JUDGMENT Niamatullah and Rachhpal Singh, JJ. - This is an appeal by Mst. Chameli from an order u/s 39, Guardian and Wards Act, removing her from the guardianship of the person and property of her step-son, Prem Chand. The order has been passed by the Subordinate Judge, Meerut, exercising the powers of a District Judge under the aforesaid Act. The minor, Prem Chand is the son of one Shahzad Rai, who owned a firm styled "Sant Lal Banwari Lal" dealers in furniture and tents in Meerut Cantonment. Shahzad Rai died in November, 1918, leaving Mst. Chameli his senior widow, Mst. Jainwati his junior widow, his son Kailash, a daughter Kailasu and a mother Mst. Parbati. Prem Chand was born a few months after the death of Shahzad Rai. His assets are said to be of considerable value. Mst. Chameli was appointed guardian of the person and property of Kailash who, before the birth of Prem Chand, was the sole owner of the property left by Shahzad Rai. Subsequently she was appointed the guardian of the person and property of Prem Chand also. The entire family appears to have lived in perfect harmony and the mother and the junior widow of Shahzad Rai had every confidence in Mst. Chameli acting as the guardian of the person and property of the sons of Shahzad Rai. Kailash died in 1930 and thence-forward Mst. Chameli continued to be the guardian only of Prem Chand, on whom the interest of Kailash who died unmarried devolved by survivorship. Misunderstandings seem to have arisen in 1930 and thereafter as the result of certain dealings with the minor's estate by one Banarsi Das, who is a relative of Mst. Parbati, the mother of Shahzad Rai. Mst. Kailasu was to be married in 1929 and the District Judge sanctioned a sum of Rs. 10,000 for expenses in connection with the marriage ceremonies. Benarsi Das who was in charge of the accounts and also had authority to disburse mor ey showed in the accounts that over Rs. 20,000 had been spent. Mst. Chameli appears to have taken Ex. ception to a larger sjim than Rs. 10,000 having been spent on the marriage of Mst. Kailasu. In fact her allegation at one stage was that Banirsi Das misappropriated the larger part of Rs. 20,000, which he entered in the accounts as the sums spent on the marriage of Mst. Kailaso. Mst. Chameli appears to have taken Ex. ception to a larger sjim than Rs. 10,000 having been spent on the marriage of Mst. Kailasu. In fact her allegation at one stage was that Banirsi Das misappropriated the larger part of Rs. 20,000, which he entered in the accounts as the sums spent on the marriage of Mst. Kailaso. Banarsi Das had the support of Mst. Jainvvati in that dispute either because the sum of Rs. 20,000 had been really spent on the marriage of Mst. Kailaso and Mst. Chameli was unjustly charging Banarsi Das with embezzlement, or Banarsi Das had won over Mst. Jainwati to his side. It is not material for the purpose of these proceedings to determine this question. The fact remains trat there were differences between Mst. Chameli on the one sids and Mst. Jainwati and probably also Mst. Parbati on the other which resulted in an application dated 27th August, 1930, by Mst. Jainwati for the removal of Mst. Chameli from the guardianship of the person and property of Prem Chand. The application was not however persisted in and was withdrawn. Apparently the parties made up their differences and Mst. Chameli was left in the management of the minor's property. Not long afterwards Mst. Jainwati made a second application on 7th November, 1931, again praying for the removal of Mst. Chameli. Shortly after this application Mst. Chameli filed a criminal complaint against Banarsi Das charging him with embezzlement of part of the funds shown in the account as spent on the marriage of Mst. Kailaso. Paities again amicably settled their differences. Mst. Chameli withdrew the criminal complaint against Banarsi Das who in:urn disclaimed any interest in the sum of Rs. 2,860 whici he had shown in the account to be due to himself from the estate of the minor. Mst. Jainwati withdrew her applicatior for removal of Mst. Chameli. Her application is dated 14th March, 1932, and declares that The shop an be managed best only under the guardianship of Mst. Chameli. of any one else is appointed guardian there is the same apprehension of loss of minor as was on account of the appointment of the official receivesr. Therefore for the benefit of the miner it is necessary that Mst. Chameli should remain guardian as hithertofore. Now the Petitioner has no complaint against Mst. Chameli and does not want herself to be appointed guardian. 2. Therefore for the benefit of the miner it is necessary that Mst. Chameli should remain guardian as hithertofore. Now the Petitioner has no complaint against Mst. Chameli and does not want herself to be appointed guardian. 2. It should be mentioned that in all the applications made by Mst. Jainwati or the removal of Mst. Chameli she also prayed that she herself should be appointed as guardian of the person and property of her minor son. After her second application dated the 7th November, 1931, the court appointed a receiver of the estate of the minor pending the disposal of that application, on withdrawal of which the receivership terminated and Mst. Chameli resumed the management of the minor's estate. The last application which has given rise to these proceedings was made by Mst. Jainwati on the 10th December, 1932, praying for the removal of Mst. Chameli from the guardianship of the person and property of Prem Chand. The application is based on a number of allegations which has found favor with the learned Subordinate Judge and will be mentioned by us presently. 