(Kakara) Tatamma vs Marina Veerraju

Waller, J.—This is an appeal against an order appointing a guardian under the Guardian and Wards Act. A father applied u/s 10 of the Act

to be appointed guardian of his minor daughter''s person and property and u/s 25 for an order directing the respondent to deliver her into his

custody. The District. Judge appointed him guardian of the property and directed the respondent to restore the child to her father, remarking that

no order as regards the guardianship of her person was necessary.

The conditional order of appointment as guardian of the property is of no effect: In re, Venkatesa Perumal AIR 1927 Mad. 36, and must be set

aside. The District Judge is not correct in saying that no order as regards the guardianship of the person was ""necessary."" No such order could

have been passed. On this point, we agree in the view taken by Ramesam and Jackson, JJ., in (Viyyuru) Lakshama Reddi and Another Vs. Alla

Vira Reddi, and not in that taken by Venkatasubba Rao, J., in (Kuppachi) Raghavaiya Vs. Machavolu Lakshmiah, .. Mr. Rama Rao contends that

no application lies u/s 25 of the Act in a case where the minor has never been in the custody of the guardian. That is, of course, the plain meaning

of the section, but we must follow the rulings of this Court which lay down that, in order to make the Act workable, a fiction must be imported into

the section, whereby it is deemed that the child has been constructively, in the guardian''s custody and has left it.

On the merits, we consider that there should be a further enquiry. The allegation is that the father more or less deserted his wife and

endeavoured to marry again, while she was still alive. That allegation has not been investigated. If it is true, it will be for the Court below to

consider whether it is for the welfare of the child to return to the custody of a father, who had no particular affection for her mother and has now

married again. In effect, if she returns to her father, she will have to be looked after by a stepmother, who may have children of her own and

neglect her. The order is set aside. The District Judge will re-entertain the application and dispose of it in the light of the above remarks. There will

be no order as to costs.