1. This appeal raises various important questions with regard to the true interpretation of the Guardian and Wards Act, relating to the class of matters which had become the subject of controversy between this particular ward and his guardian, and also relating to the right of appeal. There being no express authority in this Court upon the subjects which have been raised before us we bold ourselves free to take an independent view of the intention of the Legislature while at the same time paying due regard to the decisions of the High Courts in other Provinces which have been relied upon in the argument on behalf of the guardian.
2. So far as the facts are concerned the matter is extremely simple. The controversy relates to the conduct of the guardian and the accounts filed by the guardian, when the minor was still a ward. The guardian is the adoptive mother of the ward. It appears that there is a substantial dispute as to the adoption but this for the purpose of this appeal is immaterial there being no question as to the adoption, while the minor was her ward and continued to be her ward until he reached his majority. The minor was possessed of certain property and the dealings by the guardian of the estate of the minor came from time to time before the District Judge. Substantially we are only concerned with two orders made by the District Judge, namely, one of the 4th of August of last year and a more or less consequential order, which is the one under appeal, made on the 11th of October 1923.
3. On the 4th of August certain accounts, which the guardian had been, no doubt, previously ordered to tile, came before the learned Judge for consideration. For the present it is only necessary to refer to three matters contained in these accounts. There was some question with regard to some moveable articles, which is not now before us at all. Secondly, there was a question with regard to certain expenditure on the minor's marriage; and thirdly, there was a question with regard to the expenditure by the guardian upon certain repairs to property; the two latter of course affecting the balance due from the guardian which she would be required to hand over upon the hypothesis that the items of expenditure which she had accounted for were approved by the learned Judge.
4. With regard to the marriage expenses the learned Judge took a very reasonable view. The guardian improperly proceeded with the marriage and with the expenditure therefor without obtaining the necessary sanction of the Judge. The Judge upon ex post facto material was satisfied that, in spite of the absence of the original sanction, that expenditure ought to be approved. Ho seems to have taken with regard to the repairs exactly the contrary view. In that case there had been no preliminary sanction and he comes to the conclusion (it is said that he did it without adequate material, that is a matter which we will deal with in a moment or two) that Rs. 900 alleged to have been expended by the guardian upon these repairs was not justified and ought to be made good. The logical consequence of that conclusion was--and according to our view it could have been ordered by the learned Judge, that the account should be amended and the balance payable by the guardian enhanced by the addition of the Rs. 900, the expenditure of which he refused to sanction. No formal order, however, of that kind appears to have been made, In October the matters came up again through an application by the minor who had then reached his majority and who objected to various acts of the guardian including the failure to replace or refund this sum of Rs. 900; and the learned Judge with regard to that latter item made the order which is now in question. It is convenient to quote the order as made. 'I agree with the objection that as no action can be taken under Section 45 with respect to the money, as this is not a sum in the hands of the guardian. It is only a matter which affects her discharge. It is difficult to follow that order. The learned Judge appears to hold that his powers are confined as regards action against the guardian to cases in which a sum of money is actually in the hands of the guardian. To take an extreme illustration of that view it would appear to apply to a contumacious guardian who deliberately throw a box of rupees amounting to half a lakh belonging to the minor into the Ganges, and would presumably prevent, if the learned Judge's view is right, any amelioration by the Court having jurisdiction under this Act against a guardian for a wicked act of that kind. That illustration seems to suggest that there must be something wrong in the reasoning. To say that the matter only affects the discharge would indefinitely postpone the decision and seems to lead to an impasse, because if the Court has no power to order the money to be refunded, the refusal of the discharge would have no effect except that it would leave the minor embarrassed in the only alternative remedy left to him, namely, a suit at law against the guardian to restore the money. It is obvious, therefore, that this contention put forward on behalf of the guardian, namely, that no action can be taken against him (or her) by the Court at all except with reference to actual property under his control or money in his hands, raises a very serious question of the interpretation of the Act. We are of opinion that the Act must be construed with due regard to the object intended to be attained by the Legislature. The object may be summarised as the protection of the helpless minor and the control of the guardian charged with looking after his estate. In order to exercise that jurisdiction this Court has been vested with disciplinary powers which experience has shown are more effective in nine cases out of ten than the ordinary enforcement of rights by the prosecution of a suit under which individuals, who are suijuris, are left by the Legislature for the determination of their dispute. For example, if the guardian is threatening to destroy or make away with property belonging to the minor and has not been called upon, possibly because of near relationship to give a bond at the commencement of his office of any substantial amount if the District Judge's view is correct, the Court has no power to call upon him to replace what he has wasted and to submit to punishment if he does not do so. The only remedy left is by an action at law, which may be indefinitely delayed by various obstructive moans and prove in the end to be infructuous. It seems, therefore be us that we ought not to cut down by narrow interpretation provisions which appear to have been made by the Legislature be enable this jurisdiction to be exercised unless there are plain indications in the Act which prohibit us from taking what may be described as the wider view.
