1. This is an appeal by one Kanhaiya Lai, who was a minor till lately, to recover a sum of money from defendants 2 to 5 as the legal representatives of his late certificated guardian and from Mt. Mahdei, defendant 1, as the surety, and from Ramji Das, defendant 6, as the transferee of part of the property by Mt. Mahdei given by her as security for carrying out her engagements.
2. The Court of first instance dismissed the suit altogether. The lower appellate Court modified the decree of the Court below and held that defendants 2 to 5, the representatives of the deceased guardian, were liable and remanded the suit for determination of the amount of the liability. The order of the Court of first instance dismissing the suit as against defendant 1 and defendant 6 was upheld. In this Court it has been urged that defendant 1 and defendant 6 are also liable.
3. The Courts below have proceeded mainly on two matters. The first is the language of the surety bond given by defendant 1, and secondly on the view that the liability of defendant 1 could not be fixed till the District Judge had adjudicated upon that liability and found that a particular sum was due. In this Court Dr. Katju, the learned Counsel for respondent 1, has also urged that the order of the District Judge, dated 24th January 1924, is a complete answer to the claim.
4. We shall take the third point first because it is very simple. This order of 24th January 1924 is before us, and it shows that the amount of the liability determined thereby was the liability which was arrived at, on the face of the amount submitted by the guardian. The order begins with the following words : 'Amongst other irregularities which have been committed are the following:' The amount of Rs. 1,485 was found due on the guardian's own account and therefore in pursuance of the provision of Section 45, Guardian and Wards Act, the guardian was ordered to make good the sum on penalty of being sent to jail. This argument therefore does not hold good.
5. The second question is whether a previous order of the learned District Judge is necessary in law in order to fix the liability of the surety. We have been referred to Section 34, Guardians and Wards Act, and it has been urged that the District Judge must find what is the amount due from the surety before he can assign the bond to the minor or any guardian of his appointed by the District Judge.
6. We have not been able to find any authority for this proposition. Section 34, Clause (d), runs as follows:
If so required by the Court, pay into the Court at such time as the Court directs, the balance due from him on those accounts, or so much thereof as the Court directs.
7. Here the Court directs the guardian to pay such amount as may be due on the accounts submitted by the guardian himself, This view of ours is emphasized by Section 35. By this section the Court is authorized to assign the bond to some proper person who is to sue the guardian or the surety to realize the amount that may be due. If the Judge's decision is to be final, or if not final and if it is subject to an appeal to the High Court, a fresh campaign in the shape of a suit would be entirely uncalled for. We are, therefore of opinion that an order by the District Judge fixing the liability of the surety was not called for. We may mention here that within the four corners of the Guardians and Wards Act there is no provision for the surety being a party to any proceeding in which accounts may be taken, and there is no provision by which the surety can appeal against the District Judge's order fixing his liability.
8. As regards the construction of the surety bond we are of opinion that the construction contended for cannot hold good. Stress has been laid on the words 'bahu kum apne.' Para. 2 of the bond which has to be considered by us has been quoted at length by the learned Subordinate Judge in his judgment at p. 18 and we need not quote those words again. Suffice it to say that in our opinion no special significance can be attached to the words 'bahukum apne.' The District Judge is a party to the bond and the liability of the surety is to the District Judge. We do not think that it was in contemplation of the parties, namely the District Judge on the one hand and the surety on the other that the District Judge's decision as to the amount should be final as between the parties. The words were added only as being calculated to add to the dignity of the Court 'and they have no other significance.
9. In the result we are of opinion that the liability of defendant 1 and defendant 6 does exist, and it is to be adjudicated upon by the Court of first instance. Before we conclude, we may point out that by the deed of assignment the learned District Judge of Benares clearly signifies his opinion that something was payable by the guardian to the minor and therefore he was executing the deed of assignment in favour of the minor.
10. We modify the decree of the Court below and remand the suit to the Court of first instance for trial in its entirety. Costs here and hitherto will abide the result.
11. The cross-objection is dismissed. Costs to abide the result as already ordered.