3. The first ground on which the order of removal is based is that Mst. Chameli has ceased to live in the family house situate in Meerut Cantonment and has taken her abode in a rented house belonging to one Umrau Singh, that her relations with one Mst. Barfi are very intimate and that Mst. Chameli has employed Mst. Barfi's brother Bhondu Mai to look after the affairs of the minor. The substance of this allegation is that Mst. Chameli cannot discharge her duties as guardian of the person and property of Prem Chand from her new lodging. The learned Subordinate Judge has not referred to any difficulty which Mst. Chameli would experience in looking after the interests of the minor from Meerut City. Prem Chand is about 15 years of age and is living in the family house with his mother and grandmother. The property belonging to him has all along been managed through servants. We have not been told why Mst. Chameli who finds it more convenient to live in Meerut City instead of Meerut Cantonment cannot now look after the person and property of the minor as she did before. There is nothing to show that she neglected to arrange for the minor's education and support according to his position in life. We have not been told why Mst. Chameli who finds it more convenient to live in Meerut City instead of Meerut Cantonment cannot now look after the person and property of the minor as she did before. There is nothing to show that she neglected to arrange for the minor's education and support according to his position in life. The learned Judge has observed that Mst. Chameli has admittedly left the house of her husband in Meerut Cantonment and gone to live in Meerut City in a rented house of one Umrao Singh where she is living with one Mst. Barfi, alleged to be a women of doubtful character. And she has, according to the deposition of her own witness Bishambhar Sahai deputed Mst. Baifi's brother Bhondumal to supervise business of the firm of the minor known as Firm Sant Lal Banwari Lal 4. There is not the slightest evidence on the record to support the allegation that Mst. Barfi is a woman of a doubtful character. Apparently the learned Judge is not prepared to find as a fact that this is so. We do not think that the learned Judge was justified in giving prominence to such an allegation and allowing his mind to be influenced by it. It has not been suggested by Mst. Jainwati herself that Mst. Chameli who is a lady of 55 has deliberately chosen the company of Mst. Barfi with any sinister object. Mst. Barfi's character is absolutely irrelevant and any insinuation made as against her was obviously intended to prejudice the mind of the court. We are concerned with the discharge of her duties by the guardian by Mst. Chameli. There is again no suggestion in the judgment of the learned Subordinate Judge, nor is there any evidence that Bhondu Mal, brother of Mst. Barfi who has been employed for supervising the business of the shop is not a competent person or that he has mismanaged the affairs of the minor. The learned Subordinate Judge has also observed that. While Mst. Chameli is living in the city with a stranger, the minor is living in the house of his deceased father in the Cantonment and neglected by his step-mother Mst. Chameli. 5. The reason herein assigned is too vague to form the object of an indictment against Mst. Chameli. The learned Subordinate Judge has not referred to any acts of Mst. Chameli. Chameli. 5. The reason herein assigned is too vague to form the object of an indictment against Mst. Chameli. The learned Subordinate Judge has not referred to any acts of Mst. Chameli. General allegation of neglect is, in our opinion, wholly insufficient to impute incompetence or mismanagement to the' guardian. We asked the learned Advocate for Jainwati to give any concrete instances in which Mst. Chameli failed to do what she ought to have done as a guardian. The only suggestion that was made is that the guardian has left the family house. The learned Advocate informed us that the minor desired to participate in the actual management of the shop, but was interfered with by Bhondu Mal and others employed by the lady. We do not think that fact, if true, can be considered to constitute neglect on the part of Mst. Chameli. In the first place there is absolutely no evidence to suggest that list. Chameli or her servants prevented the minor from doing anything which he could have legitimately done. In the second place, it is open to a guardian not to allow the ward to inter ere with the management of his estate by the guardian or her servants. In any case the fact remains that beyond vague suggestion of neglect arising from Mst. Chameli living in the city, there is nothing on the record to establish that the lady has omitted to do what her duties as a guardian required her 10 do. 6. Another ground on which the learned Judge has based his order may be mentioned in his own words: It is admitted that one Benarsi Das a relation of Mst. Jainwati cheated the firm of the minor by preparing false account of his sister, Mst. Kailaso's marriage. The sum of which Benarsi Das is said to have cheated the firm is well nighten thousand rupees. The argument that Benarsi Das was a relation of Mst. Parbati or Mst. Jainwati, does not absolve Mst. Chameli of her legal responsibility. It shows that she is incapable and unfit to discharge her trust and manage the property. 