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Kamma Jogappa Vs. Bacham Hanumakka - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 664 of 1950 (C.R.P. No. 1524/48 converted into A.A.O.)
Judge
Reported inAIR1952Mad498; (1951)IIMLJ45
ActsGuaridians and Wards Act, 1890 - Sections 34, 35, 36, 43 and 47
AppellantKamma Jogappa
RespondentBacham Hanumakka
Appellant AdvocateA. Bhujanga Rao and ;D.R. Krishna Rao, Advs.
Respondent AdvocateE. Venkataramana Rao, Adv.
DispositionAppeal partly allowed
Cases ReferredHarikrishna v. Govindarajulu
Excerpt:
.....received by him is provided in sections 35 and 36. - - 273 that cases like this can be brought under section 43 though it might involve a strained construction of section 43. in this context the observations of the learned judges 'at page 277' of the report are apposite :if it is absolutely necessary to find this power somewhere within the four corners of the act, s......to be contested by suit or otherwise. 6. first, i will consider whether the order passed by the learned judge falls under any of the provisions of section 34 of the act. as i have already observed, the only relevant provision of section 34 is the one contained in clause (d). under clause (d) a guardian can be required to pay into court only such amounts as are shown to be the balance due on the accounts. this only means that a guardian can be called upon to bring into court amounts admittedly due from him. under that section ne cannot be called upon to produce such amounts as might be found due from him on a taking of correct accounts. the remedy against a guardi in who has not properly accounted for the amounts received by him is the one provided in sections 35 and 36 of the act......
Judgment:

Chandra Reddi, J.

1. By this petition, a person who was appointed the property guardian of a minor on 8-1-1942 in O. P. No. 72 of 1940, seeks to revise the order of the District Judge, Anantapur, dated 3-9-1948, calling upon him to bring some amounts said to belong to the estate of the minor into court. At the outset the counsel for the respondent, who is the mother and the personal guardian of the minor, has raised a preliminary objection to the maintainability of this revision petition. In order to get over this difficulty a petition has been died by Mr. Bhujanga Rao on behalf of the petitioner to convert the civil revision petition into a civil miscellaneous appeal under Section 43 of the Guardians and Wards Act.

2. In order to appreciate the preliminary objection and the contention raised in this petition it is necessary to set out briefly a few material facts. By the order of appointment the petitioner was directed to file accounts for each year on or before the fifth day of July, and not to invest any amounts belonging to the estate of the minor in any concern without the sanction of the court. In pursuance of those directions the petitioner was filing accounts every year before the 5th of July, and they were being scrutinised and passed up to the end of 1946. In July 1947 the District Judge, as a result of scrutiny of the accounts filed by the petitioner, passed certain remarks and called upon the petitioner to offer an explanation in respect thereof. Accordingly the petitioner filed a memo giving explanation on all the matters referred to in those remarks. It is not in evidence as to what happened to that memo. Ultimately the District Judge framed charges against the petitioner, and some of the items involved in the order under revision were also the subject-matter of those charges. An explanation was offered by the petitioner, but without considering it, the District Judge removed the petitioner on 24-2-1948 and directed him to hand over charge of the estate to the Official Receiver, who was appointed as property guardian in his place.

3. As against the order dismissing him, the petitioner preferred C. M. A. No 160 of 1948 which was ultimately dismissed by a Bench of this Court. Subsequently he handed over charge to the Official Receiver as directed by the order of his removal. On 13-7-1948 the petitioner was required to appear in court with account books. Pursuant to this notice he appeared in court and filed a memo stating that accounts had already been filed into court. Notwithstanding this, the petitioner was called upon to show cause why he should not be fined for disobeying the previous order of the court calling upon him to file accounts into court, and ultimately he was fined in a sum of Rs. 25 in spite of his explanation. Subsequently, that is, on 13-8-1948, the petitioner was required to submit a list of debtors to the estate, which direction was complied with by him. On 3-9-1948 the order under revision was made by the learned District Judge calling upon him to bring into court the various amounts mentioned in that order. It is against that order that the present civil revision petition is filed.

4. In view of the application by Mr. Bhu-janga Rao for converting it into an appeal, which I am Inclined to allow for the reasons mentioned hereunder, it is unnecessary for me to consider the soundness of the preliminary objection.

