ORDER:- The appellant applied to the lower Court for appointing him as the guardian of the person and property of 2 minor girls Kyalani Devi and Memcha Devi born on 26-8-1947 and 7-11-1949 respectively. They are the children of his younger brother Amuchaoba Singh, who died 7 or 8 months before he filed the application. The mother of Kyalani Devi had predeceased her father, while the mother of Memcha Devi had remarried. Kyalani Devi was in the custody of one Birahari Singh, her maternal grand-father, while Memcha Devi was in the custody of Yalma Devi, her maternal grand-mother, at the time when the application was filed. The deceased father of the minors left a sum of Rs.3,500/- which is in the Assam Ply-wood Limited and the said money has to be collected. He had also 1/3rd share in an ingkhol which was in the possession of the appellant himself, and the value of which was said to be Rs.500/-. The appellant was willing to give security for Rs.5,000/- to be in charge of the property of the minors. The appellant stated in his application that he was the nearest relative of the minors, that he was living with his family at Khagempalli, that he was in good circumstances and having an income of about Rs.1,500/- per year and hence a proper and good person to be appointed guardian of the minors. 2. Notice of the application was taken in the usual course. One Telem Birahari Singh, the maternal grand-father of minor Kyalani Devi filed a counter statement opposing the application of the appellant. He stated that after the death of Kyalani Devis father, the appellant has not spent a single pie for the benefit of the minors and that ever since the death of Kyalani Devis mother when she was only 11 days old, she has been under the care and custody of Birahari Singh. He also said that the petitioners object in making the application was to get hold of the money lying in the Assam Ply-woods Ltd., and not the benefit of the minors. Nobody came forward to object to the application as far as Memcha Devi was concerned. 3. The lower Court posted the case for enquiry to 21-2-1961. On that date Birahari Singh was absent. The appellant examined himself and another witness in support of his application. There was no cross-examination of the witnesses. Nobody came forward to object to the application as far as Memcha Devi was concerned. 3. The lower Court posted the case for enquiry to 21-2-1961. On that date Birahari Singh was absent. The appellant examined himself and another witness in support of his application. There was no cross-examination of the witnesses. The evidence of the witnesses was to show why it was necessary to appoint a guardian for the person and property of the minors and to say that the appellant was the fit and proper person to be appointed such guardian as the elder brother of the deceased father of the minors. 4. The lower Court dismissed the application. The reasons given by the lower Court are as follows. No cause has been shown for making the application and no reason was given to show that Birahari Singh and Yaima Devi in whose custody the two minors were respectively living were unfit and no charge of waste or mismanagement by them has been proved and the mere desire of the other relatives of the minors that a guardian should be appointed is not sufficient to deprive the custodians of their right to be guardians of the minors, merely because there is an application, and hence it is not necessary that a guardian should be appointed as no allegation has been made against Birahari Singh and Yaima Devi. The lower Court, therefore, felt that the application was filed not for the welfare of the minors but with the object of using the sum of Rs.3,500/- lying to the Assam Ply-woods Ltd., and hence the application was not bona fide. Lastly the lower Court stated that the application was not supported by a sworn affidavit. 5. I am afraid that the lower Court has not dealt with this case as it should have done. The application was filed under S.7 of the Guardians and Wards Act. The form of the application is given in S.10. It is not disputed that the application was filed as per the form given in S.10 and it has been properly verified as required under S.10(3). Section 10 does not require a sworn affidavit to be filed in support of the application. Hence, the absence of a sworn affidavit should not have been made a reason to dismiss the application. It is not disputed that the application was filed as per the form given in S.10 and it has been properly verified as required under S.10(3). Section 10 does not require a sworn affidavit to be filed in support of the application. Hence, the absence of a sworn affidavit should not have been made a reason to dismiss the application. The lower Court has referred to the decision Sarala Sundari Debi v. Hazari Dasi Debi, ILR 42 Cal 953 : (AIR 1916 Cal 324) to hold that an affidavit in support of the petition was necessary. But the said decision does not hold that unless there was an affidavit, the application is not sustainable. In fact, in the face of S.10 of the Guardians and Wards Act, an affidavit cannot be insisted upon. I find that in that particular Calcutta decision, there was a will left by the deceased appointing certain persons as guardians of the minors and as Executors of the will, which fact was known to the person who applied for guardianship and hence they are matters which the Court considered as requiring an affidavit from the applicant for guardianship in that particular case. If an affidavit was required by the Court, the Court can direct the party to file an affidavit. It cannot dismiss an application for guardianship on that ground. 6. When an application under S.7 is filed before a Court, it has to satisfy itself that there is ground for proceeding on the application. The lower Court satisfied itself on this matter and then issued notice. Then, at the time of the enquiry, what the Court has to see is whether for the welfare of the minors an order should be made appointing a guardian of his person or property of both. If it is satisfied that it is necessary to appoint a guardian for the welfare of the minors, it can decide whether the person who has filed the application or any other person, who is willing should be appointed as guardian. 7. The lower Court has not dealt with any of these matters on the evidence placed before it. The two minors are at present in the custody of 2 relatives. At the time of the enquiry, neither of these two relatives were present to oppose the application. The minors have got some property left by their deceased father. 7. The lower Court has not dealt with any of these matters on the evidence placed before it. The two minors are at present in the custody of 2 relatives. At the time of the enquiry, neither of these two relatives were present to oppose the application. The minors have got some property left by their deceased father. This property has certainly to be taken care of and a guardian has at least got to be appointed in respect of the property. This matter was totally lost sight of by the lower Court when passing its order. The persons who have at present the custody of the minors are not attending to the property left by the deceased father. It is clear therefore that the Court has got to appoint a guardian for the property of the minors. Secondly, with regard to the person of the minors, the lower Court has stated that the mere desire of the applicant that a guardian should be appointed was not sufficient for depriving the custodians or their right to be the guardians of the minors. But the lower Court forgot that the present custodians of the minors have not been appointed as their guardians, though its order would indicate that it felt that a guardian for the person of the minors was necessary. 8. Thus, when such an application is before the Court, it is the duty of the Court to find out whether the persons at present having the custody of the minors wanted to be appointed as their guardians of either their property or their person. Even Birahari Singh, who appeared before the Court and objected to the appointment of the petitioner did not come forward and say that he was willing to be the guardian of either the person or the property of Kyalani Devi. 9. Further, the lower Court must proceed on the evidence placed before it and not on mere surmises. There was no evidence before the lower Court to show that the appellant, who was the elder brother of the deceased father of the minors, did not have the welfare of the minors at heart, but wanted only to have the use of the money. The appellant was willing to give propel security for the property. There was no evidence before the lower Court to show that the appellant, who was the elder brother of the deceased father of the minors, did not have the welfare of the minors at heart, but wanted only to have the use of the money. The appellant was willing to give propel security for the property. The Court can also insist that when the money from the Assam Plywood Ltd. is collected, it should be deposited into Court and the Court can itself invest the money for the benefit of the minors. In any case, it is clear that the application should not have been dismissed by the lower Court. 10. The order of the lower Court dismissing the application is, therefore, set aside and the case is remanded. The lower Court will first satisfy itself whether it is necessary to appoint a guardian for the person or the property of the minors or for both and if it is so satisfied then it will proceed to appoint guardians for the person or the property or both. If the appellant in the opinion of the lower Court is not a fit person, the lower Court will have to issue notice to other persons who are willing to be appointed as such guardians and it will appoint proper guardians for the minors. The appeal is, therefore, allowed and the order of the lower Court is set aside and the case is remanded for being disposed of in the light of the observations contained in this order. No costs. Appeal allowed.