the joint family properties making the first and second respondents parties to the suit. There are other parties with whom we are not concerned. It is after the filing of the partition suit, i.e., nearly four months later, on 27th February, 1946, that the present application under section 10 was made to the lower Court. The learned counsel for the first respondent also states that within a short time after the second marriage it was that the appellant brought the suit for partition.

In these circumstances, the question for consideration is whether the learned Judge was justified in refusing the appellant’s request. That the Court has no power to appoint a guardian of the person of a minor, whose father is living ana is not in the opinion of the Court unfit to be the guardian of the person of the minor, has been decided in Annie Besant v. Narayaniah1. In a very recent case in Rama Iyer v. Nataraja Iyer2 to which one of us was a party, it has been held that the fact that the father has married a second wife and that his son by the first wife, who at the time of the petition was 14 years of age and was living with the maternal relations, is not sufficient justification for depriving the father of the natural rights of guardianship which inhere in him according to the Hindu Law. As against these cases, Mr. Rajagopalachan invites our attention to four cases: Battha Chetty v. Ponnuswami Chetty3, Abubucker v. Mariamma4, Muthuswami Chettiar v. K.M.Chinna Muthuswami Mooppanar5 and Ponniah Asari v. Suppiah Asari6. It is a proposition so well known and established that it cannot be questioned at all that the welfare of the minor is the prime consideration in such matters and that

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