7. This view is based on two unfounded assumptions. As already stated there is no sufficient evidence on the record to warrant a finding that Banarsi Das had embezzled any part of Rs. Jainwati, does not absolve Mst. Chameli of her legal responsibility. It shows that she is incapable and unfit to discharge her trust and manage the property. 7. This view is based on two unfounded assumptions. As already stated there is no sufficient evidence on the record to warrant a finding that Banarsi Das had embezzled any part of Rs. 20,000 which according to the accounts prepared by him had been spent on the marriage of Mst. Kailaso. Mst. Chameli has filed a document purporting to have been signed and thumb marked by Mst. Jainwati in which she has given a clear acquittance to Banarsi Das in respect of the sum of Rs. 20,880-5-6 which is entered in the account as spent on the marriage of Mst. Kailaso. This document has not been denied on behalf of Mst. Jainwati. Her Learned Counsel has frankly stated before us that he is unable to support all that the learned judge has said in the passage quoted above, and that he is not prepared to assert that Benarsi Das was guilty of embezzlement of any part of the sum entered by him in the account as spent on the marriage of Mst. Kailaso. It is, therefore, clear that the learned Judge was not justified in assuming that Benarsi Das had committed embezzlement in respect of the minor's funds. He was less justified in assuming that Mst. Chameli was guilty of connivance or neglect of duty or was unfit to act as guardian. Mst. Chameli actually lodged a criminal complaint against Benarsi Das. In view however of Mst. Jainwati's assurance that the entire sum of Rs. 20,000 odd had been spent on the marriage of her daughter, she did not prosecute Benarsi Das, but took care to obtain a declaration from him that the sum of Rs. 2,860 which according to the account prepared by him was due to him from the minor's estate was in fact not due. We do not think that Mst. Chameli who managed the estate of the minor for over 12 years apparently to the satisfaction of all members of the family can be considered to be "incapable and unfit to discharge her trust." 8. The third ground on which the judgment of the learned Subordinate Judge proceeds is that Mst. Chameli has employed one Bishambhar Sahai as manager. Chameli who managed the estate of the minor for over 12 years apparently to the satisfaction of all members of the family can be considered to be "incapable and unfit to discharge her trust." 8. The third ground on which the judgment of the learned Subordinate Judge proceeds is that Mst. Chameli has employed one Bishambhar Sahai as manager. This Bishambar Sahai is said to be an ex-convict and an insolvent The lady is said to have advanced over Rs. 2,000 to Bishambhar Sahai out of the funds belonging to the minor. The judge concludes: It will be very difficult to realize the money from him. A guardian who keeps such men in service surely abuses the trust and is unfit to be kept in charge of it. 9. The learned judge has not given due weight to some admitted facts about Bishambhar Sahai. It is common ground that he was in the service of Shahzad Rai from 1907 to 1918 and was retained by Mst. Chameli upto 1924. He left her in that year. We know nothing about the movements of Bishambhar Sahai between 1924 and 1931, when he was again employed by Mst. Chameli, The learned Subordinate Judge mentions the fact that Bishambhar Sahaihad misappropriated money belonged to the post office and was convicted of an offence of mist ppropriation. He does not say when he was convicted. Learned Counsel on both sides suggest in the absence of evidence on the record that this must have happened before 1907. Our attention has been drawn to a very important fact in this connection. After the learned Judge removed Mst. Chameli, he appointed Mst. Jainwati as guardian of the person and property of her minor son. He associated with her Lala Chiranji Lal as manager of the estate. The latter submitted a scheme in which he proposed to appoint among others, Bishambhar Sahai on a salary of Rs. 40 per month. The learned Subordinate Judge himself sanctioned the scheme including the appointment of Bishambhar Sahai. From what has been stated above, it is quite clear that Bishambhar Sahai was considered by the father of the minor as a fit and proper person to be employed in the management of the estate in spite of his conviction some time before 1907. Mst. The learned Subordinate Judge himself sanctioned the scheme including the appointment of Bishambhar Sahai. From what has been stated above, it is quite clear that Bishambhar Sahai was considered by the father of the minor as a fit and proper person to be employed in the management of the estate in spite of his conviction some time before 1907. Mst. C lameli retained the same staff as existed in the life-time of her husband for some time at any rate. Bishambhar Sahai was well-acquainted with the affairs of the minor's estate having been in the employment of the family or a considerable length of time and Mst. Chameli cannot be considered to have been guilty of "abuse of trust" as the learned Subordinate Judge thinks. The fact that Lala, Chiranji Lal also considered necessary to retain the services of Bishambhar Sahai and the learned Subordinate Judge himself sanctioned his appointment is a complete answer to any suggestion of unfitness of Mst. Chameli in so far as she employed Bishambhar Sahai. 