W.A. Varadachariar vs Raja Ramakrishnamba Garu and Others

Spencer J.

This is an appeal preferred by a guardian of minor''s property appointed under the Guardian and Wards Act. The objection taken by him to the

District Judge''s order is that the District Court had no jurisdiction to issue directions to the appellant in respect of certain trust property of which

the Karwetnagar Zamindars have been regarded as hereditary trustees. This estate was for some time under the management of the Court of

Wards, and, upon the withdrawal of the Court of Wards'' management, u/s 59 of the Court of Wards Act, the guardian appointed under that Act

was made subject to the same rights, duties and liabilities as if he had been appointed under the Guardians and Wards Act. The Guardians and

Wards Act contains no provision empowering the Guardians appointed under that Act to deal with trust properties. Section 63 of the Court of

Wards Act contains a special provision by which the Court of Wards is empowered to make arangements for the discharge of the wards''s duties

as trustee of religious endowments, the Court''s superintendence being restricted as far as possible to the preservation of the property belonging to

the religious institution in question. There is no such provision in the Guardian and Wards Act. It is therefore contended that the District Judge

acted without jurisdiction in giving directions for the examination of the accounts of the trust property by a Commissioner and for the checking of

the collections in the Tiruthani Temple.

For the proposition that the District Court has no power under the Guardian and Wards Act to appoint a guardian in respect of trust properties

there is good authority in Obla Venkatachalapathi Aiyar and Another Vs. Thirugnana Sambanda Pandara and Others, and Kilby v. Mussamat

Bahuria Sheoratan Kuar (1922) ILR 1 Pat. 432.

It is argued for the respondents that Section 59 of the Court of Wards Act in speaking of guardians of the person and property of minors uses

the word ""property ""in the widest significance; but I think we should be slow to assume that any powers are vested by mere implication. Where

powers are conferred under any enactment, we always find definite words clothing the appointee with powers. I am of opinion that, as soon as the

wardship of a ward of Court ceases, arrangements u/s 63 also cease automatically unless there is anything in the Guardians and Wards Act to

cause them to continue.

Next it was argued that the guardian appointed under the Act cannot repudiate his responsibility which was incurred as one of the conditions of

his appointment and he is therefore estopped from repudiating the jurisdiction of the Court if he has accepted such liability. As a trustee de son tort

he would no doubt be liable for acts done during his unauthorised management but that liability will be to answer to the real trustee and not to the

District Court. The suggestion that the District Court though inherently incompetent to deal with the matter can acquire jurisdiction by an agreement

of the parties is one that cannot be maintained in the face of the decisions in Gurdeo Singh v. Chandrikah Singh and Chandrikah Singh v. Rash

Behari Singh ILR (1907) Cal. 193 and in Ranjit Misser v. Ramudar Singh (1912) 16 C.L.J. 77 . No Court can arrogate to itself powers which the

legislature has not conferred on it, see Somakka v. Ramiah ILR 36 Mad. 39 which was a case under the Guardians and Wards Act. These

decisions establish the principle that a Court has no power to adjudicate upon a subject matter which does not fall within its province as defined by

law, and if it has no jurisdiction over the subject matter of controversy, the consent of parties cannot confer such jurisdiction. Moreover it is clear

from Sections 4 and 19 and other sections of the Court of Wards Act prior to S. 63 that no power is vested in the Court of Wards to deal with

property other than that belonging to the minor, and that the powers of superintendence conferred by Section 63 are peculiar to that body.

The order of the District Court so far as it purports to give directions to the guardian as to the management of trust properties must therefore be

set aside. The same order will be made in C.M.A. No. 401 and C.R.P. No. 795 so far as the District Court''s order contains directions assuming

management of trust property.

We make no order as to costs.

Venkatasubba Rao, J.

I have come to the same conclusion.

The point raised is somewhat novel but it is not difficult to decide the question and we may deliver judgment at once. When the Court of Wards

released from its superintendence the property of the respondent, it appointed the appellant the guardian of his property u/s 59 of the Court of

Wards Act. The Court of Wards was apparently in possession not only of the property in which the proprietor had a beneficial interest but also of

the property belonging to a Devastanam of which he was a trustee. The question is: what was the property for which the appellant was appointed

the guardian? Was it only the property which belonged exclusively to the Zamindar? or did it also comprise the property belonging to the trust?

