JUDGMENT : Lalit Mohan Sharma, J.- This case relates, to the question of guardianship of a Muslim minor girl. Her mother Bibi Shakila made an application under section 7 read with section 10 of the Guardians and wards Act,- 1890 which has been allowed by the court below. The paternal relations of the minor have filed the present appeal under section 47(a) of the Act. 2. The father of the girt Syed Ali Imam is dead. The minor Rukaiya was six years old when the application was filed in 1983. The appellants have opposed the prayer on the ground that Rukaiya has been under the guardianship of her father's father Maulvi Sayeed Akhtar, the appellant no. 6 who should, continue as such. 3. Ali Imam was the first son of Sayeed Akhtar from his first wife. Soon after his birth in 1952, the mother died. Sayeed Akhtar thereafter married Fatma Zohra, appellant no. 4. several children including the appellants 1 and 3 were born of this marriage. According to the case of the respondent Ali Imam was looked after the brought up by his grand parents who died in 1970's: Sayeed Akhtar is a religious teacher and went to Africa on that mission and has been staying in different foreign countries since 1958. Earlier his second wife and her children were staying with him but for sometime now they are in India. 4. Ali Imam was married with respondent Bibi Shakila in 1976 and the couple got three children including Rukaiya. In 1983, Ali Imam died, according to the appellants' case a natural death. His wife, however, made serious accusations against his family members and lodged a first information report alleging that he was beaten to death by some of the appellants. It has been stated by the appellants' counsel that the police disbelieved the respondents' case and submitted a final form. 5. According to the further case of the respondents, she has been living with her father who has all through maintained her and her children, Her husband also was earlier staying with them; 6. The appellant no. 2 is the brother of Sayeed Akhtar and the appellant no. 5 is the wife of the appellant no. 2. Fatma Zohra, appellant no. 4, is the wife of Sayeed Akhtar. It is the admitted position that the relationship of the respondent Bibi Shakila with the appellants is very bitter. The appellant no. 2 is the brother of Sayeed Akhtar and the appellant no. 5 is the wife of the appellant no. 2. Fatma Zohra, appellant no. 4, is the wife of Sayeed Akhtar. It is the admitted position that the relationship of the respondent Bibi Shakila with the appellants is very bitter. It also appears that the minor in question has been living atleast for sometime with the appellants. Her mother however prays for her custody. 7. The learned District Judge accepted the respondent's case and allowed her application directing the appellants to hand over the child to the respondent. 8. Mr. Tara Kant Jha, the learned counsel for the appellants and Mrs. Sheema Ali khan who followed him have strenuously contended that since now the minor is a1mittedly over 7 years of age, her grand-father Sayeed Akhtar bas a preferential right to be appointed as guardian under the Shia Law applicable to the parties. Mrs. Khan placed reliance on the chapter dealing with the guardianship of the block by Mulla and argued that the right of the mother to the custody of her female child continues only till the minor attains the age of seven. I am afraid, the enunciation of law as pressed on behalf of the appellants cannot be accepted as correct. Dealing with Shia Law, Mulla stated as follows :- "Under the Shia Law, the mother is entitled to the custody of a male child until he attains the age of two years, and of a female child until she attains the age of seven years. After the child has attained the above mentioned age, the custody belongs to the father. If the mother dies before the child has attained that age, the father is entitled to the custody. On the death of both the parents, the custody belongs to the father's father. It is doubtful to whom the custody belongs in the absence of the father's father: Baillie, II 95." The right of the mother is confined to the period the daughter is under seven only when the father is alive. This is clearly indicated by the statement which follows and is quoted above. It is doubtful to whom the custody belongs in the absence of the father's father: Baillie, II 95." The right of the mother is confined to the period the daughter is under seven only when the father is alive. This is clearly indicated by the statement which follows and is quoted above. Dealing with the right of the parents and the father's father of minor Shia girl to be appointed as her guardian, Neil B.E. Baillie, who is a recognised authority on the Muslim law, states at page 95 of the IInd Volume of a Digest of Moohummudan law, that, "After the child has been weaned, the father has a preferable right to its custody if a male and the mother if a female, until the child has attained the age of 7 yeah or 10, according to some; while others maintain the mother's right to the custody of a female child till she marries." Proceeding further, it is said : "But if he (i.e. the father) should die, the mother has a preferable title over his executor to the custody of both the children," So far as the father's father right is concerned, he said- "when bath the parents .of a child are dead, his or her custody belongs to the father's father." Tyabji in a book an Muslim law has reiterated the position. To quote his wards; "247. In the absence of either the father or the monther, the other parent has under shite Law the right to the custody of a minor child, whatever its sex and age." "248. In the absence of both the parents, the father's father is under shiite law entitled to the custody of tile children." 9. Mrs. Khan has relied on the following statements in B.R. Verma's Mohemmedan Law : "Shia Law- Ehe guardianship .of the person of a minor belongs to the fallowing relation : (a) … …. …. (b) in the case of a boy over two year (?) and girl aver seven years of age to the father and in default of him, the true grand-father how highsoever." The pattern followed by Mulla in his book has been borrowed by Mr. B.R. Verma and board propositions have been stated in form of sections. …. (b) in the case of a boy over two year (?) and girl aver seven years of age to the father and in default of him, the true grand-father how highsoever." The pattern followed by Mulla in his book has been borrowed by Mr. B.R. Verma and board propositions have been stated in form of sections. The above quoted observation is to be found in the discussion under section 102 which states that the custody of the person of a minor shall belong in the case of a girl below puberty, whether married or unmarried to the family relations in the following ORDER : Mother, Mother's mother, how highsoever; father's mother, how highsoever; sister; Sister's daughters; Maternal aunts et cetera," and only in default of them to the male paternal relations in which category 'father's