10. Mst. Chameli obtained five promissory notes from Bishambhar Sahai, the consideration of which aggregated to a sum exceeding Rs. 2,000. There is absolutely no evidence on the record to suggest that Mst. Chemali lent any money to Bishambhar Sahai It was asserted before us on behalf of Mst. Chameli, that Bishambhar Sahai had borrowed money and executed promissory notes in the life-time of Shahzad Rai and Mst. Chameli had those promissory notes renewed. Bishambhar Sahai was not a man of means and could not pay to the estate of the minor the sums due to him under the promissory notes. All that the lady could do in these circumstances was to obtain fresh promissory notes to keep the debt alive and prevent its being barred by limitation. There is no evidence on the record that the considerations of the promissory notes to which reference has been made by the learned Subordinate Judge were cash advances made by Mst. Chameli to Bishambhar Sahai. We do not think that the conclusion arrived at by the learned Subordinate Judge was warranted in the circumstances appearing in this case. 11. Lastly the learned judge has laid stress on the wishes of the minor, Prem Chand who was questioned by him as to whether Mst. Chameli should continue to be the guardian of his person and property. He said: Mst. 11. Lastly the learned judge has laid stress on the wishes of the minor, Prem Chand who was questioned by him as to whether Mst. Chameli should continue to be the guardian of his person and property. He said: Mst. Chameli abuses him and does not at all look after him.'" We would point out that Section 17(3) of the Guardian and Wards Act under which, apparently, the learned Judge acted in ascertaining the wishes of the minor, provides for cases in which the judge has to appoint a guardian. Where there are rival candidates for appointment as guardian, the judge may ascertain the wishes of the minor if he is old enough "to form an intelligent preference". Where however the question is whether a guardian who has acted as such for a long time should be removed, the issue is somewhat different and the considerations mentioned in Section 39 of the Guardian and Wards Act should govern the decision of the Court. Apart from this the minor did not say anything definite against Mst. Chameli. The learned Judge did not ascertain from him as to what he meant by stating that she did not "look after him". Mst. Chameli might have abused him for something which a boy of his age ought not to have done. In this respect again his statement was extremely vague. 12. We have dealt with each of the four grounds on which the order of the learned Subordinate Judge proceeds and are not satisfied that any case was made out for the removal of Mst. Chameli. Section 39, Guardian and Wards Act justified removal of a guardian appointed by the Court (a) for abuse of his trust; (b) for continued failure to perform the duty of his trust; (c) for incapacity to perform the duty of his trust; (d) for ill-treatment or neglect to take proper care of his ward;" etc. 13. The learned Advocate for the Respondent said that he based his case on Clauses (c) and (d), that is "incapacity of Mst. Chameli to perform the duties of her trust" and "ill-treatment for neglect to take proper care of the minor. But a regrettable feature of this case is that the allegations made in the application for removal of Mst. Chameli were not supported by evidence so far as they were not admitted by Mst. Chameli to perform the duties of her trust" and "ill-treatment for neglect to take proper care of the minor. But a regrettable feature of this case is that the allegations made in the application for removal of Mst. Chameli were not supported by evidence so far as they were not admitted by Mst. Chameli who did not admit anything which was damaging to her case. While it is true that in proceedings under the Guardian and Wards Act, procedure involving an examination of witnesses at length is not usual, it cannot be said that the court may act on facts merely alleged and not proved by anything which may be considered as evidence in law. It is also true that a Judge exercising jurisdiction under the Guardian and Wards Act has a wide discretion in appointing and removing guardians. It cannot, however, be denied that the removal of a guardian on one of the grounds mentioned in Section 39 is a serious matter and the court should not exercise its power except on good grounds established by satisfactory evidence. In the case before us the order of the learned Judge is based on certain superficial aspects of the case which cannot stand examination. In this view we are constrained to set aside the order appealed from. We however, invite the attention of the learned Judge of the Court below to the provisions of Section 43 Guardian and Wards Act, which empower him to pass any order which the circumstances of the ease may require for regulating the conduct or proceeding of the guardian. It is open to him to give necessary directions as regards the appointment of manager or agent for the reengagement of the estate of the ward. 14. The result is that this appeal is allowed with costs. The order appealed from is set aside. Mst. Chameli shall continue to be the guardian of the person and property of the minor, Prem Chand till she is removed in due course of law or the minor a taints majority.