The answer would depend upon the interpretation of the word '' property '' in Section 59. Prima facie, the section must be regarded as dealing with

only the property belonging to the minor. The words ""property of a minor ""in their natural sense could be interpreted only in this manner. Section 4

of the Act defines the term '' proprietor. '' It runs thus: ""''Proprietor'' means a person who owns or has life interest in land either solely or as a co-

sharer. ""This definition does not refer to any property possessed by a proprietor in his capacity as a trustee. Section 19, which deals with the

assumption of superintendence by the Court/of Wards, speaks again of the ""property of a proprietor, ""and the second clause of that section uses

the words '' Immovable and moveable property belonging to him. '' Section 27(f) provides that a guardian referred to in the section shall be paid

such allowance out of the property of the Ward as the Courts thinks fit. '' It cannot be contended that the allowance to be paid to the guardian is to

be out of any property belonging to a trust. Similarly in Section 32 the words used are the property of any ward '' and the section refers inter alia to

the liquidation of debts payable by the Ward and to payment of charges for his religious observances. It is clear that, in all these sections, the

property that is referred to is only the property of which the minor is the owner. If that is so, there is no reason to interpret the words '' property of

the minor'' in Section 59 differently. In this view, the appellant was appointed guardian only of the minor''s property.

On behalf of the respondent reliance was placed upon Section 63. It provides that, if a ward is the hereditary trustee of a temple, the Court may

during the wardship make such arrangements as it thinks fit for the discharge of the ward''s duties as trustee. The argument was put in this way:

Section 63 contemplates the Court of Wards assuming superintendence over the property in respect of which the proprietor has no beneficial

interest, and, it must therefore be assumed that, in the previous sections of the Act, the word '' property '' is used in the more extended sense. I do

not think this argument is correct. Up till Section 63, the Act does not deal at all with any property belonging to a charitable institution. The object

of Section 63 is to preserve the powers of the Court of Wards in regard to religious endowments in respect of which the proprietor happens to

possess the character of a trustee and there is nothing to show that in other parts of the Act the word ''property'' is used in this extended sense, and

the words '' preservation of the property belonging to the institution, in Section 63 are very explicit and they cannot possibly refer to property

belonging to the proprietor in his individual right.

It is conceded that the Guardian and Wards Act cannot deal with property in which the ward has no beneficial interest, and that the effect of

Clause 4 of Section 59 is to incorporate by reference in the Court of Wards Act, all the provisions of the Guardians and Wards Act and make the

guardian subject to those provisions. But it is argued that he is subject to the said provisions not because they are found in the Guardians and

Wards Act but because they must be considered to have been in effect enacted in the Court of Wards Act and emphasis is laid upon the words ''

as if '' in Clause 4 of Section 59. The next step in the argument is that we must discard the limitation that the Guardian and Wards Act does not

affect what may be described as trust property and must seek for the definition of the word ""property ""in the sections of the Court of Wards Act

itself. This argument does not help the respondent because in my opinion on a construction of the sections of the latter Act the only property in

respect of which the appellant was appointed guardian was the property which belonged beneficially to the proprietor. The terms of the notification

also make the point clear: '' It is hereby notified that the Court of Wards has released from its superintendence the...property of the minor

proprietor...and...the following gentlemen whom the Court appointed as guardians of the person and property...have entered in their respective

duties.,... Guardian of the property of the minor proprietor M.R. Ry Varadachariar.

This leads me to the consideration of the second argument which was advanced on behalf of the respondent. It was said that, by the terms of

the appointment, the appellant undertook to be subject to the liabilities of a guardian under the Guardian and Wards Act and that the appellant

having been appointed on certain terms cannot now repudiate some of those terms. The argument has for its foundation the assumption that the

property in respect of which the appellant was appointed guardian was both non-trust and trust property and that the notification relates to both

species of property. As I have pointed out, this assumption is wrong, and if it is wrong, the argument looses all its force and it is therefore

unnecessary to consider the various cases quoted by Mr. A. Krishnaswami Aiyar in support of this argument. The appellant succeeds on a

technical point but we are only deciding that the proceeding that has been instituted for obtaining the relief is not the appropriate proceeding.

In the result I agree with the order proposed by my learned brother.