5. In order to appreciate the questions arising in this case, it is necessary to refer to certain provisions of the Guardians and Wards Act. Section 34 provides :

'Where a guardian of the property of a ward has been appointed or declared by the court and such guardian is not the Collector, he shall,--

(a) if so required by the court, give a bond as nearly as may be in the prescribed form, to the Judge of the court to enure for the benefit of the Judge for the time being, with or without sureties, as may be prescribed, engaging duly to account for what he may receive in respect of the property of the ward;

(b) if so required by the court, deliver to the court within six months from the date of his appointment or declaration of the court or within such other time as the court directs, a statement of the immoveable property belonging to the ward, of the money and other moveable property which he has received on behalf of the ward up to the date of delivering the statement, and of the debts on that date to or from the ward;

(c) if so required by the court, exhibit his accounts in the court at such times and in such forms as the court from time to time directs;

(d) if so required by the court, pay into the court at such time as the court directs the balance due from him on these accounts, or so much thereof as the court directs: and

(e) apply for the maintenance, education and advancement of the ward and of such persons as are dependent on him, and for the celebration of ceremonies to which the ward or any of those persons may be a party, such portion of the income of the property of the ward as the court from time totime directs, and, if the court so directs the whole or any part of that property'.

The only relevant provision of Section 34 that applies to this case is one contained in Clause (d). Another section of the Act which has bearing on this case is Section 43, Sub-clause (1). It reads thus :

'The court may, on the application of any person interested or of its own motion, make an order regulating the conduct or proceedings of any guardian appointed or declared by the court'.

Section 47 provides for appeals against orders passed under certain sections of the Act, but Section 34 is not one such. Section 48 lays down that save as provided (or by Section 47 of the Act and Or 43 rule 1 C. P. C. the orders passed under this Act shall be anal and shall not be liable to be contested by suit or otherwise.

6. First, I will consider whether the order passed by the learned Judge falls under any of the provisions of Section 34 of the Act. As I have already observed, the only relevant provision of Section 34 is the one contained in Clause (d). Under Clause (d) a guardian can be required to pay into court only such amounts as are shown to be the balance due on the accounts. This only means that a guardian can be called upon to bring into court amounts admittedly due from him. Under that section ne cannot be called upon to produce such amounts as might be found due from him on a taking of correct accounts. The remedy against a guardi in who has not properly accounted for the amounts received by him is the one provided in Sections 35 and 36 of the Act. That this is the correct position is seen from the decision of Venkatasubba Rao and Madhavan Nair JJ. in 'Harikrishna Chettiar v. Govindarajulu Naicker', 50 M. L. J. 273.

7. In that case the property guardian was called upon to deposit into court a sum much larger than that admitted in the accounts. The question arose whether the court had jurisdiction to do so. The learned Judges, on a consideration of the relevant sections of the Act, came to the conclusion that the court had no jurisdiction to direct the guardian to bring into court any amount larger than that admitted in the accounts and held that such an order would be a nullity as having been made without jurisdiction. It was pointed out by them that If the property guardian was sought to be made liable for a larger amount than that admitted in the accounts, that could be decided only in a regular suit and could not be disposed of under Section 34(d) of the Act. To the same effect is the decision in 'Subbarami Reddi v. Pattabhirami Reddi, 51 M. L. J. 249, where Phillips and Madhavan Nair JJ., held that the court had no jurisdiction to hold an enquiry and ascertain what amounts were due by the guardian under Section 34 of the Act, and the remedy of a ward who wanted to get more than the amounts admitted in the accounts was to proceed by way of suit. So the order cannot be treated as one passed under Section 34 of the Act.

8. Then I have to consider whether this order can be treated as one falling under any other provision of the Guardians and Wards Act. It was pointed out In 'Harikrishna v. Govindarajulu', 50 M. L. J. 273 that cases like this can be brought under Section 43 though it might Involve a strained construction of Section 43. In this context the observations of the learned Judges 'at page 277' of the report are apposite :

'If it is absolutely necessary to find this power somewhere within the four corners of the Act, S. 43, by straining it somewhat, may be pressed into service. The first clause of that section reads thus :

'The court may on the application of any person interested or of its own motion make an order regulating the conduct or proceedings of any guardian appointed or declared by the court.' It may not be quite the right thing to say that an order of the kind under discussion is 'an order regulating the conduct of proceedings' of a guardian. But it is only by construing these words in this rather wide sense, that we can find justification in the Act for the view that has been uniformly adopted in the cases cited to us, that such an order as this is within the competency of a court acting under the Guardians and Wards Act. There is, however, this much to be said lor this view, that the order in that case is not final but is appealable. The preliminary objection thus fails'.

The learned Judges in that case, though not without considerable hesitation, treated the order as one falling under Section 43 of the Act, which is appealable under Section 47 of the Act. I express my respectful agreement with the observations made by the learned Judges in that case. For the same reasons given by the learned Judges in that case for treating it as proceedings under Section 43 of the Act, I consider the order under revision as one passed under Section 43 of the Guardians and Wards Act and hold that an appeal lies against that order under Section 47 of the Act.

9. Now dealing with the merits of the case, this is a case which calls for interference with the order of the lower court. It is scarcely necessary for me to state that some of the directions contained therein are perverse. (His Lordship then modified the directions given by the lower Court and concluded : ) The appeal is allowed to the extent indicated above. In other respects, the appeal is dismissed. Each party will bear his own costs.


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