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Gnanambal Ammal Vs. S. Vadivelu Pillai and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1934Mad207; (1934)66MLJ351
AppellantGnanambal Ammal
RespondentS. Vadivelu Pillai and ors.
Cases Referred(vide Latchnianan Chetty v. Ramanathan Chetty I.L.R.
Excerpt:
- - all the guardians stoutly opposed the petition, on the ground that the proposed investment is neither safe nor calculated to promote the best interests of the minor in view of the present economic depression in the country. the learned district judge made an investigation and came to the conclusion that the apprehension of the guardians was not well founded, and ordered the grant of the loan by according his sanction reserving the question of settlement of the details regarding the terms of the mortgage to another date......mortgage, though the security may be ample, is not, in our opinion, a prudent step, having regard to the heavy indebtedness of the petitioner and other circumstances, which reduce the chances of an easy recovery of the mortgage amount in cash to a negligible minimum. that being so, the sanction of this mortgage loan is one which we do not think fit to uphold.7. in the result, the appeal is allowed, and the application of the 1st respondent is dismissed. he will pay the costs of the appellant in this court.8. no orders are necessary on the civil revision petition.9. the typing charges will be included in costs.
Judgment:

Sundaram Chetty, J.

1. This Civil Miscellaneous Appeal has been preferred by Gnanambal Ammal, the mother of the minor Subbaraya Chetty, who was also appointed as the guardian of the person of the minor. By way of caution, a Civil Revision Petition is also filed. The order appealed against was passed by the District, Judge of South Arcot on a petition filed by S. Vadivelu Pillai (1st respondent) praying that a loan of Rs. 30,000 may be ordered to be given out of the minor's funds on a first mortgage of immoveable properties. The Court issued notices to the personal guardian, the outstandings guardian and the immoveable properties guardian of the minor in respect of that application. All the guardians stoutly opposed the petition, on the ground that the proposed investment is neither safe nor calculated to promote the best interests of the minor in view of the present economic depression in the country. The learned District Judge made an investigation and came to the conclusion that the apprehension of the guardians was not well founded, and ordered the grant of the loan by according his sanction reserving the question of settlement of the details regarding the terms of the mortgage to another date. Against this order, the present appeal and the revision petition have been filed by the personal guardian.

2. While the learned Advocate for the appellant wanted to urge a technical objection that a petition of this kind by a stranger desiring to secure a loan of the minor's money is not maintainable under Section 43 of the Guardian and Wards Act, he was met with a counter-objection, that this appeal itself is incompetent. Both sides have addressed elaborate arguments on these points, but, in our opinion, the real question arising in this case is in a narrow compass, and therefore we confine our remarks to it. The petition in question was filed by Vadivelu Pillai under Rule 21 of the Rules framed under the Act. When the objection that he had no locus standi was raised, he stated in his reply affidavit that his application was under Sections 32 and 43 of the Act. There is no doubt that the Court purported to act under Section 43 on this application, for it directed the issue of notices to all the guardians of the minor, as required by Sub-clause (3) of that section, with a view to hear their objections, before passing an order on the petition. Moreover, the order passed on the petition is substantially one coming within the purview of Sub-clause (1) of Section 43. An order sanctioning the loan and directing the issue of it is doubtless one to be carried out by the act of the outstandings guardian. In continuation of the said order passed on 30th August, 1933, an order was passed on 2nd September, 1933, directing that guardian to get the document drawn up. It means that he must receive the mortgage bond after its execution and registration and draw the sum and pay the consideration for the mortgage. That being so, the order is one regulating the conduct or proceedings of the guardian appointed by the Court, as contemplated in Section 43, against which an appeal lies to the High Court under Section 47, Clause (1) of the Act. It is argued by Mr. Krishnaswami Aiyar for the appellant that it is open to him in this appeal to show that the petitioner had no locus standi to make an application under Section 43, Clause (1), and the Lower Court was wrong in entertaining it and proceeding with its investigation, without dismissing it in limine. Though the application was not maintainable, the Court, however, purported to decide the question under Section 43(1) treating it as one under that section, and therefore the party against whom the order was passed would be entitled to appeal, and also raise the question of the competency of the petitioner to apply under that section (vide Latchnianan Chetty v. Ramanathan Chetty I.L.R. (1904) Mad. 127 : (1904) 14 M.L.T. 436).

3. According to Section 43(1) of the Act, the application has to be made by any person interested. This evidently means a person interested in the minor. But the petitioner can in no sense be deemed to be one interested in the minor. He is a stranger having no concern with the minor, either as a relation or as one occupying a fiduciary position. He has therefore no locus standi to file an application under that section. If every debtor who wants to get a loan from out of the funds of the ward is held to be competent to apply to the Court for an order directing the guardian to advance the loan, he should also have the right to appeal against the order, if it turns out to be adverse to him. The door will be open to persons in need of loans to file applications to the Court for sanctioning them. When a debtor cannot claim the grant of a loan as a matter of right, it stands to reason that he should have no remedy when the loan is denied to him. It seems to us that a petition of this kind by a debtor (in his interests) would not lie under Section 43(1).

4. An attempt was made by the learned Advocate for the 1st respondent to get over this difficulty by suggesting that the application in question may be treated merely as information furnished to the Court, so that it may of its own motion make the necessary order under Section 43(1). But the fact is otherwise. The 1st respondent was not content with merely supplying information, but made a specific prayer for an order in his favour. Nor did the Court purport to act suo motu in passing the order appealed against. This suggestion seems to be futile. Another ingenious argument was put forward to give a new turn to the whole proceedings. It is now urged that the order of the District Judge should be taken to be an administrative order, against which neither an appeal nor a revision petition lies. This suggestion is bereft of any foundation. When the petitioner himself stated that his application was under Sections 32 and 43 of the Act, and when the Court evidently purported to deal with it as such, how can it now be urged that the order was merely an administrative one? In the face of his own averment in his affidavit the petitioner is estopped from raising such contention now.

5. We are of opinion that the Lower Court should have dismissed this petition on the ground that the petitioner had no locus standi to present it under the aforesaid section.

6. Even on the merits, we think that the learned District Judge did not give due weight to the apprehension expressed by all the three guardians of the minor, which in view of the depression in the economic conditions of the country, cannot be slighted as chimerical. The minor has a large extent of landed property, whose proper management is a matter of much difficulty. Any compulsory augmentation to the immoveable property, which will be the case, if the petitioner should make default in payment of the mortgage debt, necessitating the purchase of the mortgaged lands by the decree-holder himself (the minor), is not at all desirable in his interests. The paucity of offers for the purchase of lands in these days of economic depression is a notorious fact. Investment of such a big sum in a single mortgage, though the security may be ample, is not, in our opinion, a prudent step, having regard to the heavy indebtedness of the petitioner and other circumstances, which reduce the chances of an easy recovery of the mortgage amount in cash to a negligible minimum. That being so, the sanction of this mortgage loan is one which we do not think fit to uphold.

7. In the result, the appeal is allowed, and the application of the 1st respondent is dismissed. He will pay the costs of the appellant in this Court.

8. No orders are necessary on the Civil Revision Petition.

9. The typing charges will be included in costs.


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