Munnilal vs Mukhteshwar Prasad

Dhavle, J.—This is an application in revision by one Munni Lal who has been directed by the District Judge of Bhagalpur to refund Rs. 849-8-0 in connexion with his guardianship of the estate of one Muk. teshwar Prasad a minor. The applicant was appointed guardian of the estate of the minor on 6th November 1933. He was removed from the guardianship on 19th January 1937.

In the interval he had applied to the District Judge on various occasions for permission to bring a certain suit on behalf of the minor. The District Judge repeatedly refused to sanction the suit in the sense of sanctioning any expenditure by borrowing and alienations on account of the suit though Mr. Beevor, the then District Judge, pointed out that no sanction for the suit itself was necessary.

The only ground on which the application before me can be entertained in revision being one of jurisdiction, Mr. Jha for the petitioner has cited Nabu Bepari v. Sheikh Mahomed (1901) 5 C.W.N. 207 and Abdul Hasim v. Malika Khatun AIR (1919) Cal. 833. In the former of these cases Sections 34 and 41, Guardians and Wards Act were considered and it was held that Section 41 cannot be construed into giving the Court, by summary procedure, a power to order accounts to be rendered after the termination of guardianship, and that the summary powers created by Section 34 of the Act cease as soon as the minority of the ward ceases. That was a case where the minor after attaining majority had applied for the appointment of a commissioner to examine the accounts and the District Judge had passed an order directing the guardian to pay to the minor the sum that the com. missioner on examining the accounts had found due.

In Abdul Hasim v. Malika Khatun AIR (1919) Cal. 833 the other case cited for the petitioner, the question arose on the removal of the guardian whereupon the District Judge found that Rs. 1475 was admittedly in the hands of the guardian and directed him to pay the amount into Court. The guardian''s case was that he had applied the balance in his hands for the necessities or benefit of the minor, but the District Judge did not look into the aspect of the matter because he had granted no permission to spend the money in that way. N.R. Chatterjea and Richardson JJ. held in the circumstances that there ought to be a full inquiry into the matter and that if it was found that any portion of the said balance was not spent; for the minor, the Court may make an order u/s 41, Sub-section (3) for payment of such sum into Court and on the guardian failing to pay such sum, the Court may proceed u/s 45 if necessary. This decision is important for present purposes for more than one reason. It holds that the power of the Court u/s 41, Clause (3) to direct a guardian on the termination of his guardianship to deliver any property belonging to the ward in his possession extends to moneys belonging to the minor and it also holds that Section 45 is not inapplicable to a guardian after his removal.

In the present case it appears that the order passed by the lower Court was passed in connexion with accounts submitted by the guardian prior to the order of 19th January 1937 removing him from the guardianship. The accounts for 1934 were filed by the guardian on 27th July 1935 and it is stated by Mr. Jha that they included a sum of Rs. 85 as paid to counsel in Patna for advice in connexion with the suit which has given rise to all this trouble. Order No. 158 which has been removed from the order sheet of the lower Court (as it is before me) but which has been referred to at the Bar seems to show that those accounts for 1934 submitted by the guardian in 1935 were passed by Mr. Beevor, the then District Judge of Bhagalpur, subject to certain notes which do not refer to the fee paid to counsel. Whether the accounts submitted on that occasion did in fact include this fee is not clear but the learned advocate for the opposite party concedes that if those accounts did in fact include that fee, the order of the District Judge which is before me in revision must be modified in respect of that amount.

As regards the other items disallowed by the District Judge and ordered by him to be refunded by the ex-guardian, Nabu Bepari v. Sheikh Mahomed 5 C.W.N. 207 is not in point if only for the reason that here we have a guardian who had submitted his accounts prior to his removal and the accounts were only finally disposed of by the order under revision. In such circumstances the principle followed in Abdul Hasim v. Malika Khatun (1919) 6 AIR Cal. 833 would clearly go to support the order passed by the lower Court. The learned advocate for the opposite party has also drawn attention to Sita Ram v. Govindi AIR (1924) All. 593 which was followed in this Court in Muhammad Fariduddin Ahmad Vs. Ahmad Abdul Wahab, .

To put it broadly the position is that notwithstanding the view taken by Mookerjee and Cuming JJ. in Jagannath panja v. Mahesh Chandra Pal AIR (1916) Cal. 459 Kulwant Sahay and Maepherson JJ., have in this Court, in agreement with the Allahabad High Court, come to the conclusion that the hands of the Court acting under Clause (d) of Section 34, Guardians and Wards Act, are not tied and that the Court has power to scrutinize the accounts submitted by the guardian and find out what the real balance was and direct the guardian to deposit it in Court. If by reason of the removal of the guardian on 19th January 1937 it were to be held that Section 34 has ceased to be applicable to this guardian, Section 41(3) as construed in the case from Abdul Hasim v. Malika Khatun AIR (1919) Cal 833 would seem to give the Court much the same power in respect of this, guardian, the power even to deal with him--under Section 45 if necessary.

Nabu Bepari v. Sheikh Mahomed 5 C.W.N 207 is, of no assistance to the petitioner because the accounts now scrutinized are not sub., sequent to his removal from the guardianship. Mr. Jha contended that neither Section 34 nor Section 45 was applicable to this ex-guardian, and that on the removal of the guardian in January 1937, the accounts filed by him before that date must be taken to have-been passed by the Court. It seems to me that this contention cannot possibly be accepted, especially in view of the interpretation that was placed on Sub-section (3) of Section 41 in Abdul Hasim v. Malika Khatun AIR (1919) Cal. 833 together with the I reasons given for a liberal interpretation of Section 34 in the decision of Walsh and Neave JJ. in the case in Sita Ram v. Govindi AIR (1924) All. 593.

The result is that the order of the lower Court cannot be interfered with in revision as without jurisdiction, except in so far as it may include the fee paid to counsel, if this was included in the accounts for 1934 which were provisionally passed by Mr. Beevor in 1935.

With this small) exception, the application must be dismissed with costs. Hearing fee two gold mohurs.