JUDGMENT : BANERJI, J. 1. This is an appeal from an order refusing to appoint the appellant guardian of the person of her minor daughter Musammat Kuresha, aged 12 years. The case has not been tried by the Court below in accordance with law. The application appears to have been opposed by Changa and Musammat Nanhi. But the record does not show on what grounds these persons opposed the application. The learned Judge did not record the evidence of witnesses in the manner required by law. He simply made on the back of the application notes of the statements of certain persons examined by him. Under section 647 of the Code of Civil Procedure he was bound in a proceeding of this kind to follow the procedure prescribed in the Code in respect of suits. The only reason assigned in the judgment of the learned Judge for refusing the application is that the applicant has married a second time after the death of her husband, the father of the minor, and that the opponents have adopted the girl. The learned Judge overlooks the fact that among Muhammadans there can be no legal adoption. The mere, circumstance of the mother having married again does not disqualify her from being appointed guardian of the person of her own daughter. The learned Judge ought to have taken evidence and satisfied himself whether the applicant was a fit and proper person to be appointed guardian of the minor, and for that purpose should have taken into consideration the circumstances mentioned in section 17 of the Guardians and Wards Act. As the case has not been properly tried, I set aside the order of the Court below, and send back the case to that Court with directions to try it in accordance with law. Costs of this appeal will follow the event. 2. Case remanded.