5. Coming now be the point raised by this appeal the whole discussion really burns upon the true meaning to be given to the provisions contained in Section 34(c) and (d). It is useful to make this preliminary observation that the draftsman obviously intended these provisions to be read continuously as part of one proceeding. These Sub-sections provide that the guardian shall as and when required by the Court and in such form as the Court shall direct exhibit his accounts, and when required by the Court pay into Court the balance due on such accounts. The argument for the guardian is that the Court's power be direct payment of the balance is limited by such balance as the guardian chooses be show in the account which he exhibits. Indeed this argument is supported by the express language of more than one decision which has been cited to us from the reports of the High Court at Calcutta. It is not without significance that the cases cited are not to be found in the authorised Law Reports. We propose to deal with only one of them as illustrating the argument on behalf of the guardian, namely. Jagannath Pande v. Mahesh Chandra Pal 36 Ind. Cas. 286 : 21 C.W.N. 688 : 25 C.L.J. 149 which carries with it the authority of the well known Judge Sir Asutosh Mukerji and Mr. Cuming. They definitely held that in the case before them on the accounts exhibited under Section 34(c) the only order which the Court was competent to make was to call upon the guardian to bring into Court the sum so shown. We think that the learned Judges could hardly have realised the logical consequence of so holding. The word 'account' used in this connection must mean a just and true account. It is inconceivable that the Legislature intended to enable the guardian to satisfy this duty under Section 34(c) by saying in the account, 'As to a sum of Rs. 2,000 I yesterday paid this away to an insistent creditor of mine to prevent my arrest and I am therefore unable to produce this sum of money and the balance duo from mo is 8 annas'. It is quite clear that it would be the duty of the Court on having such an account presented to it to strike out the sum of Rs. 2,000 paid away by the guardian for his own purpose, and to add it to the balance of 8 annas as shown by the guardian in the accounts, thereby making a balance due to the ward of Rs, 2,000-8-0. The Court may do it of course in one of two ways. Where the amount is a liquidated sum and clearly earmarked for a purpose it can amend the accounts by striking out the objectionable amount or it may reject the accounts on the ground that it is an untrue account of the guardian's liability and direct the guardian to submit a first account within a limited time. But it was never intended that it was not the duty of the Court, but the duty of the guardian, be decide what is the balance due on a true and just account. Then comes into play Sub-section (d) of the same section (Section 34) by which the Court directs the guardian to pay the balance. If this interpretation is correct and this procedure is adopted disciplinary action can be brought to bear on the guardian without the embarrassment from which the learned Judge seems to have suffered in this case, and without the Court being compelled be hold that its hands were tied because the balance directed to be paid was not a sum actually in the hands of the guardian. If the guardian fails be pay the balance found by the Court on a correct account he becomes contumacious and can be dealt with under Section 45. Sub-section (5) of Section 45, clearly contemplated that such penalties are applicable to the misconduct of the guardian either in failing to exhibit the accounts it would be the case of course if original accounts such as we have suggested by way of illustration being rejected he fails to file a true amended account or to pay into Court the balance due as founded by the court upon the basis of a true and just account. We think that this is the only common sense view of the matter and it is the only productive interpretation which can be put upon these provisions.