comes first. The section, therefore, goes against the case of the appellants further than the other authors. The Commentary relied upon by Mrs. Khan refers to Baillie IInd Volume at page 95 mentioned in para 8 above and to the decision of the Calcutta High Court in Lardli Begum v. Mehomed Amir Khan I.L.R.14 Calcutta, 615. As pointed out above, the views of Baillie are not in favour of the appellants. So far as the decision in Lardli Begum's case is concerned, it has no application as the contest there, was between the father and the mother. An earlier decision of the Court in Fuseehun v. Kaji : I.L.R. 10 Calcutta, 15 wherein the claim of the mother who had married a second time was upheld in preference to paternal relations of a Shia minor girl was also referred to. However, I do dot think any of these two cases are helpful as they were decided before 1980 when certain Regulations repealed by the Guardians and Wards Act 1980 were in force. Since I do not find any authorities ill support for the views of Mr. B. R. Verma, I do not accept them as correctly stating the law. 10. I accordingly, hold that under the Muslim law, applicable to the Shias, the right of the father's father to the custody of a minor child arises only if both the parents arc dead. So long either of them is alive, he or she will be preferred to the father's father. 10. I accordingly, hold that under the Muslim law, applicable to the Shias, the right of the father's father to the custody of a minor child arises only if both the parents arc dead. So long either of them is alive, he or she will be preferred to the father's father. The respondent-mother Bibi Shakila has, therefore, a preferential right of being appointed as the guardian of the person of her daughter. 11. The decision on the rights of the contenders to guardianship, according to the personal law, is, however not conclusive on the question of choice. The provisions of section 17 of the Act are relevant in this regard. Subsection (1) directs the Court to take into account the personal law for deciding a dispute of guardianship, but subject to the provisions of the section which require the welfare of the minor to be taken into account. While deciding the welfare issue. "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 relationship of the proposed guardian with the minor or his property" have to be considered, sub-section (3) further requires the Court to consider the preference indicated by a minor, if the minor is old enough to form an intelligent opinion. The application of the personal law, therefore, cannot feter the powers of the Court in making a different choice if the welfare of the child so demands, but in that case the Court must have weighty reasons to do so. The question next to be considered in the present case is therefore whether in view of the circumstances any of the appellants should be preferred. 12. The learned counsel for the appellants strenuously contended that the most suitable person to be appointed as the guardian is Sayeed Akhtar the appellant no. 6 as he is earning a large amount of money in the different foreign countries and is otherwise also possessed of substantial properties. It is stated that the father of the respondent Bibi Shakila is a man of ordinary means and so is the respondent's brother and they cannot provide the minor with the amenities of life. In an affidavit filed in this appeal and sworn by the appellant no. It is stated that the father of the respondent Bibi Shakila is a man of ordinary means and so is the respondent's brother and they cannot provide the minor with the amenities of life. In an affidavit filed in this appeal and sworn by the appellant no. 2, it has been stated that if Sayed Akhtar is appointed as the guardian of the three children of the respondent, he would, besides maintaining them appropriately, invest a sum of Rs. 10000/- in favour of each of the three minors on long term basis. When the hearing of the appeal was taken up, in the month of April, 1985, we were impressed by this circumstance and wanted a statement to be-made by Sayeed Akhtar personally in this regard. We were told that he was out of the country and would be returning back after sometime. Accordingly, the case was adjourned more than once. However, Sayeed Akhtar could not get time to visit the country and ultimately the hearing of the appeal had to be concluded. One of the main grievances raised on behalf of the mother of the child is that Sayeed Akhtar has no time whatsoever to look after the children and tile girl has been left behind with her step grand-mother and her children. The Court below has also taken into account this aspect. Mr. Asghar Hussain appearing on behalf of the respondent emphasised on the circumstance that the appellant no. 5 was so busy with his religious teaching work outside the country that in spite of several adjournments in this case he could not spare a few days even on the possession of Id-ul-Fitr to join his family. The stand taken by the appellants that he should be appointed as the guardian has been characterised as a mere pretence under which the minor shall be left in the company of her step grand-mother, and the respondent shall be deprived of her custody. I find considerable force in the argument. I agree with the view of the Court below that the appellant no. 6 has no time to look after the children. He may be in a position to give a substantial financial assistance to them but that should not be taken to be the sole criterion for deciding the interest of the minor. I agree with the view of the Court below that the appellant no. 6 has no time to look after the children. He may be in a position to give a substantial financial assistance to them but that should not be taken to be the sole criterion for deciding the interest of the minor. The affection, day to day care and personal supervision of the health, education and up, bringing of a child are for, more important and should not be out weighted by the sole consideration of financial benefit. 13. Mr. Sheema Ali Khan laid great emphasis on the fact that Rukaiya had indicated in the court below her preference to live with her grand-father. This, aspect has been considered in para 16 of the JUDGMENT : in the court below and I fully agree with the view of the learned District Judge that the girl who was just about 7 years old did not fully appreciate the relevant circumstances as she was coming from the custody of the appellants where she might have been tutored to say so. In any view, she is not fortunate to have the loving care of her grand-father who is too busy otherwise. I am, therefore, in full agreement with the decision of the court below. 14. It goes without saying that if Sayeed Akhtar is really fond of the children, he would make available necessary funds for their education etc. even while they are placed under the guardianship of their mother. 15. In the result, this appeal is dismissed with costs payable to the respondent. Hearing fee is assessed at Rs. 500/-.