Patubala Dassi vs Kundalini Dassi

Mookerjee, J.—This appeal is directed against an order passed by the District Judge of Birbhum appointing Patubala, the sister of the minor, as guardian of the person of the said minor and the Nazir of that Court as guardian of the properties of the said infant Sibadasi. Patubala who has been appointed as guardian of the person of the minor has preferred this appear against that part of the order under which the Nazir was appointed guardian of the property of the minor.

Before the lower court, there were two applications, one by Kundalini, the father''s sister of the minor and another by Patubala, the sister of the minor, for being appointed guardian of the person and property of the said minor. There is now ho contest before me about the competency of Patubala to act as the guardian of the person of her minor sister Sibadasi.

The appointment of the Nazir of the Court of the District Judge as the guardian of the properties of the infant has been questioned under two heads. It is first contended that there was no application by the Nazir to be appointed as guardian and there is no mention in the records that he has consented to such an appointment. Secondly, the appointment not being of an individual but of the holder of an office, such an appointment is bad in law.

Reliance was placed upon the decision in Jaiwanti Kumri v. Gajadhar Upadhya ILR (1911) 38 Cal. 783 for the proposition that a court has no power to make an order appointing a guardian of a minor except on a substantive application u/s 8 of the Guardians and Wards Act (VIII of 1890). It appears that the mother and the grandmother of the minor had made two separate applications before the court for being appointed as guardian of the infant in question. During the hearing, the two contesting parties had agreed that one Dulip Narayan Singh be appointed guardian of the property of the said minor, but he expressed his disinclination to undertake that responsibility. The District Judge, without holding any enquiry into the respective merits of the two Applicants before the Court, appointed the Nazir of his Court to be guardian of the property of the infant. The mother was appointed as the guardian of the person. this Court held that as there was no consideration of the respective merits of the applications and there was no application u/s 8 for the appointment of the Nazir as the guardian of the property of the infant, the appointment of the latter was without jurisdiction. The learned District Judge was directed to make a fresh appointment after the applications pending before the Court were considered on the merits.

Reference, however, should be made to another Bench decision of this Court in Sundarmani Dei v. Gokulanand Chowdhury (1912) 18 C.W.N. 160, where the earlier decision referred to above was considered. In this case, the proceedings were initiated on an application u/s 8 of the Guardians and Wards Act by the mother of the infant. That application was opposed by three other persons, relations of the husband of the said Applicant. One of the objectors proposed one of the leading lawyers of the Cuttack Bar, a relation of the widow and of the minor, to be appointed as guardian. The Collector of the district also took steps under Clause (b) of Section 8 of the Guardians and Wards Act and suggested another person as suitable for appointment as guardian. The District Judge took evidence on the respective merits of the Applicants and of the names proposed and came to the conclusion that the lawyer relation should be appointed as guardian. After the appointment had been made, the said guardian intimated his willingness to accept the office of guardian and furnished the required security. One of the objections raised was that there had been no application by the person appointed as guardian and accordingly the appointment was bad in law on the authority of Jaiwanti Kumari v. Gajadhar Upadhya (supra). It was pointed out that this latter decision was no authority for the very broad proposition which had been attempted to be laid down. The Nazir who had been appointed in that case as the guardian had not been suggested by any one of the parties before the Court for appointment as guardian and the applications which had been filed by the contesting parties had also, not been considered by the Court. this Court declined to set aside the order passed by the District Judge appointing the lawyer relation as the guardian of the property of the infant. On other considerations, however, this Court held that a third party should not be appointed as guardian of the person of the infant and directed that the mother be appointed as guardian of the person.

The question of the appointment as guardian of a person other than the Applicant came up for consideration in Narotam v. Tapesra ILR (1934) 57 All. 208. Following the decision in Sundarmani Devi v. Gokulanand Chowdhury (supra), the Allahabad High Court also held that when all the persons interested in the matter of the appointment of a suitable guardian were before the Court and had adduced all the evidence that they wanted to produce, the Court would not give effect to what at best was a technical objection that the Court had no jurisdiction to appoint a person as guardian of the infant who had not himself filed an application in accordance with the provisions of Section 10 of the Act. It was pointed out that there was no direct and definite provision in the Act which disentitled a Judge to appoint a person as guardian who has not filed an application u/s 10 of the Act.