6. Reduced to its most concrete form the only formidable objection against this view which Dr. Katju in his argument was able to press upon us was that Sections 35 and 36 of the Act contemplate remedies by suit but these remedies are not really inconsistent; they may well subsist together. As one of us pointed out during the argument a foolish and obstinate guardian who chooses to go to prison and suffer the uncomfortable personal penalties would not thereby be relieved from his responsibility, and it is possible that those sections were merely a precautionary provision to prevent the argument that the disciplinary penalties under Section 45 were intended to make an end of the matter. It is important to observe that the legislature would have been guilty of a very short sighted View if it had really intended that the minor should be left to a remedy by a suit in the manner we have attempted to illustrate. He may be only five years old, The extent of the untruth of the account might be successfully hidden by the guardian from the Judge and until the minor reached some age of discretion when he was able to make discoveries which the Judge was not. In such a case it would be necessary, after the minor had discovered flagrant waste of this kind, to remove the guardian and to appoint another, and to direct the new guardian to take steps by way of suit on behalf of the minor for the recovery of the compensation due from the ex-guardian, who by the time a decree has been obtained might have disposed of any property which would make the decree of the least value to the minor. For these reasons we differ from the view which has been pressed upon us as the view hitherto taken in Calcutta, and we have less hesitation in doing so as we are not dealing here with a question of substantive law or of legal principle but merely of the true intention of the Legislature with regard to an administrative statute.
7. In conclusion we decide that the learned Judge was wrong. On the merits, if he was of opinion that the Rs. 900 was an amount in excess of what the guardian could rightly claim to have lawfully expended on repairs, he should have insisted upon fresh accounts correcting the balance due, and ordering her to pay such amount plus the Rs. 900 into Court. If he bad done so he would have been able under Section 45 to accede to the application of the minor unembarrassed by the difficulties which he felt in the order under appeal. It is however pointed out to us on behalf of the guardian that on the other hand in arriving at this amount the learned Judge, not appreciating according to our view the extent of his jurisdiction, did not go as carefully as he might have done into the question of the amount, that is to say by a summary order he accepted Rs. 900 as representing the liability of the guardian for unjustifiable expenditure whereas in truth and in fact, according to the contention on behalf of the guardian before us, that amount might, if the learned Judge took up the matter again, be to some extent modified. We therefore think it our duty, if we have the power to do it, to overrule both the orders in this case--namely, the orders of the 4th of August and of the 11th of October, and to send the matter back to the learned Judge to reconsider the position of the guardian as regards those repairs in the light of what we have said and in the light of such evidence and arguments as the guardian is able to produce to satisfy him that he ought to alter his decision as regards the amount; and having come to a fresh decision in the matter to order the guardian to pay the balance due and after giving her a reasonable time for payment of such amount if she is ordered to pay to exercise the powers given him under Section 45.
8. This brings us to the further legal difficulty raised by this appeal. Unfortunate as it may appear we are of opinion that Section 47 does not give a right of appeal against this order. It is not an order regulating the conduct of the guardian which is the only Clause which can be suggested as covering this case. It is rather an order inflicting a penalty upon a guardian for breach of an order. But in this particular case we hold that the learned Judge has failed to exercise the jurisdiction which was vested in him. One can understand his view if he consulted the Calcutta cases. Indeed the same view appears in at least one text book on the subject. But taking the view we do of the intention of the Act we come to the conclusion that he had jurisdiction to amend the account and direct payment of the balance due on the amended account and that ho failed to exercise this power and perform the duty cast upon him by the Act. The appeal is formally dismissed. We allow the revision, cancel the orders of the 4th of August and of the 11th of October and send the case back to the Court below for decision of the question of accounts having regard to our views expressed above. The applicant will get one sot of costs in this case including fees on the higher scale.