Judgment 1. This Miscellaneous Appeal is from an order of the Fifth Additional District Judge, Patna, dated 11th Dec., 1976 appointing the respondent as a guardian of the three minor children of Noor Mohammad, namely, Zubeda Khatoon, Firoz Khatoon and Md. Zakir Hussain. The minors are by religion Muslims of the Hanafi sect and they are governed by Hanfi School of Muhammedan Law. They were all aged below eight years. Their age varied from 2 to 8 years. The respondent was appointed their guardian under S. 7 of the Guardians and Wards Act, 1890. She is the grandmother of the minors. The appellant Bibi Saira Khatoon is their mother. The husband of the appellant named Noor Mohammad alias Noor Mian was murdered in the year 1971 leaving behind the aforesaid three minor children and his widow, namely, the appellant. Molvi Miajan was the husband of the respondent and father of Noor Mohammad. He died on 1st Dec., 1973 leaving behind his widow the respondent, his daughter Zaibunnisa and his daughter-in-law, the objector-appellant. The oral evidence adduced by the parties before the Additional District Judge was of uniform type. Evidence of the applicant was that the children were kept nicely by her and in the event of their falling ill, they were given proper medical treatment. The appellant adduced evidence to show that she was ill-treated after the death of her father-in-law on 1st Dec., 1973, as a result of which she had to call her father and had to leave the house of her husband. She said that two of her children were forcibly snatched by Md. Hadis and Zaibunnisa, namely, the son-in-law and daughter of Molvi Miajan. 2. Before proceeding with the facts of the case, it will be better to state the principles of law which are to be followed in the matter of appointment of the guardian of minors. Under the Muslim personal law a mother is entitled to the custody (Hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. Under the Muslim personal law a mother is entitled to the custody (Hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. Puberty is attained at the age of 14 or 15 years; In Enamul Haque V/s. Bibi Taimunissa, AIR 1967 Pat 344 , Anwar Ahmad, J. followed the statement of law in S. 352 in Mullas Mahomedan Law which itself is based on the authority of the Privy Council decision in Imambandi V/s. Haji Mutsaddi, AIR 1918 PC 11 that the mother is entitled to the hizanat or custody of her female child until she has attained puberty even though she is not the natural guardian. Neither the mother nor the grandmother can be the legal guardian of the property of the minor. In default of the legal guardian, the duty of appointing a guardian for the protection and preservation of the minors property falls on the Judge as representing the State; Vide S. 360 of Mullas Mahomedan Law. Another principle of law which is too well established is that in a proceeding for appointment of guardian it is not guardianship of the minor which is of importance but the welfare of the minor has to be taken into consideration. If there is a conflict between the personal law to which the minor is subject and the consideration of the minors welfare, the latter must prevail. The welfare of the minor is the first and paramount consideration and is of supreme importance; See the cases of Alimunnisan V/s. Mukhtar Ahmad, AIR 1975 All 67 and Hassan Bhat V/s. Ghulam Mohd., AIR 1961 J&K 5 . The correct legal position is to be found in S. 17 of the Act. From this section it is clear that principles of personal law can only be applied "subject to the provisions of this section." Sec.17 runs as under :- "(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. (2) In considering what will be for welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. (3) If the minor is old enough to form an intelligent preference, the Court may consider that preference. ** ** ** (5) The Court shall not appoint or declare any person to be a guardian against his will." The same principle is to be found in Sec.351 of Mullas Mahomedan Law which is as below :- "Matters to be considered by Court in appointing guardian : (1) In appointing or declaring the guardian of minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. (2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. (3) If the minor is old enough to form an intelligent preference, the Court may consider that preference." 3. It is contended on behalf of the mother appellant that though the court below has referred to the doctrine of welfare it has not acted upon the same. In my opinion, counsel is right on this point. The material facts and circumstances of the present case clearly show that the grandmother could not have been appointed as guardian. She is prosecuting a title suit (Title Suit No. 111 of 1973) in the court of Munsif, Patna against these very minors and also against their mother, namely, the appellant. It appears that Noor Mian the father of the minors had acquired some Kasht lands measuring about 6 acres of land under a registered sale deed dated 19th May, 1952. He was murdered in 1971. It appears that Noor Mian the father of the minors had acquired some Kasht lands measuring about 6 acres of land under a registered sale deed