The position, therefore, is clear that the absence of an application by the person appointed as guardian is no defect which can affect the legality of the order by the court appointing him as a guardian.

In the present case, however, my attention has not been drawn to any consent having been obtained from the Nazir to the appointment made--either before the appointment or subsequent thereto. The legality of the appointment may be questioned on this ground.

With regard to the second objection raised about the appointment of a person not in his individual capacity, but as the holder of a position or post requires careful consideration.

There are two Bench decisions of this Court in Ashalata Ray v. Society for the Protection of Children in India ILR (1934) 57 All. 208 and Mc Sweeney v. Margaret Arbuthnot (1930) 35 C.W.N. 158. It has been held definitely in the earlier of the two cases that a society cannot be appointed as guardian of an infant. In that case, the learned District Judge refused to appoint any guardian of the person of the minor. He, however, appointed the Society for the Protection of Children in India as guardian of the property belonging to the minor. It was pointed out that the provisions of the Guardians and Wards Act precluded the appointment of a society as guardian either of the person or of the property of an infant.

The definition of the term guardian as appearing in Section 4(2) of the Guardians and Wards Act of 1890 indicates that it--

means a person having the care of person of a minor or of his property, or both his person and property.

In the General Clauses Act (X of 1897), a person is described, in Section 3(55), as including--

any company or association or body of individuals, whether incorporated or not.

Reliance was placed upon this definition of the word "person" in support of the appointment of a body of persons or an association as a guardian under the Guardians and Wards Act.

While applying the definition of the word "person" as appearing in the General Clauses Act, we must .not lose sight of the opening words of Section 3 of that Act which are in the following terms:

In this Act and in all Central Acts and Regulations made after the commencement of this Act, unless there is anything repugnant in the subject or context..."person" shall include any company or association or body of individuals, whether incorporated or not.

We are, therefore, referred back to the provisions as contained in the Guardians and Wards Act to determine as to what is meant by the word "person" and also whether that term connotes all the different categories as described in Section 3(55) of the General Clauses Act.

If we only refer to the principles underlying the appointment of a person as a guardian, we cannot overlook the further fad that it is not any and every person who may be appointed as guardian. One who has got any interest adverse to that of the minor cannot be appointed as guardian, either of the person 01 of the property belonging to the infant.

A guardian stands in a fiduciary relation to his ward and he must hold the property belonging to the infant for the benefit of the latter. Though the view has been expressed in some of the decisions vide Kisandas Laxmandas v. Godavaribai ILR (1937) Bom. 636 that a guardian appointed under the Guardians and Wards Act is not an express trustee, but there is no doubt that his position is analogous to that of a trustee.

Lord Romilly in Mathew v. Brise (1851) 14 Beav. 341, 345 : 51 E.R. 317 observed:

A guardian is not only a trustee of the property, as in an ordinary case of trustee, but he is also the guardian of the person of the infant, with many duties to perform, such as to see to his education and maintenance. Lord Macclesfield said, "that guardians were but trustees and that the jurisdiction of the Court was grounded upon the general power and jurisdiction which it had over all trusts and a guardianship is most plainly a trust". This shows that the important and principal part of the relation is not confined to the property, but extends beyond it. I consider that it is not confined to that relation and that of all the property which he gets into his possession in the character of guardian, he is a trustee for the benefit of the infant ward.

It is on this principle that the ordinary rule that a trustee who takes upon himself the management of a property for the benefit of others must not shift his duty, on to other persons has been applied in the case of a guardian appointed by court. A guardianship cannot be delegated vide Turner v. Corney (1841) 5 Beav. 515, 517 : 49 E.R. 677.

