Gopalakrishnaswami Naicker vs V. Srinivasa Aiyangar and Others

Ramesam, J.—This is a revision petition against the order of the District Judge of Ramnad on an application under the Guardians and Wards

Act for the assignment of a security bond executed by a guardian and sureties* u/s 34 (a) of the Act. That section shows that the guardian and

sureties engage themselves duly to account for what may be received in respect of the property of the ward. The learned District Judge rejected

the petition holding that as the ward had attained majority he had no jurisdiction to act u/s 35 and for this position he relies upon the decision in

Bathina Subbarami Reddi Vs. Ganesam Pattabhirama Reddi, now also reported in ILR (1926) M. 80. In that case the guardian was discharged

after filing his accounts in court and it was held that the Court had no jurisdiction to hold an enquiry and ascertain what amount is really due by the

guardian. The application was filed u/s 41 and in the course of the judgment it is observed that a court acting u/s 41 (4) was not bound to make the

declaration mentioned in Section 41 (4). This is true. But there is the further observation:

The whole scheme of the Act seems to provide for matters of this kind, i.e., disputes between the minor and the guardian, by way of suit. During

the minority Sections 35 and 36 provide for suits being filed by a next friend of the minor in case of misconduct on the part of the guardian, and

there can be no doubt that, when the minor attains majority, he can bring a suit against his guardian. There being no provision at all for any enquiry

into accounts by the court, I think the opinion expressed by the Calcutta High Court is the correct one.

We are not able to agree with everything that seems to be implied in these sentences. Now, taking Sections 35 and 36 for consideration, we first

observe that Section 35 deals with a case where an administration bond was taken and Section 36 where such a bond was not taken. In the case

of Section 36 we have got these words:

...Any person, with the leave of the court may, as next friend, at any time during the continuance of the minority of the ward, and upon such terms

as aforesaid, institute a suit against the guardian...

It is clear that this section relates only to cases where the ward continued to be a ward. But when we come to Section 35 we have not got

words like ""next friend and during the continuance of the minority of the ward"". On the other hand, the language in Section 35 except the very last

clause is perfectly general and can apply to a case where the ward was a minor or to a case where the ward has ceased to be a minor. The section

was intended to cover both the cases and the last clause "" shall be entitled to recover thereon as trustee for the ward in respect of any breach

thereof"" no doubt applies only to a case where the bond was assigned to some person during the minority of the ward and may not strictly refer to

a case where the bond was assigned to the ward after he attained majority. Even then it is not that it produces any anomalous result but it only

looks like a surplusage. There is nothing in Section 35 making it inapplicable to the case of a ward attaining majority and applying for an assignment

of the bond. The court below also relied on the judgment in Krishna Chettiar v. Venhatachalapathi Chettiar ILR (1918) M 302 : 1918 36 MLJ

In that case all that was decided was that there is no right of suit as for breach of a condition unless there is a preliminary order of the court. If

the matter rested there that case would have given no difficulty, but there are some further observations that the preliminary order should be an

order to exhibit accounts or to pay the specified balance and at page 309 we have got the following observation:

In the case of bonds under the Guardians and Wards Act the proper course appears to be to get an order to pay against the guardian u/s 34 (d) or

a decree against him, and, if he fails to satisfy the order or decree, then to sue the sureties in respect of this breach as to which there will be no

defence.

This observation is strictly obiter dictum and perhaps was not necessary for the decision of the case. Anyhow we are not able to agree with this

observation. It has been decided in Hari Krishna Chettiar v. Govindarajulu Naicker (1925) 50 MLJ 273 that there can be no order to pay u/s 34

(d) except in respect of the amounts that appear due according to the accounts filed by the guardian. So there is some inconsistency between the

recent decision and these observations in Krishna Chettiar v. Venkatachalapathi Chettiar ILR (1918) M 302 : 36 MLJ 114. In the present case

the District judge says:

An assignment of the bond can be made only on being satisfied that the engagement of the bond has not been kept up.

This is true; but to be satisfied that the engagement of the bond has not been kept up, the court has to make some kind of prima facie enquiry and

the ward should not be referred to a regular suit for the purpose of satisfying the court that the engagement has not been kept up. All that Section

35 says is:

On being satisfied that the engagement of the bond has not been kept up.

If on a perusal of the accounts a court has reason to think that at least in respect of some monies received in respect of the property of the ward

they have not been duly accounted for, it is reasonable to hold that there is ground for being satisfied that the engagement has not been kept up.

We are therefore unable to agree with the reasoning of the District Judge on this part of the case also.

The result is we set aside the order of the District Judge and direct him to dispose of the case according to law in the light of the above

observations. The petitioner will be entitled to costs in this Court and costs in the Court below will abide the result.