dated 19th May, 1952. He was murdered in 1971. Title Suit No. 111 of 1973 was filed on 18th June, 1973, by Molvi Mianian in the Court of first Munsif, Patna alleging that it was he who had purchased the aforesaid property with his own money in Benami name of his son Noor Mian. Molvi Miajan died on 1st Dec, 1973. After his death, respondent, namely, the applicant grandmother got her substituted in his place on the 25th Feb., 1974 and she is prosecuting the title suit since then. I have already said that the said title suit to against these very minors whose guardian she has been appointed. The suit land in that suit is said to be 5 acres 75 decimals. Learned counsel for both the parties say that if the property is held to belong to Noor Mian, then the applicant grandmother will have only 1/6th share in the property and the rest will belong to the minors land their mother. It is quite clear that there is direct conflict of interest between the applicant grandmother on one side and the minors on the other. Her appointment as a guardian, therefore, cannot be for the welfare of the minors. If she is appointed as a guardian, she can do anything with the suit properties aforesaid and all the properties will go to, her hands. It further appears that the property of the grandmother is being looked alter by her son-in-law Md. Hadis (P. W. 8) against whom the mother of the minors had filed a criminal case. Learned counsel for the mother appellant has further submitted that Molvi Miajan at the instance of his wife, namely, the applicant grandmother had executed a deed of gift dated 26th Nov., 1973 in respect of his landed properties including the land of Noor Mian in favour of his daughter Bibi Zaibunnissa against whom also the aforesaid criminal case was filed by the mother appellant. The submission has force. Bibi Shahidan Khatoon herself admitted in her evidence that one day before his death, her husband Miajan gave the land to his daughter Zaibunnissa who in turn sold it and this litigation was being fought with the price of those lands. The submission has force. Bibi Shahidan Khatoon herself admitted in her evidence that one day before his death, her husband Miajan gave the land to his daughter Zaibunnissa who in turn sold it and this litigation was being fought with the price of those lands. It further appears that even the old ancestral house was sold by Molvi Mainjan in favour of his daughter Zaibunnissa as admitted by Md. Hadis in his cross-examination. All these facts were sufficient to disentitle the grandmother to be guardian of the minors. The learned District Judge, Gaya, however, attempted to explain away the effect of the title suit on two grounds. He has said that the applicant grandmother had admitted -/6/- annas share of the minors in the property of the Schedule of the petition and that the title suit was filed because the father of the objector wanted to sell the land which was the subject-matter of the title suit. While dealing with the evidence of the applicant grandmother Bibi Shahida Khatoon (P. W. 5). the learned District Judge said as fellows : "...... ... But, in further cross-examination, this witness has stated that his father instituted this suit, because the father of the objector wanted to sell that land and wanted to remarry the objector with some body else. This appears to be quite convincing. After the death of Noor Mohammad, his father Miajan must have apprehended that the father of the objector might dispose of that property and remarry the objector and with this end in view, Miajan instituted the said title suit. If actually Miajan or the applicant had any intention to deprive the minors of their rights in the property, the applicant would not have accepted that the minors have got six annas share in the property of Schedule of the petition ... ... ... ..." In my opinion, the observation aforesaid is based purely on surmises and conjectures. The property mentioned in Schedule A to the petition for guardianship filed in the court on 4th March, 1974 is only 1.62 ? acres of land. This is not the property which Noor Mian had purchased as his own property and for which the title suit was brought by Molvi Miajan. That land measured about 6 acres in which the minors shall have about 15 annas share or even something more than that. 4 Mr. acres of land. This is not the property which Noor Mian had purchased as his own property and for which the title suit was brought by Molvi Miajan. That land measured about 6 acres in which the minors shall have about 15 annas share or even something more than that. 4 Mr. Asghar Hussain submitted that the grandmother was prepared to give -/6/- annas share to the minors not only in 1.62 13 acres of land of Schedule A property aforesaid but also in the ancestral house and in other lands. Molvi Mianjan had already gifted ancestral house to his daughter. Therefore, the submission raised on behalf of the applicant is meaningless. When the interest of the applicant grandmother is adverse to the minors, she cannot be allowed to be their guardian. It is to be noticed that the mother has not remarried as yet and there is absolutely no reliable material on record to show that she is otherwise disqualified to have the custody of her minor son. In the circumstances the grandmother was not entitled to be appointed guardian of the minors. 