On the application of these principles, the Court of Chancery in England has not recognised the appointment of a firm as a guardian vide De Mazar v. Pybus. Knudson v. Pybus (1799) 4 Ves. Jun. 644 : 31 E.R. 332.

Apart from the principles to which reference has been made above, we may consider the provisions as contained in the Guardians and Wards Act which required the performance of the duty of the guardian in a particular and specific manner. Is it possible or desirable that either a society or an individual, not in his capacity as such, but as the holder of an office, should be placed in charge as guardian, either of the person or of the property of the infant?

In the later case of McSweeney v. Margaret Arbuthnot, Secretary to the Society for the Protection of Children in India (supra), a limited question arose as to whether a person as the holder of an office should be appointed as guardian.

Although in the earlier decision in Ashalata Ray v. Society for the Protection of Children in India (supra), there are observations which militate against the appointment of an individual only because that person holds a particular position being appointed as guardian, in the later case, however, such considerations did not weigh with the court. It was pointed out in the earlier case that Miss Arbuthnot could not be appointed as guardian either as Secretary or even in her individual capacity. It was pointed out that such an appointment would not be a proper one as the Society itself could not and was not taking any responsibility in the matter of the discharge of the duties by Miss Arbuthnot as guardian of the infant. In the later case, however, although this Court set aside the order passed by the District Judge appointing Miss Arbuthnot, described as Secretary of the association, as guardian of the infant, the District Judge was requested to consider whether or not Miss Arbuthnot might be appointed as guardian as an individual without any reference to her office. It is not possible to make the two observations in the two decisions consistent.

We may conclude from the authorities cited above that it is not competent for the court to appoint either an association or an incorporated body or even the holder of an office as such as the guardian of an infant.

On the facts which arise in the present case now before me, it appears that the District Judge came to the conclusion that neither of the two contestant parties, viz., the sister or the aunt, could be regarded as a proper person to be placed in charge of the property of the minor. After such an expression of opinion, the court below proceeds to observe:

Both parties agree that the Nazir of this Court may he appointed guardian of the properties of the infant.

It is for further consideration whether the consent of the two-parties would in any way modify the legal position which I have indicated above. To my mind, the consent of the parties would not vest the court with jurisdiction to make an appointment which the court was not otherwise competent to do.

On the merits, also, appointing the Nazir of a court, meaning-thereby the holder of that office for the time being, as the guardian of the property of the minor will make it impossible for the court to exercise that control over the guardian which the Act requires the court to do.

Although the court directed that the sister Patubala was to execute a security bond to the extent of Rs. 2,000 for the proper care of the infant Sibadasi, the Nazir was appointed without any security. If sums of money come into the hands of the Nazir qua guardian of the infant, accounts have to be rendered by him to the Court. If the particular incumbent retires or is transferred, the form of the order passed by the District Judge makes the successor a guardian. There is no machinery available and the interest of the minor will not be protected properly without obtaining accounts from a Nazir who has been transferred or who might retire.

The court, before making an appointment, is to be satisfied that the person appointed has got the necessary qualification for the purpose of management of the minor''s property. What the qualification of the then Nazir was, or what the qualifications of a subsequent Nazir might be had not been taken into consideration by the court. There is nothing on the record to justify the appointment of an officer of the Court, not in his individual capacity, but because he is the holder of a particular office, as being the guardian of an infant.

I hold, therefore, that the appointment of the Nazir as guardian of the property of the infant cannot be supported, either in law or on facts. That part of the order passed by the District Judge is set aside and the matter must go back to the learned District Judge for consideration as to the proper person who should be appointed as guardian of the property of the minor. While making the appointment, the Court will not overlook the claim which had been made during the deposition of the Appellant Patubala that half share of the property had been made a gift of by the father of the infant in favour of the husband of Patubala. The further statement made by Patubala about the management of the property while the same was either in her charge or in the charge of her husband had not been quite satisfactory. These are facts which will have to be taken into consideration before the final selection is made by the learned District Judge.

There will be no order for costs in this Court.