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Kanneganti Ramayya and anr. Vs. Kanneganti Tulasamma and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1936Mad868; 165Ind.Cas.276; (1936)71MLJ658
AppellantKanneganti Ramayya and anr.
RespondentKanneganti Tulasamma and anr.
Excerpt:
- - the reason given clearly shows that the discharge must have been granted under clause 4 of section 41 of the act. the learned district judge however failed to see that if the amendment was to be allowed the question of any finding about the maintainability of the suit would have been unnecessary for if the plaintiff is properly amended it cannot be denied that the suit would be maintainable if framed as one for recovery of the specific sum of money lost by the plaintiff as the result of the fraud of her guardian the first defendant while managing her estate......41, sub-clause 4 of the guardian and wards act, did not prevent the plaintiff from instituting a suit for accounts against the guardian. the present appeal is from the order of the district judge in appeal and it is preferred by defendants 1 and 2.3. the only point for determination in this appeal is whether the suit as framed is maintainable. the suit is for taking accounts and it is contended that, as the suit is one instituted against the guardian appointed under the guardian and wards act and the guardian had been discharged under section 41(4) of that act, no suit will lie for merely taking accounts. clause 4 of section 41 is to the following effect:when he (i.e., the guardian) has delivered the property or accounts as required by the court the court may declare him to be.....
Judgment:

Pandrang Row, J.

1. This is an appeal from the order of the District Judge of Guntur dated 20th October, 1934, allowing an appeal from the decree of the District Munsif of Tenali dated 15th February, 1934, in O.S. No. 9 of 1933 and remanding the suit for disposal to the District Munsif, after recording a finding to the effect that the suit is maintainable. The suit was one for settlement of accounts in respect of the management of the plaintiff's property during her minority by the first defendant who had been appointed guardian of her property by the District Court in 1925 for the years 1925 to 1928. It was alleged in the plaint that the first defendant had not filed proper accounts in the District Court or rendered accounts to the plaintiff's mother who was appointed guardian of the plaintiff's estate in 1928 after the first defendant was removed from the guardianship by consent.

2. The second defendant was impleaded as he is the minor son of the first defendant, but he is not personally liable in respect of the suit claim and apparently he was impleaded merely to obtain a decree binding on him with reference to the relief claimed by the plaintiff for a first charge on certain properties belonging to the first defendant. Defendants 1 and 2 contended that the suit is not maintainable and that the first defendant had filed proper accounts in the District Court which had been approved by the District Court and thereafter discharged him from the guardianship. It was also contended that nothing was due to the plaintiff by these defendants. The suit was dismissed by the trial Court on the preliminary ground that the suit was not maintainable. The other issues were not decided by the trial Court, which found that the suit was not maintainable and dismissed it with costs after refusing an-application to amend the plaint made after the case was closed. The plaintiff appealed to the District Judge and in that appeal the District Judge held that the suit was maintainable. In his opinion the discharge of the guardian first defendant, though it might have been made under Section 41, Sub-clause 4 of the Guardian and Wards Act, did not prevent the plaintiff from instituting a suit for accounts against the guardian. The present appeal is from the order of the District Judge in appeal and it is preferred by defendants 1 and 2.

3. The only point for determination in this appeal is whether the suit as framed is maintainable. The suit is for taking accounts and it is contended that, as the suit is one instituted against the guardian appointed under the Guardian and Wards Act and the guardian had been discharged under Section 41(4) of that Act, no suit will lie for merely taking accounts. Clause 4 of Section 41 is to the following effect:

When he (i.e., the guardian) 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. Before dealing with this question, the contention newly put forward in this Court by the plaintiff-respondent's Advocate has to be considered, namely, that the discharge of the guardian by the District Judge in 1928 was not made under Clause 4 of Section 41 of the Act. It is not stated under what other section of that Act the order can be said to have been passed. There was an application made by the plaintiff's mother under Section 39 of the Act for removal of the first defendant from guardianship and to appoint the mother as the guardian of the property of the minor. On this petition it was ordered that the guardian was to be discharged from his guardianship as he had furnished proper accounts which were checked and found correct by this Court. The reason given clearly shows that the discharge must have been granted under Clause 4 of Section 41 of the Act. Both the Courts below have proceeded on the basis that the discharge was made under Clause 4 of Section 41. What they differed about was the legal effect of such an order of discharge made under Clause 4 of Section 41. I am of opinion that the order must be deemed to have been made under Clause 4 of Section 41, and the only further question that remains is, what is the legal effect of such an order. As Clause 4 says, the discharge is from the guardian's liabilities save as regards any fraud which may subsequently be discovered. It has been urged that the liability referred to in this clause must be confined to liabilities to which he is made subject by the Guardian and Wards Act and not to all his liabilities under the general law to render an account of his management to the minor. I am of opinion that this argument cannot be accepted. The word used is general, namely, liabilities, and the clause must therefore be regarded as discharging him from all his liabilities as guardian except in respect of any frauds committed by him. Apart from this consideration, there is in this case no particular reason why the plaintiff should be permitted to frame her suit in the way in which she has done, i.e., by asking that an account should be taken of the management, when an account has already been submitted by the guardian to the Court and that account was and is available to the plaintiff. I may add in this connection that the account was filed also along with the written statement in this suit by defendants 1 and 2. The account was filed in the District Court long before the suit was filed and it was available to the plaintiff before she filed the plaint. There is no purpose served in the Court being asked to pass a preliminary decree for taking an account when the account is already before the Court and was available to the plaintiff even before she filed the suit. The plaintiff's grievance, if any, is that the account is not true and that there are false entries in it and that she should be reimbursed the loss caused to her as a result of the fraud played by the guardian upon her in the management of the estate. The plaint should therefore have been framed as one for falsifying or surcharging the account already rendered by the guardian and not merely for taking an account. The plaint appears to have been framed in the way it has been done merely in order to escape payment of Court-fee on the full amount which the plaintiff thinks she is entitled to get and to enable her to institute proceedings on paying such Court-fee as she thinks proper by valuing the relief as she thinks fit. I do not think such an attitude should be encouraged. It will be seen that the plaintiff herself at a late stage applied to the trial Court for amending her plaint for the purpose of introducing allegations of fraud. No doubt this application for amendment was dismissed by the trial Court, but it has been allowed by the District Court. The learned District Judge however failed to see that if the amendment was to be allowed the question of any finding about the maintainability of the suit would have been unnecessary for if the plaintiff is properly amended it cannot be denied that the suit would be maintainable if framed as one for recovery of the specific sum of money lost by the plaintiff as the result of the fraud of her guardian the first defendant while managing her estate. In this Court also an oral application has been made at a late stage of the argument to allow the plaintiff to amend her plaint by introducing specific allegations of fraud and entering full particulars or details of the fraud, that is to say, by 'pointing out the particular entries in the accounts which are not true and by pointing out omissions in the account also. I think in the circumstances the application for amendment o f the plaint ought to be allowed, though subject to terms with regard to costs. The application for amendment already made and which appears to have been allowed by the District Judge would not be enough as it does not contain the necessary particulars or details about the fraud alleged. The plaintiff will therefore be given an opportunity of filing a further application for amendment of his plaint containing full particulars or details of the fraud alleged by her and specifying the amount of money which she claims in the circumstances. If the plaintiff makes the above application for amendment within 14 days after the reopening of the District Munsif's Court of Tenali after the summer recess and after paying such additional Court-fee as may be necessary and also after depositing within the same time the costs of the defendants 1 and 2 in this Court (for this purpose their costs in this Court may be taken to be Rs. 40) and in the lower appellate Court for payment to defendants 1 and 2 irrespective of the result of the suit, the order of the District Judge remanding the suit for fresh disposal will stand. If the plaintiff fails to do this within the time allowed, the appeal must be deemed to have been allowed, and the suit shall stand dismissed with costs in all the three Courts.


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