KAILASAM, J.

1. This appeal is filed under Cl. 15 of the Letters Patent against the order of Mohan, J. holding that the petition filed by the appellant-father praying for declaration that he is the guardian of the persons of the minors and for he restoration of the custody of the minors to the father is not maintainable.

2. The petition is continuation of a long standing and bitter litigation between the father and the mother of the minor children. A suit O.M.S. No. 12 of 1962 was filed for Judicial separation Judicial separation was granted and certain directions were given regarding the custody of the minor children. The father filed O.P. No. 270 of 1970 for the custody of the minor children. There were three children out of the marriage, and custody of two minor children was given to the mother. The father preferred an appeal and the wife a memorandum of objections against the judgment in so far as it was against them, the father and the mother claiming custody of the three children. A Division Bench of this Court by its judgment reported in Jacob A. Chakramakkal v. Rosy J. Chakramakkal (1972) 2 M.L.J. 520 held that the father is the proper person to be the guardian an