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Musammat Ashrafi Kuar Vs. Jai NaraIn and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in6Ind.Cas.862
AppellantMusammat Ashrafi Kuar
RespondentJai NaraIn and ors.
Excerpt:
.....the trustees had done things and were guilty of sins of commission and omission, which if they had been trustees in the proper sense of the term would have offended against the trusts act, it is argued, that it would be to the interest of the minor that a guardian of his property should be appointed. miju mal was a shrewd man of business and the document, though it may be a document prepared without legal assistance, is strong evidence that he had the interest of his grandson at heart, and was arranging for the looking after of that interest in the best manner known to him......as guardians of the person of the minor, kashi nath (us lee zatkiwali warafik bhi), musammat jarao kuar, and musammat ashrafi kuar. he further, in the same document, appointed lala jai narain, lala sheomukh rai apd one lala janki prasad, who is not a member of the family, to be the persons who would deal with the property of the minor. he describes them as persons who will (bataur trustee yard ameen intizam karte rahenge) manage the property as trustees. there are provisions which direct that in dealing with the property of the minor, they shall do so with the advice and assent of javao kuar and in case they differed, it is provided that the decision shall be according to the voice of the majority. apparently as long as jarao kuar was alive, no difficulties of any kind arose. she died on.....
Judgment:

1. The estate to which this appeal relates is the estate of one Phul Chand, a leading banker and merchant in the town of Hathras. In order to understand the matters in dispute, it will be necessary to remember that Phul Chand had four sons, who, it is admitted, lived separate. These sons were respectively Miju Mal, Matru Mal, Jai Narayan and Mittan Lal. Prom Miju Mal, whose wife was Musammat Jarao Knar, came Gillu Mal, who predeceased Miju Mal, but whose wife Ashrafi Kuar is still alive. The son of Gillu Mal and Ashrafi Kuar is Kashinath a minor. From Matru Mal came Lala Sheomukh Rai, one of the respondents to this appeal. Jai Narayan, the third son of Phul Chand, is also a respondent. Miju Mal on the 24th December 1904 executed a document which will be found on the record and which is described in the document itself as dastawez wasiatnama wagairah. In this document he recites the fact that Gillu Mal had predeceased him and he appointed as guardians of the person of the minor, Kashi Nath (us lee zatkiwali warafik bhi), Musammat Jarao Kuar, and Musammat Ashrafi Kuar. He further, in the same document, appointed Lala Jai Narain, Lala Sheomukh Rai apd one Lala Janki Prasad, who is not a member of the family, to be the persons who would deal with the property of the minor. He describes them as persons who will (bataur trustee yard ameen intizam karte rahenge) manage the property as trustees. There are provisions which direct that in dealing with the property of the minor, they shall do so with the advice and assent of JaVao Kuar and in case they differed, it is provided that the decision shall be according to the voice of the majority. Apparently as long as Jarao Kuar was alive, no difficulties of any kind arose. She died on 14th September 1907. On the 23rd January 1908, Musammat Asharfi Kuar presented an application in the Court of District Judge of Aligarh under Section 10 of Act VIII of 1890, in which she asked that she might be appointed the guardian both of the person and property of the minor. The reason she gave formovingthe Court was that since Miju Mal's death the trustees, as she termed them, had not prepared any accounts and had not properly supervised the property. She alleged that their interests were adverse to the interest of the minor. The District Judge of Aligarh, on 12th March 1908, passed an order refusing her application to be appointed guardian of the property of the minor. At the very time of writing the order, the learned Judge says that the petitioner Asharfi Kuar came into Court with an application under Section 34 of the Act, asking for removal of the trustees accepting the position set up by them as guardians of the property. Musammat Ashrafi Kuar is here referring to an objection which the trustees raised to her petition. It does not appear that the trustees set themselves up as guardians of the property of the minor. In the petition of objection dated 18th February 1908, Lala Janki Prasad, one of them, spoke of himself as trustee and as acting on behalf of the other trustees. There is nothing in the deed (of which we have already made mention), executed by Miju Mal, from which it could be properly inferred that Miju Mal ever appointed them or intended to appbintthem as guardians of the property. The idea in his mind was that they should manage the property for the infant on the same lines as he had managed it in his life-time, with the advice and concurrence of Musammat Janao Kuar, The memorandum of appeal in this Court set out three grounds. The first is that the trustees had no locus standi to oppose the application of Musammat Asharfl Kuar. This point may be at once overruled. It is open to any one on behalf of a minor, and more particularly the persons who were appointed managers of the infant's estate by the grandfather in his life-time, to oppose the application of any one else, if they considered such appointment to be not for the benefit or welfare of the minor. Two of them, moreover, were near relatives of the infant. The third point was not pressed before us. So we leave that also out of consideration and the only point with which we are concerned is whether the appointment of Musammat Asharfi Kuar does not in any way interfere with the trust or the powers of the trustees and is essential in the interests of the minor, who is admittedly the cestui que trust. The learned Advocate for the appellant dwelt on this point at great length. He very rightly admitted that the proceedings were of a summary character and, therefore, any arguments based upon evidence taken in such proceedings could not be put forward with the same strength as if the case had been a regular trial between the parties, but he pointed out to the Court that the estate of the minor was a very large estate, embracing difficult and comlex systems of account and one in which it was essential that there should be some one to watch the interests of the minor. He drew attention to the fact that while the trustees were in actual possession, there still remained the beneficial interest of the minor and this interest called for careful watching. Under these circumstances, as the learned Judge has found upon the evidence before him that it was clearly shown that the trustees had done things and were guilty of sins of commission and omission, which if they had been trustees in the proper sense of the term would have offended against the Trusts Act, it is argued, that it would be to the interest of the minor that a guardian of his property should be appointed. We pressed the learned Advocate for any authority to show that when the estate of the minor was in the actual possession of trustees on the minor's behalf and the minor had not any interest (beyond the beneficial interest) in the property until he came fage, a guardian had been appointed. He could refer us to no authority. Looking at the Act, we have felt considerable doubts as to whether the Court has jurisdiction to appoint a guardian of property under such circumstances. The difficulty appears to us to be in principle much the same as that felt by Sir George Jessell, M.R. in In re The Marquis of Salisbury L.R. 20 Eq. 527 : 44 L.J. Ch. 541, wherein that very eminent Judge doubted whether the Court had any power of its own to appoint a guardian of the estate of an infant where the estate is not in possession, the jurisdiction existing for the sole purposes of taking care of an infant's present property. He adds: 'No authority has been produced for so holding and in the absence of authority, I shall not hold that the Court has any such jurisdiction.' We incline to the same view, more particularly in the present case where the arrangement, with which we are asked to interfere, was an arrangement made by Miju Mal for the welfare of his grandson. Miju Mal was a shrewd man of business and the document, though it may be a document prepared without legal assistance, is strong evidence that he had the interest of his grandson at heart, and was arranging for the looking after of that interest in the best manner known to him. We do not think that it would be for the welfare of the infant to appoint the applicant guardian of the infant's estate. There is ample power in the law for any act of irregularity that may be committed by trustees being rectified even by a minor, for he can always appeal to a Court to appoint a next friend to appear for him in any case which he may institute to challenge the action of the trustees. We, therefore, dismiss the appeal with costs, including in this Court fees on the higher scale.


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