Bishan Narain, J.
1. This is an appeal under Section 48 of the Guardians and Wards Act against an order of the Senior Subordinate Judge, Gurgaon, dated 31-5-1954, refusing to appoint a receiver and ordering the return of moveables which were taken in possession by the Court to the respondent. The following pedigree-table will be of assistance in understanding the nature of the present dispute:
Daman Singh Shri Krishna
| (died on 29-10-1947)
| = Mt. Maktul Kaur
| | | |
Kailash Chand Vijey Singh Kuldip Singh Moti Lal
2. On the death of Prabhu Dayal on 15-6-1952 disputes arose between Daman Singh and Mt. Maktul Kaur during the mutation proceedings before the revenue authorities when Daman Singh alleged that his real son Kuldip Singh had been adopted by Mt. Maktul Kaur and that as such he was entitled to succeed to one half of the property of Prabhu Dayal deceased, while Maktul Kaur denied the adoption set up by Daman Singh and claimed that she had a right to succeed to the property left by her father-in-law as the widow of his predeceased son Siri Krishan under the Hindu Women's Bight to Property Act 18 of 1937.
3. While proceedings were still going on before the revenue authorities, Daman Singh on 3-1-1953 applied under Section 12 of the Guardians and Wards Act for the appointment of a guardian of Kuldip Singh minor's person and property and it was stated in' the application 'inter alia' that the respondent was wasting minor's property and that as minor's person is in danger the applicant has put him in the custody of his maternal uncle in 'Mauza' Nangal Pathani. Then on 23-1-1953 he filed an application which appears to have been written on 2-1-1953 for the appointment of a receiver of minor's property. This application came up for 'ex parte' hearing on 2-2-1953 and the Senior Subordinate Judge Shri Mehr Singh, issued notice to the respondent for 21-2-1953 and directed Shri Dalip Singh Pleader to go to the spot as Local Commissioner, to prepare a list of the moveables of Prabhu Dayal deceased and then to hand over the property to a responsible 'sapurdar' and ordered him to make a report on or before 9-2-1953.
It is surprising that Shri Mehr Singh, Senior Subordinate Judge, did not consider it proper and expedient to issue notice to the respondent before appointing the Local Commissioner. Next day Daman Singh made another application and prayed that as Mt. Maktul Kaur will forcibly resist the Local Commissioner when he goes to her residence to take possession of the moveables, a strong police force should be placed at the disposal of the Local Commissioner. On 4-2-1953 the Senior Subordinate Judge issued notice to Shri Dalip Singh Pleader to act as Local Commissioner and also wrote a memorandum to the Superintendent of Police, Gurgaon, to make arrangements so that the Local Commissioner is not interfered with during the discharge of his duties.
Next day the Local Commissioner prepared list 'A' and delivered the properties to a 'sapurdar'. On 7-2-1953 Daman Singh again applied that Mt. Maktul Kaur with the assistance of her helpers did not permit the Local Commissioner to complete the list and prayed that the Local Commissioner should be ordered to complete it even if in the process he has to break open locks and doors of rooms. -- This prayer was also granted by the Senior Subordinate Judge and this drastic order was passed without giving any notice to Mt. Maktul Kaur and accordingly on 8-2-1953 lists 'B' and 'C' were prepared and the properties mentioned therein were handed over to 'sapurdars'.
On the next day, Mt. Maktul Kaur made an application to the Court that the property taken from her possession belongs to her and not to Kuldip Singh whose adoption she denied. She further alleged that she had been insulted and harassed at the time when the property was taken from her and prayed that it should be returned. Thereafter it appears that some other persons also claimed part of the moveables mentioned in the lists. The Court, went through the evidence and rejected these third persons' claim and it was not till 31-1-1954 that the application of Mt. Maktul Kaur for return of her goods was allowed and Daman Singh's application for appointment of a receiver was dismissed and the present appeal is directed against this order. It may be stated here that the main application for the appointment of a guardian is still pending in the guardianship Court.
