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Judgment
The appellant put in a petition under Sections 7 and 39 of Act VIII of 1690. So far as the application u/s 39 is concerned we think the, facts of the case reported in Bai Harkor v. Bai Shangar 9 Ind. Dec. 758, are exactly similar to those of the present, case and the ruling of Sir Charles Sargent, C. J., in that case was that the word "instrument" in Section 39 must be confined to instruments ejusdem generis with a Will, and it does not cover a decree of Court embodying a compromise. We think that this interpretation is correct. But u/s 7 which was not noticed; by the learned District Judge if the Court was satisfied that it is for'' the welfare of a minor that an order should be made appointing a guardian of his person or property or both, it could do so and the result of such an order would be removal by implication of any guardian who has not been appointed in any of the ways mentioned in Section 39. There being no guardian appointed by the Court or by Will or by any other instrument, the petitioner was entitled to ask the Court to appoint a guardian of the person and property of the minor.
It is contended by the learned Pleader for the respondent that the main properties mentioned in the petition for the appointment of a guardian do not belong to the minor, but belong to the respondent herself under the terms of the compromise decree. It is not for us at this stage to express any opinion on this point. The lower Court will deal with the question if it be necessary, when properly disposing of the application made by the appellant.
We set aside the order of the learned District Judge and direct that the petition be disposed of according to law. Cost will abide the result.
No order is necessary on Civil Revision Petition 929 of 1916.