Richard Garth, C.J.

1. We are extremely unwilling in this case to interfere withthe order of the lower Court. We believe that under the circumstances the uncleof the girl is a far preferable guardian of Inami Begum to the petitioner, thegrandmother.

2. But the decision of Mitter and Wilkinson, JJ. in Fuseehunv. Kajo I.L.R. Cal. 15 is directly in favour of the appellant; and we thinkthat we are bound by that decision, unless we are prepared to refer thequestion to a Full Bench.

3. That also was a case decided under Act IX of 1861. Theplaintiff was the maternal grandmother of the minor, a girl aged 12 years, whohad attained puberty. The parties who claimed to be guardians were, first, themother of the minor, who, as in this case, had married again, and wasdisqualified from being guardian; and, secondly, the paternal uncles of theminor. The Court held that, though under Mahomedan law the uncles would be theproper guardians, Section 21, Regulation X of 1793 (applicable to minors underthe Court of Wards), and Section 27* of Act XL of 1858 (applicable to otherminors), read together, prohibited the appointment of anyone but a female to bethe guardian of a female. The girl was accordingly made over to the custody ofthe maternal grandmother and taken away from that of the paternal uncles.

4. In this case the plaintiff is the grandmother of theminor, who, although she has not attained puberty, is found to have beenlawfully married. The defendant is the girls paternal uncle. The mother of thegirl, as in the case referred to, has married again, and is consequentlydisqualified from acting as guardian.

5. The facts of the above case are therefore, so far as themain point in question is concerned, undistinguishable from those of thepresent, and we consider that we are bound by it. At the same time, we have somuch doubt as to whether that case was rightly decided, that we should bedisposed to refer the question to a Full Bench if it were not for the fact thatthe girl in this instance, although married, appears not to have attained the ageof puberty.

6. The only ground upon which we doubt the correctness ofthe above case is this: that the learned Judges seem to consider that Section27* of Act XL of 1858 obliges the Civil Court to appoint a female as theguardian of the person of a female minor. We think that it may well be doubtedwhether the Act did not mean to leave the law as it was, in which case we mighttake as our guide the rule of Mahomedan law.

7. But it would seem from Baillies Mahomedan Law, secondedition, p. 438, that where a girl has not attained the age of puberty, thegrandmother is a proper guardian, in preference to her uncle or other malerelative, so that even if Act XL left the matter open, the rule of Mahomedanlaw would seem in favour of the petitioner.

8. We think, therefore, that the judgment of the lower Courtshould be reversed, and that the girl should be given over to her grandmotheras tier guardian. Bach party, under the circumstances, will pay their owncosts.

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Page No. 576 and 577 Foot Note

* [Act not to authorize the appointment of guardians ofcertain married women and other persons .

Guardianship during the minority of the father or husband ofa minor when to cease.

Section 27: Nothing in this Act shall authorize theappointment of a guardian of the person of a female whose husband is not aminor; or the appointment of a guardian of the person of any minor whose fatheris living and is not a minor; and nothing in this Act shall authorize theappointment of any person other than a female as the guardian of the person ofa female. If a guardian of the person of a minor be appointed during theminority of the father or husband of the minor the guardianship shall cease as soonas the father or husband (as the case may be) shall attain the age ofmajority.]

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Bhoocha vs. ElahiBux (21.05.1885 - CALHC)