1. The question for determination in this case is whether the present suit is barred by reason of anything contained in Sections 35 and 36 of the Guardians and Wards Act (Act VIII of 1910).
2. On October 1st, 1900, Keshav the deceased husband of the plaintiff was left as the sole surviving male member of his family, and became owner of the family estate. Balaji, father of the defendants, who was Keshav's maternal grand-father, assumed the management, as Keshav was a minor, and on July 7th, 1902, he was appointed guardian of the minor's property under the Guardians and Wards Act by the District Court of Poona. He continued to act as guardian up to the death of Keshav in September 1906. After Keahav's death Balaji continued to manage the estate on behalf of the minor plaintiff and on June 26th, 1907, he was appointed guardian of the property by the District Court. Balaji died in July 1907.
3. In this suit the plaintiff prays for an account for the whole period during which Balaji was in charge of the .estate, viz., from October 1st 1900 to the date of his death. That as against Balaji she would be entitled to an account is not disputed: the sole question is whether she is bound to proceed under the special Act, or whether she haw also a remedy apart from that Act. It is necessary in the first place to distinguish as to the capacity in which Balaji was from time to time managing the property-
I. From October 1st, 1900, to July 17th, 1902, Balaji was not a guardian appointed by the Court.
II. From July 17th, 1902, up to Keshav's death in September 1906, he acted as the guardian of Keshav's property duly appointed by the Court, and it is to be observed that he, on July 21st, 1902, gave a bond as provided by Section 34(a) to duly account.
III. From the date of Keshav's death in September 1906 until his appointment as guardian of the minor plaintiff on June 26th, 1907, Balaji was again in charge, not as a guardian duly appointed by the Court but in his private capacity.
IV. From June 26th, 1907, until his death in July 1907, Balaji was in charge of the estate of the minor plaintiff as her guardian appointed by the Court. He gave no bond to account under Section 34(a).
4. In view of the finding of the lower appellate Court it is unnecessary to consider the period after Balaji's death, for it is found that one Godubai, and not the defendants, was in charge of the estate after that event.
5. It will be observed that the nature of Balaji's connection with this estate varies from time to time, and his liabilities must depend upon the capacity in which he acted in dealing with the property. That the same individual was in charge throughout is an accidental circumstance which must not be permitted to import confusion. During the first and third periods he was not a guardian appointed under the Act. In the first period there was no appointment and as to the third period; his powers as guardian ceased on the death of Keshav. So far as these periods are concerned it cannot be contended that the Guardians and Wards Act is any bar to the suit. As regards the second and fourth periods there is a further distinction. During the Second period he was the duly appointed guardian of the estate of Keshav, and had given an administration bond. During the fourth period he was the duly appointed guardian of the estate of the plaintiff and had given no such bond. The plaintiff as regards the fourth period is suing the representatives of her guardian. As regards the second period she is suing the representatives of the guardian of her late husband. Though apart from the special provisions of the Guardians and Wards Act she is entitled to sue for an account the distinction has to be kept in mind in considering how far the provisons of the Act may bar a suit. In the one case Section 35 of the Act may be applicable, in the other Section 36.
6. The effect of Section 37 of the Act clearly is that a suit will not lie against the guardian or his representatives to enforce any remedy, provided by Sections 35 and 36 save as provided in those sections. Section 35 contemplates (i) the assignment of the bond (ii) a suit on the bond to recover anything due; on a breach of the bond. Now the present suit is not based on the bond nor does it seek to enforce the bond, and it is not, therefore, (in my opinion) barred by Section 35. Section 36 deals with a suit instituted by a third person. For such a suit the leave of the Court is required, the object being undoubtedly to prevent guardians being improperly harassed by third persons. There is nothing in the section itself to bar a suit by the ward after the powers of the guardian have ceased, and a new guardian has been appointed, as is the case here. So far as I understand the object of the Legislature there is no reason for imputing to it any intention to bar a suit by a duly appointed guardian. In my opinion these sections must be construed strictly and should not be held to bar the right to sue unless that conclusion is unavoidable. I do not think that such a conclusion necessarily follows in this case. That a new guardian can maintain a suit against a previous guardian has been held by the Calcutta High Court in Kamiz Fatima v. Sajjad Hosain I. L. R (1906) 34 Cal. 211 though the arguments urged upon us here were not apparently advanced in that case. For the reasons which I have given those arguments do not appear to me to be valid.
7. In so far as the suit is against the representatives of the late guardian if it be established that property of the minor did go into the hands of the guardian, and thence into the hands of his representatives, there seems no sound reason why those representatives should not be liable to account. That is the effect of the lower appellate Court's order and that is, I think, a correct view. It is in consonance with the opinion expressed by the Calcutta High Court in Maharaj Bahadur Sing v. Basunta Kumar Roy (1913) 17 C. W. N. 695, which appears to me, speaking with due deference, a correct exposition of the law.
8. I would, therefore, confirm the order of the lower Court and dismiss this appeal with costs. The cross-objections will also be dismissed with costs.
9. I agree. I desire to add that we have considered the decision in Manmothonath Hose Muliick v. Basanto Kumar Bose Mullick I.L.R (1900) All. 323, relied upon by Mr. Gharpure in support of the appeal. It is based upon an earlier decision of the Court under Act XL of 1858, arid Section 41 of the Guardians and Wards Act of 1890. There is no reference to Section 37 of the Guardians and Wards Act in the judgment. With great deference to the learned Judges, I am unable to accept the view taken in that case. Section 37 saves all remedies open to a ward or his representative against his guardian which are not expressly provided in SK. 35 and 36. In view of this reservation I do not see how a suit like the present suit can be said to be barred unless it is shown to be a suit contemplated by either of these sections. I do not think that the present suit is one contemplated by Section 35 in any sense. As regards Section 36, after a careful consideration of the scope and terms of the section, I have come to the conclusion that the section does not apply to a suit filed by a guardian appointed under the Guardians and Wards Act on behalf of his ward against the legal representatives of a deceased guardian of the ward for accounts. As regards Section 41, it is true that the summary remedy contemplated by Sub-section (3) is open to such a guardian. But I do not see how the existence of that summary remedy can be a ground for excluding the ordinary remedy by way of suit. The Calcutta High Court has taken the same view in Kaniz Fatima v. Sajjad Hosain I.L.R (1906) Cal 211.
10. In the present case there is no order under Section 41, Sub-section (4), declaring the previous guardian to be discharged. Apparently the deceased guardian is said to have filed accounts in January 1907 in the District Court. It does not appear clearly as to what happened after the accounts were tiled. On the present record nothing is shown to have been done with reference to the accounts said to have been filed by Balaji in January 1907. It is common ground that there is no order of discharge under Section 41 (4).