The court cannot declare a person to be a guardian against his will, even if the person is deemed to be the testamentary guardian.

Venkatasubba Rao, J.

1. The father of the minors in question made a will describing the appellant before us as his executor. The minors mother presented a petition in the lower Court under the Guardian and Wards Act, contending that the appellant was not merely the executor but also the minors testamentary guardian, and prayed for his removal as such guardian and for appointment of herself in his stead. The lower Court made an order imposing certain conditions on the appellant in regard to the discharge of his duties as guardian and directing him to furnish security for an amount which has been specified. The correctness of this order has been impeached before us.

2. Though the learned Judge does not say under what provision of law he has acted, the respondents Counsel seeks to justify the order by reference to Section 43 of the Guardian and Wards Act. But that section enables a Court to regulate by its order the conduct of guardians either appointed or declared by the Court. That leads us to the question, can the appellant be declared under the provisions of the Act, the testamentary guardian of the minors? Their mother, as already stated, contends that on a proper construction of the will, the appellant is their testamentary guardian. But this position is controverted by the appellant, who maintains that under the will, he is merely an executor and not the minors guardian. Granting that the mothers contention is right, namely, that the appellant is the minors testamentary guardian, she cannot invoke in her favour Section 43 unless the Court can make a declaration to that effect under the Act. Section 17(5) provides very clearly that the Court shall not declare any person to be a guardian against his will. It therefore follows that, even should the mothers contention be right, we cannot against the will of the appellant make a declaration that he is the minors testamentary guardian. The application of Section 43 is thus excluded, and the lower Courts order, for which support can be sought, if at all, in Section 43, must be held to be wrong. In the circumstances stated, it is unnecessary to express any opinion on the question, whether the appellant on a true construction of the will, is or is not the minors testamentary guardian.

3. We may observe that Section 39, which refers to the removal of guardians, is wider in its scope than Section 43. Under the former section, the Court may remove a guardian appointed or declared by the Court or a guardian appointed by a will or other instrument. But the prayer for removal was abandoned in the lower Court and this section therefore cannot be relied on by the respondent.

4. Finally, we must point out, that in any view of the matter, the lower Courts order cannot be supported. The Judge observes that no evidence has been adduced by the petitioner in support of the allegations in her affidavit. That being so, we fail to see, even granting for a moment that Section 43 applies, how the lower Courts order can be justified.

5. The appeal is allowed with costs less the Advocates fee to be paid by the respondent.