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Sarju and ors. Vs. District Judge of Benares - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad
Decided On
Judge
Reported in(1909)ILR31All378; 2Ind.Cas.356
AppellantSarju and ors.
RespondentDistrict Judge of Benares
Excerpt:
guardians and wards act (viii of 1890) section 29 - civil procedure code (act xiv of 1882), section 305--application by guardian for permission to murtgage miner's property--district judge bound to entertain such application. - - he apparently referred to the provisions of section 305 of the code of civil procedure, 1882. we are of opinion that even if section 305 of act xiv of 1882 applied to a case like this and even if the court executing the decree granted time to the judgment-debtors to raise money by......guardian of the minors who had obtained a certificate of guardianship made an application to the district judge, under section 29 of the guardian and wards' act (viii of 1890), for permission to mortgage the property of the minors for rs. 800, the value of the property being alleged to be rs. 1,600. the learned judge refused to entertain the application on the ground that permission to mortgage should have been first obtained from the court executing the decree. he was of opinion that unless the court executing the decree gave permission to the applicant to raise the amount of the mortgage decree by private sale or mortgage, the learned district judge had no power to allow him to deal with the property. he apparently referred to the provisions of section 305 of the code of civil.....
Judgment:

Banerji and Tudball, JJ.

1. This is an appeal from an order refusing to grant permission, under Section 29 of the Guardian and Wards' Act, to guardian to mortgage the property of his wards, It appears that a decree was obtained against the minors on a mortgage executed by their father. The guardian of the minors who had obtained a certificate of guardianship made an application to the District Judge, under Section 29 of the Guardian and Wards' Act (VIII of 1890), for permission to mortgage the property of the minors for RS. 800, the value of the property being alleged to be Rs. 1,600. The learned Judge refused to entertain the application on the ground that permission to mortgage should have been first obtained from the court executing the decree. He was of opinion that unless the Court executing the decree gave permission to the applicant to raise the amount of the mortgage decree by private sale or mortgage, the learned District Judge had no power to allow him to deal with the property. He apparently referred to the provisions of Section 305 of the Code of Civil Procedure, 1882. We are of opinion that even if Section 305 of Act XIV of 1882 applied to a case like this and even if the court executing the decree granted time to the judgment-debtors to raise money by. private alienation of the property ordered to be Sold, it would still be necessary for the guardian of minor judgment-debtors to obtain the permission of the District Judge, under Section 29 of Act VIII of 1890, to make a sale or mortgage of the property. That section forbids the guardian to mortgage or charge the immoveable proper by of his ward without the previous permission of the District Judge. Therefore, in any case, if the guardian sought to mortgage the property of his ward, the permission of the District Judge was absolutely necessary. As such permission was asked for, the learned District Judge ought to have proceeded under Section 29 of Act No. VIII of 1890, to decide whether or not he would grant it. We think the learned Judge was wrong in refusing to entertain the application of the guardian. We accordingly allow the appeal and setting aside the order of the court below send back the case to that court, with directions to restore the appellant's application to the file of pending cases and dispose of it according to law.


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