4. The learned counsel for the appellant has argued that the widow is wasting minor's property and is asserting claim adverse to his interest and therefore minor's property should be safeguarded by appointing a receiver and in the alternative has urged that in any case the application for the appointment of a receiver cannot be dismissed during the pendency of a suit which has been filed by Mt. Maktul Kaur in civil Courts for a declaration that Kuldip Singh is not her adopted son and that she is an heir of Prabhu Dayal as the widow of his predeceased Son. It is clear from the appellant's own evidence that Mt. Maktul Kaur is in possession of part of the property left by Prabhu Dayal and that she is asserting her own title to it and is denying the adoption of the minor.
Therefore, the real dispute between the parties relates to the succession to the estate left by Prabhu Dayal. Now this dispute cannot be decided by the guardianship Court. There is no provision in the Guardians and Wards Act which authorises the guardianship Court to decide such a dispute and therefore it must be decided by the civil Court in the suit which has already been filed by Mt. Maktul Kaur. Before the rights of the parties are decided by the civil Court the minor has nothing more than a claim to the estate of the deceased and it is impossible at the present time to regard the property as belonging to him.
If the minor has no property then now receiver need be appointed to protect it. It is not possible to appoint a receiver in guardianship proceedings to protect the property when the person who is in possession of it denies the minor's claim to it. This difficulty compelled the learned counsel for the appellant to argue that the application should not be dismissed till the decision of the civil suit. I am, however, of the opinion that in the circumstances, of the present case it will not be just and convenient to deprive the widow of the dominion over the property which she claims belongs to her and that the trial Court rightly refused to appoint a receiver in this case.
5. The learned counsel then urged that the guardianship Court has already taken possession of the moveables under Section 12 of the Guardians and Wards Act and the only point that now requires decision is as to whom, if at all, it should be returned. According to him, there is a 'prima facie' evidence in favour of the adoption and therefore this property should be retained by the Court in the interest of the minor. The learned counsel for the respondent has raised a preliminary objection that this order is not appealable.
There is force in this argument as no order passed under Section 12(2) of the Guardians and Wards Act is appealable under Section 47 of the Act and obviously this order compelling a third party to hand over possession or returning such a property can be passed only under Section 12(2) unless it be said that it was passed in the exercise of inherent jurisdiction of the Court and in either case an appeal is not competent. It was held in -- 'Nathu Ram v. Mt. Karmon', 13 Ind Cas 326 (1) (Lah) (A), by Chevis J. that no appeal lies against an order of the guardianship Court deciding to compel a person in possession of a minor's property to hand it over to the guardian. I therefore hold that this portion of the order of the Senior Subordinate Judge is not appealable.
6. In any case, there is no substance in the argument of the learned counsel on the merits. It has been repeatedly laid down that there is no provision in the Guardians and Wards Act for adjudication of competing claims to the property if the person in possession denies the claim of the minor even if the Court is 'prima facie' satisfied with the tide of the minor. It is, therefore, obvious that as soon as the party in possession denies the title of the minor to the property the Court must stay its hands and leave the parties to seek their remedy in accordance with law and it has no jurisdiction to take possession of such a property. If the Court takes possession of such a property illegally then it is its duty to restore it to the person from whom it took possession.
In a case similar in facts with, the present case, the trial Court's order to the widow to file an inventory of all the moveables of the deceased's estate and to furnish security that she would not dispose of the property was set aside (vide -- 'Mt Pounchbai v. Dayaram', 2 Ind Cas 369 (Sind) (B). The principle laid down in -- 'Mt. Pounchbai's case (B)', has been accepted subsequently and I may only refer to -- 'Rajgopal Mudaliar v. Official Trustee, High Court, Madras', AIR 1952 Mad 79 (C); -- 'Chandrika Rai v. Shrikant Raf, AIR 1929 All 597 (1) (D) and -- 'Sheosaiansingh Ambersingh v. Gokulsingh Bisansingh', AIR 1949 Nag 130' (E).
It was then argued that in any case some of the properties mentioned in the lists were not taken from Mt. Maktul Kaur as admitted by her and therefore these properties should not have been restored to her. It is clear from the evidence and that was the appellant's case in the trial Court that the third parties are laying claims to the properties in the interest of the widow, and in any case these third parties are not dissatisfied with the order tinder appeal and have not made any claim before me. It is not open to the appellant to plead the cause of the third parties even when they are riot satisfied with the order passed by the trial Court.
7. For the reasons given above, I see no forcein this appeal and I dismiss it with costs.