JUDGMENT

Ganga Nath, J. - This is an appeal by an objector, Mt. Lalita, and arises out of proceedings under the Guardians and Wards Act. The application was made u/s 25 of the Act for the custody of the children. Paramatma Prasad opposite party (respondent) applied on the ground that he was the father of the children. The appellant denied that he was the father of the children. She also contended that she, being the mother of the children, was entitled to their custody. The learned District Judge has found that Paramatma Prasad is the father of the children and is entitled to their custody. The appellant has come here in appeal against the order of the District Judge.

2. The first contention that was raised on behalf of the appellant was that the learned District Judge had no jurisdiction, inasmuch as the minors were living in village Shadiabad in Ghazipur District at the time when the application was made. Section 9(1) of the Act lays down:

If the application is with respect to the guardianship of the person of the minor, it shall be-made to the District Judge having jurisdiction in the place where the minor ordinarily resides.

3. The fact that a minor is found actually residing at a place at the time the application is made does not determine the jurisdiction. It must be proved where the minor ordinarily resides, as laid down in Section 9(1). In the present case it has been found that the appellant took away the minors to Shadiabad, where her parents resided, in March 1938, i.e. only three or four months, before the application was made. Before that the minors and their mother had been living for several years in Benares, where Paramatma Prasad lived, within the jurisdiction of the learned District Judge. The learned Judge has observed:

It is in evidence that she has been in Benares for the last six or seven years, though she in this period visited Shadiabad off and on. But so far as, the minors are concerned, I am of opinion that their ordinary place of residence must be held to be Benares. Both of them were born in Benares. For a major part of their lives both of them have lived in Benares. The fact that their mother belongs to Shadiabad would not make their residence also Shadiabad. Their ordinary residence must be held to be Benares, though at present they might be living with their mother at Shadiabad since March last.

4. These facts have not been controverted by the appellant. It has also been found that the appellant was living with the applicant opposite party during all this period at Benares. This fact further shows that Benares was the place where the minors should be deemed to have their ordinary residence. The mere fact that the minors were taken by their mother to Shadiabad when she went to visit it would not make Shadiabad as the place of ordinary residence of the minors. The learned District Judge of Benares had therefore jurisdiction to try the case. The learned Judge has found that the plaintiff is the father of the minors. The appellant is a prostitute, and she was living with him as his mistress. The finding of the learned Judge that the applicant is the illegitimate father of the minors has not been challenged. The next contention of the appellant was that the applicant being the father of the minors could not get himself declared as their guardian in view of the provisions of Section 19, Guardians and Wards Act. Reliance was placed on Annie Besant v. Narayaniah AIR (1914) PC 41. Section 19 of the Act lays down:

Nothing in this chapter shall authorize 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 and declare a guardian of the person;

(b) subject to the provisions of this Act with respect to European British subjects, 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.

5. In the case referred to above their Lord-ships of the Privy Council obs