JUDGMENT
Dawson Miller, C.J.
1. This is an application in revision against an order of the Subordinate Judge of Gaya, dated the 19th March 1920 appointing Babu Gobind Prasad, Pleader, as guardian ad litem of the minor defendants NOS. 5 and 6 in the suit. The petition is filed on behalf of defendants Nos. 5 and 6, who were originally represented by their mother as guardian, but subsequently to the institution of the suit their mother died and they now complain that the appointment of Babu Gobind Prasad made on the 19th March was without jurisdiction on the ground that no notice of the application for the appointment of the guardian was served upon them in accordance with (4) of the Civil Procedure Code. It appears that Babu Gobind Prasad was appointed by the learned Subordinate Judge upon an application made by the plaintiff and no notice of that application was served upon the minors or upon the guardian whom it was proposed to appoint. Subsequently, a petition was filed on behalf of the minor defendants asking for the appointment of their grandmother as guardian ad litem and objecting to the appointment of Babu Gobind Prasad which had been made without any notice being served upon them. The learned Subordinate Judge after hearing that, objection refused it and the main reason apparently for his refusal was that he was not in favour of appointing a parda nashin lady. Before the Civil Procedure Code of 1908 same into force there was no prevision corresponding to that which now appears as Order XXXII, Rule 3, Clause (4), and that rule was no doubt introduced into the Code of 1908 largely in consequence of the decision of the Full Bench of the Calcutta High Court in Suresh Chunder Wum Chowdhry v. Jagut Chunder Deb 14 C. 204 (F.B.) : 7 Ind. Dec. (N.S.) 135, in which two of the learned Judges who composed the Court on that occasion expressed the opinion that no order appointing a guardian ad litem for an infant defendant on the application of the plaintiff should be made ex parte and that no such order should be made until the Court is satisfied that the infant has been duly served and there has been an opportunity for making an application on behalf of the infant. Although the order appointing a guardian was not set aside in that case, still at that time there was no express provision of law in the Civil Procedure Code requiring that notice of such an application should served upon a minor. Under the present land, however, matters stand differently and by the express provision of Order XXXI, Rule Clause (4), both the minor and his guardian must be served with notice before any order can be made on an application under that rule. It seems to me that in the present case the order made by the learned Judge was without jurisdiction and that his order, dated the 19th March, should be set aside as the minor was not served with notice and had no opportunity of appearing through a Pleader on that occasion in order to express his views-and wishes as to the appointment of a guardian.
2. We have been asked to say that the reasons given by the learned subordinate Judge for refusing to appoint the grandmother of the minors’ as their guardian when an application was subsequently made by them on the 23rd March are not valid reasons but the order made on that occasion is not at present the subject of revision before the Court. At the same time, we think it desirable to point out to the learned Judge that, in appointing a guardian for a minor, it is desirable if possible that he should consider the wishes of the minor as to the person who should be appointed. It was stated by Mr. Justice Straight in the case of Jwala Dei v. Pirbhu 14 A. 35 : A.W.N. (1891), 192 : 7 Ind. Dec (N.S.) 394 that in his opinion in a proceeding of this kind the Court having to deal with it would be bound by the wish expressed by a minor unless it saw that the guardian he asked to be appointed was an undesirable and unsuitable person, I wish to guard myself from saying that in all cases the wishes of the miner should be taken as conclusive by the Court which has to decide the appointment of a guardian but, at the same time, it is obvious that the wishes of the minor, if it can be shown that the guardian whom he wishes to hare appointed is a suitable person, is a matter which ought to carry considerable weight in the mind of the Court. I may further point out that the objection of the learned Subordinate Judge to appoint the paternal grand mother of the minor merely on the ground that she was a parda-nashin lady is hardly one which can be supported having regard to the usual practice in this country. It is well-known that the mother of the minor is more frequently than nor, in the absence of any more suitable person, appointed a guardian and the paternal grand-mother has also a strong claim in the absence of a mother to be so appointed. Indeed, in the case of Maharanee Ram Bunsee Koonwaree v. Maharanee Soobh Koonwaree 7 W.R. 321 it was pointed out by the Court that the paternal grand-mother with the assent of the nearest male kins man on the father’s side has (in preference to the step mother) the right to dispose of a minor in marriage and that, according to Hindu Law, a paternal grand mother has a preferential right over a step-mother to the guardianship of the minor. That case, it is true, was a case dealing with the guardianship of the person of the minor but unless there is any valid reason for refusing to appoint either the mother or the grand-mother it seems to me that the mere fact that she is a parda nashin lady is not in it self a sufficient ground for rejecting entirely her claims. We set aside the order of the 19th March 1920 appointing Babu Goband Prasad, with the result that it will be necessary for the plaintiff again to make an application for the appointment of a guardian ad litem for the infant defendants and before any appointment can be made notice of that application must be served upon the minors so that they may appear and state their desires in the matter and argue the matter if necessary before the learned Subordinate Judge. The costs of this application will be costs in the suit. We assess the hearing fee at one gold mohur.
Ross, J.
3. I agree.