J.K. Tandon, J.
1. This is an appeal under the Guardians and Wards Act against an order of the learned District Judge, Lucknow, dated 17-5-1958, by which he imposed a fine of Rs. 10/- per day till such time as the security in the sum of Rupees 30,000/- was filed by the guardian. The facts giving rise to the proceedings out of which the present appeal arose are thus.
2. The applicant who is the elder brother of opposite party Samiullah was appointed guardian of the property of the latter by an order of the District Judge dated 18-3-1950. An application was made by the mother of Samiullah on 27-8-1957, asking that the guardian may be required to deposit the amount of Rs. 27,000/- which was due to the minor from the firm Haji Khuda Bakhsh Haji Faqir Bakhsh also a further sum of Rs. 1,500/- said to have been realised from the income-tax authorities on his behalf.
This application purported to be under Section 43 of the Guardians and Wards Act. The appellant to whom notice was Issued on the said application filed a reply on 21-9-1957, denying that any sum of Rs. 1,500 had been realised for the minor from the income-tax authorities. With regard to the sum of Rs. 27,000/- he stated that the same was invested in the firm Haji Khuda Bakhsh Haji Faqir Bakhsh. The same day the learned District Judge decided the application of the mother. The relevant portion of his order is thus:
'The guardian will also clearly state what has been the profit in this concern since his appointment in March, 1950, what amounts have been paid to each of the co-sharers and what amount, if any remains unpaid to the minor on account of his share. All the compliance may be made by October 7, 1957. The case will come up on 12-10-1957 for further orders. Orders dictated in the presence of the learned counsel for the parties.'
In pursuance of the above order the guardian admittedly filed an account in which he pointed out that the sum of Rs. 27,000/- was in the hands of the Mutawalli but further said that in case the Muta-walli was forced to pay the amount immediately the business in which' it was invested and which was die main property of the waqf would be paralysed. It seems that the minor is one of the beneficiaries of the waqf of which, the firm Haji Khuda Bakhsh Haji Faqir Bakhsh is also one of the properties. The minor as a beneficiary gets a portion out of the profits of the business after defraying the other charges. The stand taken by the appellant, therefore, was that the amount of Rs. '27,000/-which no doubt was due to the minor from the firm was still in the hands of the firm, i. e. the same had not been received by him.
3. On the accounts thus furnished by the guardian the learned District Judge made an order on 12-10-1957 recording his disinclination to invest the funds belonging to the minor in the business of the firm unless sufficient security was forthcoming. After thus recording his views he directed that ''the guardian must withdraw the investment and deposit the money in Court.'
On 26-10-1957 the above order was repeated giving a month's time to the guardian to deposit the amount. Admittedly the guardian failed to make the deposit whereupon the order under appeal was passed on 17-5-1958 imposing a fine of Rs. 10/-per day till such time as security in the sum of Rs. 30,000/- was filed.
4. The order of the learned District Judge was not for filing any security, much less a security in the sum of Rs. 30,000/- by the guardian. The reference in the order of 17-5-1958, that the fine shall continue to be chargeable till such time as security in the sum of Rs. 30,000/- is furnished is not relatable to any order by which security might have been demanded. How such a contingency was inserted in it is not clear. Apparently there was some misapprehension which resulted from the earlier observations contained in the order of the learned District. Judge dated 12-10-1957; but those observations remained in the realm of observations only because the guardian was never asked to furnish any security though he had been asked to deposit die money invested in the firm in Court.
5. Two aspects of the order under appeal have been urged before the Court one on behalf of the appellant and the other on behalf of the respondent. The former has identified the order to be one made under Sub-section (4) of Section 43 of the Act. For this contention he has relied on the citation contained in the application which tho mother of the minor presented to the District Judge and as a result of which the proceedings out of which this appeal has arisen commenced. This application was purported to be one made under section 43 of the Act. The latter in his turn has referred to Clause (b) of Section 45(1) of the Act which gave power to the District Judge to impose a daily fine in certain circumstances, It will thus be necessary to see whether the order appealed against can be said to have been made under one or the other provision of the Act and further whether the District Judge was right in making the order.
