1. This appeal is directed against an order made by the District Judge of Budaun on 4th March 1927, in Miscellaneous Case No. 34 of 1920.
2. In order to understand the matter which is in contention before us, it is necessary to say that the appellant here, Mt. Taskin Fatma, is a minor, the daughter of one Ghafur Baksh, deceased. She is now married to Qayum Baksh who after becoming her husband, was appointed by the District Judge of Budaun as the guardian of Taskin Fatma's person and property under the Guardians and Wards Act 8, 1890. Before Qayum Baksh married this minor girl her guardian in the Court of the District Judge was her uncle Sattar Baksh, and while Sattar Baksh was acting as guardian under the Court, he, with the consent of the District Judge, entered into certain arbitration proceedings in order to settle disputes between the sons of the deceased Ghafur Baksh and this girl Mt. Taskin Fatma, regarding the division of the property. Admittedly an award was passed and that award was subsequently made a rule of the Court.
3. In the month of August 1926, after Qayum Baksh had been appointed guardian of his wife, he presented a petition to the District Judge, asking for the Court's permission to institute a suit on behalf of his wife for the purpose of having the award and the decree, which had been passed set aside on the ground of fraud and collusion.
4. It is apparent from the record which is before us that Qayum Baksh behaved in the most indiscreet manner and incurred the displeasure of the District Judge for what we must admit to be very good reason. When the application was put before the learned Judge he directed its consideration to be postponed, because at the time he thought, that the husband of the girl and the other members of the family were angry with each other, and that if their anger were allowed to cool matters might be amicably arranged. He passed an order on 10th September 1926, postponing consideration of the application. Then, on 4th March 1927, he passed the order which is now under appeal. All that the order says is as follows:
It is sufficiently clear from the events subsequent to my order of 10th September 1926, and from the conduct of the applicant that the application was made mala fide. I dismiss it.
5. We understand the applicant mentioned in this order to be not the minor herself but the guardian Qayum Baksh. This order is attacked here on various grounds, and it is said that the application for leave to file a suit on behalf of his minor wife ought to have been allowed by the Court on the ground that it was for the interest of the lady that such a suit should be brought.
6. It appears to us that there is a misunderstanding about the nature of the proceedings in the Court below and of the effect of the order, which was passed by the Judge on 4th March 1927, and which is sought to be set aside by this appeal.
7. There are certain provisions of the Guardians and Wards Act, which lay down that a guardian is not allowed to do certain acts on behalf of his ward without the leave of the Court first obtained. But we are not aware of any provision of the Act which makes it necessary for a guardian appointed under the Act to ask for the Court's permission before he files a suit on behalf of his ward.
8. There is, of course, Section 33, which gives a guardian appointed by the Court the right to approach the Court and ask for its opinion, advice or direction on any present question respecting the management or administration of the property of his ward. Then the section goes on to say that the Court, if it thinks necessary, may cause notice of such an application to be served on all persons interested. Sub Section (3) declares that, if a guardian states in good faith the facts in his petition to the Court, and if he acts upon the opinion, advice or direction given by the Court, he shall be deemed, so far as regards his own responsibility, to have performed his duty as guardian in the subject-matter of the application. So far as the matter covered by Section 33 is concerned, if he has stated the facts to the Court in good faith, and if he acts upon the opinion, advice or direction given by the Court, be will not be held responsible thereafter on any claim to be made against him by his ward.
9. When this application was presented by the minor's guardian to the District Judge, no section was quoted under which the application purported to be made, but we have come to the conclusion that there could have been no other section except Section 33 under which such an application was entertainable. Section 43 of the Act has been mentioned with the suggestion that it may be supposed that the order made by Mr. Thurston on 4th March 1927, was an order under Section 43. If it was an order under Section 43, it would be appealable under Section 47. But we do not think that the order is one under Section 43. The application does not at all appear to have been under that section nor can we treat the order of Mr. Thurston as one regulating the conduct or proceedings of the guardian appointed or declared by the Court. The order, therefore, is not one under Section 43 and is not appealable. All that can be said is that it was passed apparently in a proceeding taken under Section 33, and that it must be taken that the Court was of opinion that the suit which the guardian proposed to file was a suit which should not be brought. That order will not prevent the guardian from bringing the suit, if he is so advised, but in brining the suit he acts at his own risk and will not be entitled to the indemnity which is conferred upon guardians acting with the advice of the Court under Sub-section 3, Section 33. Dr. Katju has undertaken on behalf of the guardian that any suit which he proposes to file is to be conducted at the expense of the guardian himself. We make a note of this undertaking and place it on record in order that it may bind the guardian in any future proceedings in which the question of indemnity for costs may arise. We must hold, therefore, that no appealable order was passed by the Court below. We, therefore, dismiss the appeal. We leave the parties to pay their own costs.