Jagarnath Lal vs Lal Babu

Rowland, J.—This is an application against an order of the District Judge of Patna dated January 31, 1936, directing the petitioner to pay into Court the sum of Rs. 5,992-30 only. The proceeding arose in guardianship case No. 295 of 1926 which relates to the person and property of a minor named Dayanand. The minor was born on March 22, 1917, and it is stated that for a time his mother was appointed his guardian under the Guardians and Wards Act, but she was removed for incompetence. Thereafter one Raj Bahadur was appointed guardian on September 27, 1924. He died on July 15,1926, and the petitioner Jagarnath Lal was appointed guardian of the person and property of the minor on January 11, 1927. He submitted accounts to the District Judge in February 1928. He submitted accounts again in January 1929. The correctness of the latter account was challenged by the husband of the sister of the minor who presented a petition to the District Judge objecting to the accounts and praying for the removal of the petitioner from guardianship. The accounts were checked by a Commissioner and were passed by the District Judge, who on May 22, 1929, rejected the prayer for the removal of guardian. Thereafter the petitioner filed accounts covering the period from December 1929 to April 1933. Objection was taken to these accounts by Lal Babu, the maternal uncle of the minor, who presented a petition to the District Judge praying for the removal of the guardian. The petitioner showed cause declaring that his accounts were correct, but stating that he was not willing to continue any longer as guardian and asking for his discharge. The District Judge made an enquiry into the allegations against the petitioner.

The principal items in dispute were payment amounting to Rs. 3,200 said to have been made to the mother of the minor for the maintenance of the minor and an amount of Rs. 1,575 which was a part of the consideration money of a sale-deed in respect of a certain property of the minor which the District Judge had given the guardian permission to sell for Rs. 5,075. Of this, Rs. 1,575 was payable to one Mewa Lal who held a zarpeshgi in his own name though actually on behalf of Bhola Kuer, the real beneficiary. A question was raised whether this money had been paid. The District Judge passed an order on August 23, 1934, removing the guardian, expressing an opinion unfavourable to the correctness of the accounts in respect of these items and some others and directing that a more complete check of the accounts be made by a Pleader Commissioner. Lal Babu''s application to be appointed guardian was disposed of on February 18, 1935. The application was refused on the ground that the ward would attain the age of 18 years within a few weeks. The District Judge feeling somewhat uncertain whether there being no present guardian, the minor would attain majority at the age or at the age of 21 was inclined to proceed on the assumption that the minor would attain his majority at the age of 18 years. Apparently no one was able to show the District Judge Section 3, Majority Act of 1875 (Act IX of 1875) which has been only to be read to make it absolutely clear that the ward cannot attain majority till he reaches the age of 2l. I mention this because in the circumstances of this case there may be a possibility of the institution of some litigation on behalf of Dayanand and it may avoid trouble if I said clearly that a suit instituted by him in his own name now will be incompetent on the ground of his minority. Lal Babu, though his application to be appointed a guardian was refused, was, however, permitted to continue the proceedings on the petition which he had presented objecting to the accounts of the petitioner. Those proceedings resulted in an Order No. 111, being passed by the Additional District Judge on December 5, 1935.

The learned Judge after examining the Commissioner''s report found that it was not. of much help. He then considered the question whether it was open to him to record any definite finding as to the exact amount due from the ex-guardian or not or whether such finding would be ultra vires or without jurisdiction. He appears to have thought that a Court has power to hold an investigation or scrutiny not for the purpose of ascertaining the present liability of the guardian but for considering whether the accounts are satisfactory enough to entitle a guardian to a discharge or so unsatisfactory as to warrant a sanction to legal action being taken against him. He concluded that the Court has no power to record any definite finding as to the exact amount due from the ex-guardian for which a regular suit against him under the general provisions of the law will have to be brought. Accordingly he ordered "let this proceeding against the ex-guardian be therefore dropped." On December 10, 1935 Lal Babu presented a petition referring to the District Judge''s previous order dated August 23, 1934, and asking the Judge to direct the petitioner to pay into Court or to Lal Babu himself the amount of Rs. 5,517-3-0 in respect of which the District Judge had expressed an opinion unfavourable to the correctness of the petitioner''s accounts.