5. Let us now look to the background of the application for guardianship filed by the grandmother on 4th March, 1974. It appears that the mother of the minors was being ill-treated by her mother-in-law Bibi Shahidan. Her husband was murdered in 1971 and her father-in-law Malvi Miajan died on 1st Dec., 1973. Her case is that ill-treatment meted out to her by Bibi Shahidan became intolerable and unbearable and then at her request, her father came to take her and her children to his own village home but Zaibunnifissa and Md. Hadis (daughter and son-in-law of Bibi Shahidan) on 28th Dec., 1973 forcibly removed her property and did not allow her to take away the minor children. However, she succeeded in taking away one of her children, namely, Firoz Khatoon with her and thereafter she made a complaint to the S. D. O. Sadar, Patna in respect of the offences under Ss. 379, 323 and 342 of the I. P. C. Undoubtedly, her father came to take her away along with her minor children. This fact is not disputed. It is also not disputed that she filed a criminal case on the same day, i. e. on 28th Dec., 1973 against Md. Hadis (P. W. 8) and Zaibunnissa in connection with that question. This fact is not disputed. It is also not disputed that she filed a criminal case on the same day, i. e. on 28th Dec., 1973 against Md. Hadis (P. W. 8) and Zaibunnissa in connection with that question. The learned Additional District Judge does not appear to have appreciated this situation. The application for guardianship was filed only after two months of the incident. In my opinion, the contention of the appellant that the application for guardianship was filed during the pendency of the aforesaid criminal case with some ulterior motive to save the offenders and to grab the properties of the minors, cannot be ruled out. In the circumstances the filing of the application for guardianship cannot but be held mala fide. It is obvious that there was absolutely no necessity at that time to file guardianship application by the grandmother. Counsel for the respondent argued that there was necessity, for filing guardianship application because the mother would have taken away the children to the house of her father. This contention has no merit. The mother is entitled to the custody of her minor children under the Mohomedan Law. The point, thus, has no force. The Court below did not consider as to whether or not there was any necessity for appointing the guardian of the minors. Its order, therefore, cannot be supported in law. 6. Learned counsel for the respondent contended that Abdul Ghafoor father of the appellant had about 25 persons in his family and, therefore, the minor children could not be properly looked after. This contention has also been advanced in the court below and it appears that the court below was impressed by this argument. I do not see any sense in that argument. Even if the family consisted of several persons, the children could still be better looked after. The mother of the minors would be there and she will naturally give her love and affection to them. 7. Another contention raised on behalf of the respondent is that father of the appellant had his lands at village Khepura in which the appellant had no interest and hence the welfare of the minors was not likely to be better served there. Suffice it to say that I am not impressed by this argument. The appellant shall have share in the property of her husband. Suffice it to say that I am not impressed by this argument. The appellant shall have share in the property of her husband. Her children, namely, the three children also shall have interest in the family property. I am not, therefore, inclined to hold that the interest of the minors will suffer. On a perusal of the record, it seems to me that even the family of the father of the minors has little property, this contention, therefore, has no substance and it must be repelled. 8. Learned counsel for the appellant raised a point that the court below has no jurisdiction to decide the guardianship matter. The point was not raised in the court below. It requires some investigation of facts on a consideration of which it can be said as to whether or not the court below had jurisdiction in the matter. In the view which I have taken, it is not necessary to embark upon an enquiry into this question. On consideration of the submissions raised on behalf of the parties and giving due weight to them, I hold that in appointing the respondent as guardian of the minor children of Noor Mian, the court below was not guided by what was in the circumstances of this case, conducive to the welfare of the minors and his order, therefore, cannot be upheld. 9. In the result the appeal is allowed, the order of the Fifth Additional District Judge dated 11th Dec., 1976 passed in Guardian Case No. 41/5 of 1974/76 is set aside and the application of the respondent Most. Bibi Shahidan Khatoon under S. 7 of the Act for her appointment as guardian of the minors is hereby dismissed. In the circumstances of the case I would leave the parties to bear their own costs.