( 1 ) FOR the determination of the ticklish question of law that has surfaced in this case, no case parallel on facts being found in any reported decision, hearing of this appeal has unfortunately staggered and disposal delayed.

( 2 ) CONTENDERS for guardianship in this case are threesome, albeit in two proceedings, and the wards also are threesome. The mother alone made an application under the Guardians and Wards Act, 1890, for short GWA, for declaration that she was the guardian of the person and property of her sons, Deepak, Dhananjay and Abhay, while another application was made a few days later for the same purpose jointly by the paternal grandmother of the children along with her daughter. Hearing of the two applications was consolidated. Because the other application was allowed and her application was dismissed, the mother has preferred the instant appeal impugning the decision rendered against her in the common judgement disposing of the two applications.

( 3 ) NARAYANRAO Kshirsagar, it is the common case of the parties, died on 25-10-1979 and it is also not disputed that the appellant is his legally married wife and that the three children were burn to them. What is, however, seriously disputed is the fact that whether Narayanrao executed, during his lifetime, the Will dated 23-10-1979 on which the appellant has relied or the Will dated 21-10-1979 on which his mother and sister relied. The fact, not in dispute, is also that Narayanrao was afflicted by tuberculosis and he died of that decease after protracted treatment and further that since few years before his death, the husband and wife were not living together. It is also not in dispute that eldest of the three children, Deepak, is, at present, living with his mother, the appellant, in Narayanarao's house, while his two brothers are still living elsewhere with the respondents, their grandmother and aunt. The allegation that Deepak was abducted by the appellant, and the house was occupied forcibly in my opinion, has little relevance to the controversy.

( 4 ) BOTH the wills above-referred, dated 21-10-1979 and 23-10-1979, were proved in the case as Exh. D/6 and P/3 respectively. Learned Additional Judge who heard and disposed of the two applications after consideration of other evidence adduced in the case, took the view that no reliance could he placed on Ex. P/3. On the other hand, according to him Ex. D/6 could be relied on. That apart, considering the fact that the appellant having deserted the company of her husband and the three children for last three years preceding her husband's death, it was difficult to take the view that she had any natural love and affection for the children and it would be expedient for the welfare of the children to declare her as their guardian. He also two the view that the wishes of the deceased expressed in Ex. D/6, in the facts and circumstances of the case, were to be respected and given due importance and further that there was nothing in evidence to suggest that the respondents with whom the three children were living, could not be considered fit persons to be declared their guardians. Indeed, for the welfare of the children - their education and well-being the respondents, according to him, were better situate and equipped for being declared as their guardian. The admitted fact indeed is that second respondent, sister of Narayanrao was spinster and she was employed as a teacher in a local school. The wishes of the children themselves were also taken into consideration by the Court below who expressed the desire to live with respondents and not the appellant.

( 5 ) FOR the view I have taken in this matter, it is not necessary for me to deal with other facts of the case or to engage myself in reappreciation of evidence to decide as to whether the decision on merit is liable to be sustained. Only one thing I would like to stress is that in the Court below as also in this Court, appellant's counsel Shri N. K. Mod