6. Sub-section (4) of section 43 provides the penalty to which a guardian may be subject if he is found guilty of disobedience of an order made under Sub-section (1) or Sub-section (2) of that section. Sub-section (2) is clearly inapplicable as it makes provision for cases where there are two or more guardians of any ward. In the instant case one guardian only had been appointed. Sub-section (1) gives power to the court to make an order regulating the conduct or proceedings of any guardian appointed or declared by the court. The contention is that in view of the order of the court requiring the guardian to deposit the money in court after withdrawing it from the firm there was an order regulating his conduct or proceeding.
Failure on his part to realise the amount from the firm or to deposit it in Court resulted in disobedience of that order and he rendered himself liable to the penalty provided in Sub-section (4). Sub-section (4), in describing the penalty to which the guardian may be subjected has laid down that the order disobeyed by him may be enforced in the same manner as an injunction granted under Section 492 or 493 of the Code of Civil Procedure 1882. The corresponding provision in the present Code is Order 39 Rule 2. That is, where a guardian is held guilty of disobedience of an order of the Court he exposes himself to be proceeded against under Order 39 Rule 2.
This rule provides that in case of disobedience the Court may order the property of the person guilty of disobedience to be attached and may further order such person to be detained in civil prison for a term not exceeding six months. It does not authorise the imposition of any fine to continue to be levied day after day till obedience is forthcoming. Therefore, without going into the question whether the order passed by the District Judge could be held to be an order made under Sub-section (1) of Section 43 since the law does not authorise him to impose a recurring fine, as he nevertheless has done his order cannot be upheld.
7. Coming to the second aspect, Clause (b) of section 45(1) provides the conditions on the fulfilment of which the District Judge will be justified in imposing a fine to continue till such time as the default continues. There is, however, a maximum which cannot be exceeded in this manner but we are not concerned very much with that aspect in this case. Clause (b) is to the effect that if a guardian fails to deliver to the Court within the time allowed by the court under Clause (b) of Section 34 a statement required under that clause, or to exhibit accounts in compliance with a requisition under clause (c) of that section, or to pay into the court the balance due from him on those accounts in compliance with the requisition under Clause (d), of that section, a fine can be imposed upon him. Learned Counsel for the respondent does not claim that there was any default in the submission of any statement or the exhibiting of the accounts required of the guardian. He has founded his contention on the failure of the guardian to deposit the amount after realising the same from the firm.
8. It is true that the order of 12-10-1957, called upon the guardian to deposit the minor's share of the money in court. It again is true that the guardian, failed to make any such deposit. The question nevertheless remains whether the provisions of Clause (d) of section 34 were attracted on the above facts and was there a disobedience. Clause (d) of Section 34 authorises the court to require the guardian to pay at such time, as it may direct, the balance due from him on the accounts furnished by him under the earlier clauses of that section. It contemplates two things
(1) that there is a requisition for the submitting of accounts against the guardian; andp
(2) that, as a result of the scrutiny of accounts, he was held to be in possession of money due from him to the ward.
Unless the second condition also, which is essential for invoking the jurisdiction belonging to the court under Clause (d), is present, any order requiring him to make the deposit will itself be bad. In the present case it does not appear from any proceedings held by the District Judge that he ever came to the conclusion that a sum of money was due from the guardian to the ward. The most that he can be said to have found is that certain sums belonging to the ward were invested in the firm and the court was not in favour of the investment.
It therefore, called upon the guardian to withdraw the investment and deposit the money in court. There is no allegation that the guardian, indeed, withdrew the amount from the firm, much less that the amount is in his possession. He may or may not be guilty of not taking steps for withdrawing the investment from the firm -- a matter with which we are not concerned in the present appeal and for which his responsibility whatever it he under the law will remain unaffected -- he has no moneys belonging to the minor in his possession. He may be a partner in the firm and may be connected with the management also of its business; hut an order under Clause (d) of Section 34 will be justified only upon a finding that he is held of money belonging to the minor which, however has not been so held by the District Judge at any stage. The order appealed against cannot under the circumstances he supported under Clause (b) of Section 45(1) also.
9. These were the only grounds on which the order appealed against was sought to be justified. At the same time, it is clear that it is neither fortified by Sub-section (4) of Section 43 nor by the above provision in section 45.
10. The appeal is accordingly allowed. The order of the District Judge dated 17-5-1958, is set aside. The record shall he returned to the District Judge with direction to proceed to decide the application under section 43 finally in accordance with law. Considering every circumstance no order is made as to costs.