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R.S. Ramachandran and anr. Vs. R.G. Balasubramania Aiyar - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1938Mad347; (1938)1MLJ285
AppellantR.S. Ramachandran and anr.
RespondentR.G. Balasubramania Aiyar
Cases ReferredNabu Bepari v. Sheikh Mahomed
Excerpt:
- .....in december, 1931. on this event happening, the respondent filed a petition in the court of the district judge of tinnevelly asking that he be discharged from his guardianship. thereupon the petitioners filed two counter-petitions. in one they asked the court to assign the bond which had been executed as security for the respondent's stewardship and the other was for an order directing his accounts to be audited. the respondent's petition was granted, but the petitioners' applications were both dismissed. this court is now asked, in the exercise of its powers under section 115 of the code of civil procedure to set aside the order of the district judge discharging the respondent and his order refusing to direct the bond to be assigned to the first petitioner. no application has been.....
Judgment:

Alfred Henry Lionel Leach, C.J.

1. The petitioners are brothers and constituted an undivided Hindu family. The first petitioner became of age in December, 1931. The second petitioner was a minor when the proceedings out of which these petitions arise began. In 1925 the respondent was appointed guardian of the property of the petitioners. His appointment ceased on the first petitioner attaining majority in December, 1931. On this event happening, the respondent filed a petition in the Court of the District Judge of Tinnevelly asking that he be discharged from his guardianship. Thereupon the petitioners filed two counter-petitions. In one they asked the Court to assign the bond which had been executed as security for the respondent's stewardship and the other was for an order directing his accounts to be audited. The respondent's petition was granted, but the petitioners' applications were both dismissed. This Court is now asked, in the exercise of its powers under Section 115 of the Code of Civil Procedure to set aside the order of the District Judge discharging the respondent and his order refusing to direct the bond to be assigned to the first petitioner. No application has been filed against the order dismissing the petition asking for an audit.

2. The answer to the question before us depends on the construction to be placed on Section 41(4) of the Guardian and Wards Act, 1890. Sub-section (2) of that section states that the powers of a guardian of the property of a minor cease (a) by his death, removal or discharge; (b) by the Court of Wards assuming superintendence of the property of the ward; or (c) by the ward ceasing, to be a minor. Sub-section (3) says:

When for any cause the powers of a guardian cease, the Court may require him or, if he is dead, his representative to deliver as it directs any property in his possession or control belonging to the ward or any accounts in his possession or control relating to any past or present property of the ward.

3. Then comes Sub-section (4) which is worded as follows:

When he has delivered the property or accounts as required by the Court, the Court may declare him to be discharged from his liabilities save as regards any fraud which may subsequently be discovered.

4. It will be observed that a guardian of the property of a minor ceases to be the guardian immediately on the ward coming of age. On this event happening the Court may require the quondam guardian to deliver the property of the ward in his possession or control according to its direction and similarly require him to deliver the accounts which he has kept relating to past or present property of the ward. That is as far as the Court can go, both as regards the property and as regards the accounts. When the quondam guardian has complied with an order passed under Sub-section (3), the Court may in its discretion discharge him from his liability as guardian, save in respect of any fraud which may subsequently be discovered.

5. In this case it was alleged that the respondent had been guilty of mal-administration and an affidavit in support of this charge was filed. After considering this affidavit and giving it the weight which he considered it deserved, the learned District Judge came to the conclusion that the applications for the assignment of the bond and for an order directing an audit were frivolous and being of the opinion that the respondent was entitled to an order discharging him from liability granted his petition. It is said that in so doing the District Judge erred in law. It is argued that on a proper construction of Sub-section (4) the District Judge should, in view of the charge of mal-administration, have refused the respondent his discharge and should have assigned the bond to the first petitioner. This is reading into Sub-section (4) something which is not there. When the quondam guardian has complied with the directions of the Court under Sub-section (3), the Court has full discretion in the matter and can discharge him, if it thinks fit. The learned District Judge did think that the respondent was entitled to his discharge and accordingly granted it. In so doing he exercised a jurisdiction vested in him, and it is not open to the petitioners to say that this Court in the exercise of its revisional powers can interfere with the order.

6. In Subbarami Reddi v. Patiabhirama Reddi : (1926)51MLJ249 , a Division Bench of this Court, consisting of Phillips and Madhavan Nair, JJ., held that where a guardian has been discharged and has filed his accounts the Court cannot hold an inquiry under the Act into the correctness of the accounts and determine the amount or the property in respect of which the guardian is accountable. The correctness of this decision has not been challenged; nor do we think it can be challenged. The same view was taken by the Calcutta High Court in Nabu Bepari v. Sheikh Mahomed (1900) 5 C.W.N. 207. This being so, all that the Court which appointed the guardian can do when the minor has come of age is to discharge him or refuse to discharge him. In the latter case the minor will be left to pursue his remedies against the quondam guardian by way of a suit. The act provides no machinery by which an inquiry can be held under the Act once a guardian has ceased to function.

7. The proper course for a Court which has appointed a guardian of property to adopt on the minor coming of age is to refuse to grant a discharge if it appears that there is sufficient reason to keep open the question of the guardian's liability, and in this case to assign to the quondam minor the security bond. Similarly, if it considers that the guardian has acted properly throughout and no reasonable claim can be brought against him it should exercise the power which it has of discharging the guardian. In this case the learned District Judge has come to the conclusion that the respondent acted properly and has granted him discharge. Consequently the order is not open to question in revision proceedings.

8. The two petitions before us will be dismissed and the respondent will be granted costs on one petition.


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