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Bathina Subbarami Reddi Vs. Ganesam Pattabhirama Reddi - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported in97Ind.Cas.578; (1926)51MLJ249
AppellantBathina Subbarami Reddi
RespondentGanesam Pattabhirama Reddi
Cases ReferredRama Rao v. Rengaswami Rao
Excerpt:
- - if the court is satisfied on a perusal of the accounts and on hearing the parties that the accounts are correct it may make such a declaration, but it is not bound to do so, nor is it bound to certify that the accounts are correct. this section quite clearly assumes that a guardian will put in the accounts that he has been directed to keep into court and that these accounts will be accepted subject to the minor's rights, or those of a next friend on his behalf to question them in proper proceedings......the late minor, that this order is wrong and that under section 41(4) the court ought to have held an enquiry and discharged the guardian after ascertaining what was due from him. there is no specific provision in the act for such taking of accounts and determining the amount due by the guardian, but it is contended that in view of the fact that section 41(4) says, 'the court may declare him to be discharged from his liabilities,' etc., this can only be done after an enquiry has been held, but it must be observed that there is no mandate in this section and it is not necessary that the court should make such a declaration. undoubtedly, if it were incumbent on the court to make such a declaration, the court would not be able to do so without holding an enquiry. it has been held by.....
Judgment:

Phillips, J.

1. This is a petition, under the Guardians and Wards Act.The minor having attained majority, the guardian was discharged and filed his accounts in Court. The minor took objection to these accounts and wished the Court to hold an enquiry and ascertain what amount was really due by the guardian. The District Judge has declined to hold any enquiry and has referred the minor to a suit if so advised. It is now contended for the petitioner, the late minor, that this order is wrong and that under Section 41(4) the Court ought to have held an enquiry and discharged the guardian after ascertaining what was due from him. There is no specific provision in the Act for such taking of accounts and determining the amount due by the guardian, but it is contended that in view of the fact that Section 41(4) says, 'the Court may declare him to be discharged from his liabilities,' etc., this can only be done after an enquiry has been held, but it must be observed that there is no mandate in this section and it is not necessary that the Court should make such a declaration. Undoubtedly, if it were incumbent on the Court to make such a declaration, the Court would not be able to do so without holding an enquiry. It has been held by the Calcutta High Court in three cases Nabu Bepari v. Sheikh Mahomed (1900) 5 C W N 207, Jagannath Panja v. Mahesh Chandra Pal (1916) 21 C W N 688 and Abdul tiasim v. Maleka Khatun (1916) 29 C L J 44, that under the Guardians and Wards Act no such enquiry should be held. The Allahabad High Court has taken a contrary view in Sita Ram v. Musammat Govindi I.L.R.(1921) A 458 and there is also the opinion of a Judge of this Court in Rama Rao v. Rengaswami Rao (1924) 92 I C 98 to the effect that the Court ought to take an account. To deal with this last case first, the learned Judge seems to have come to this conclusion on the ground that he was unable 'to concede that the Court is bound to accept without scrutiny any accounts that the guardian chooses to submit.' This will certainly be applicable if the Court were bound to make the declaration mentioned in Section 41(4), but if the Court is not so bound, it does not seem necessary that there should be such an enquiry. If the Court is satisfied on a perusal of the accounts and on hearing the parties that the accounts are correct it may make such a declaration, but it is not bound to do so, nor is it bound to certify that the accounts are correct. The whole scheme of the Act seems to provide for matters of this kind, i. e. disputes between the minor and the guardian, by way of suit. During the minority Sections 35 and 36 provide for suits being filed by a next friend of the minor in case of misconduct on the part of the guardian, and there can be no doubt that, when the minor attains majority, he can bring a suit against his guardian. There being no provision at all for any enquiry into accounts by the Court I think the opinion expressed by the Calcutta High Court is the correct one.

2. This view obtains support from Section 34(c) and (d) where it is provided that the guardian must exhibit his accounts in the Court at such times and in such form as the Court from time to time directs and that if so required by the Court the guardian must pay into Court the balance due from him on those accounts, or so much thereof as the Court directs. These provisions presume that the accounts are correctly submitted and the Court may take action on such accounts, but no provision is made for an enquiry as to whether the accounts are correct or not. Similarly, under Section 41(3) when a guardian has been finally discharged, the Court may require him to deliver 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. This section quite clearly assumes that a guardian will put in the accounts that he has been directed to keep into Court and that these accounts will be accepted subject to the minor's rights, or those of a next friend on his behalf to question them in proper proceedings. If the Court were to hold an enquiry and come to the conclusion that the guardian owed a much larger amount than that stated in his accounts, there is no provision for enforcing any such order. Further, such order under Sections 47 and 48 would be final; under Section 48 an order made under this Act shall be final and shall not be liable to be contested by suit or otherwise. If therefore the Court made an order that the guardian was to pay a definite sum into Court such an order could not be contested by a suit and there would be no remedy left either for the guardian or for his ward. This seems to be contrary to the intentions of the Act, which as I have said before appear to leave all these questions for decision by a suit outside the guardianship proceedings. The interests of the minor are sufficiently protected firstly by the selection of a guardian by the Court and secondly by the control of the Court over such guardian. With all respect I am unable to agree in the conclusion of the Allahabad High Court for I do not think the arguments are very convincing. I prefer to follow the opinion of the Calcutta High Court referred to above and hold that the Court should not hold an enquiry and pass orders in such matters.

3. The District Judge's order is therefore correct and this petition is dismissed with costs.

Madhavan Nair, J.

4. I entirely agree. The conclusion which we have arrived at in this case is also supported by the reasoning in CM.A. No. 269 of 1925 to which I was a party. In that case it was held that under Section 45: (1), Clause (c) a guardian is not expected to deliver 'property or accounts' which he has not actually got in his possession. In other words, it was held that the property to be delivered is the property which is actually in the possession of the guardian and not what he should have with him according to the opinion of the Court; and so also, the accounts to be delivered are those which have been actually kept by him and not those which according to the Court are the correct accounts. The phrase used in Section 41(4) 'when he has delivered the property or account' is the same as used in Section 45(1 )(c) and may be understood also in the same way.


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