The District Judge heard parties, but took no further evidence, and on January 31, 1936, passed the order under revision. The amount of Rs. 5,992-3-0 does not agree with the amount which Lal Babu had mentioned in his petition and I do not understand how the District Judge has arrived at it. Three objections are taken to the order of the District Judge. First that the Court should not have taken up this enquiry at the instance of Lal Babu who was not a guardian of the minor or a party to any proceeding pending in the Court at the time; secondly that that Court was functus officio after the removal of the guardian and after the refusal of his discharge and that there was no power to pass an order on the guardian for the deposit in Court of a stated sum; and thirdly that in view of the order dated December 5, 1935, it was not open to the District Judge to allow the matter to be re-agitated and to pass a different order. First as regards the locus standi of Lal Babu, Section 39, Guardians and. Wards Act, permits the Court to act in the matter of removal of a guardian on the application of any person interested or of its own motion. The enquiry at least until December 5, 1935, was in continuation of a proceeding which Lal Babu was competent to institute for removal of the guardian and as a subsidiary matter for investigation of his account. 1 do not find any defect in the proceedings on this ground. The second point raises a question of some difficulty regarding which different opinions have been expressed not only by the District Judge himself in the two successive orders which I have set forth, but also by several High Courts in this country.

In Jagannath Panja v. Mahesh Chandra 21 CWN 688 : 36 Ind. Cas. 286 : AIR 1916 Cal 459 : 25 CLJ 149 , it was held that a guardian cannot be compelled to pay into Court a larger sum than is found due on the accounts which he has exhibited u/s 34 (c) of the Act. In Hari Krishna Chcttiar Vs. Govindarajulu Naicker, , it was held on examining Sections 34, 35, 36, 41 and 45 that under those sections a guardian can be directed to pay into Court the amount admitted by him; but if it is sought to make him liable for a larger amount than is admitted, the question Can be decided only in a regular suit. The Judges in that case sought to justify an order of this nature by extending the principle of Section 43 which empowers the Court to make an order regulating the conduct of proceedings of any guardian appointed or declared by the Court. But it is questionable whether such a construction of Section 43 can safely be relied on failing a power under Sections 34 and 41. In Misra Rangnath Vs. Misra Murari Lal, , it was held that there is no such power in Sections 34 and 41. On the other hand orders similar in nature to that under revision have been passed and approved in Heeralall Chakraburtty Vs. Sreemutty Mansha Moyee Debi, , and in Muhammad Fariduddin Ahmad Vs. Ahmad Abdul Wahab, . So also in Sita Ram v. Govindi 46 A 458 : 80 Ind. Cas. 592 : AIR 1924 All. 593 : 22 ALJ 585 , but that decision was dissented from in Misra Rangnath Vs. Misra Murari Lal, , which presumably represent the present view taken in the Allahabad High Court. This being the state of authorities, I would certainly not be justified in interfering with the * order of the District Judge on the ground that he has taken a wrong view of the law in the final order which was passed by him. Whether the final order passed had been in favour of the guardian or against him, I should have had to recognize that the District Judge has taken a course which was supported by at least some judicial authority. But the third objection against the order complained of is, 1 am afraid, fatal.

The question which the District Judge decided by his order of January 31, 1936, was a question which the same Court had already decided in the same proceeding in a contrary sense. The re-opening of it thereafter was barred by the principle of res judicata. The leading cases on the application of this principle to miscellaneous proceedings in the same manner as it applies to the suits are Hook v. Administrator General of Bengal 48 C 499 : 60 Ind. Cas. 631 : AIR 1921 PC 11 : 48 IA 187 : 19 ALJ 366 : 40 MLJ 423 : 29 MLT 336 : (1921) MWN 313 : 33 CLJ 405 : 3 UPLR (P.C.) 17 : 23 Bom.LR 648 : 25 CWN 915 : 14 LW 221 (P.C.), and Ram Kirpal v. Rup Kueri 6 A 269 : 11 IA 37 : AWN 1886, 286 : 4 Sar. 69 : 8 Ind. Jur. 214 (P.C.). It was not open to the District Judge after having passed a final order on the matter on December 5, 1935, and this order having not been set aside by any other Court, to entertain a further application in the same matter and to pass a different order. On this view the application succeeds, and the order, dated January 31, 1936, is set aside. The petitioner will get his costs. Hearing fee two gold mohurs.