Rajagopala Ayyangar, J.
1. This revision petition raises for consideration the propriety of an order passed by the learned Subordinate Judge of Palghat in O. P. No. 33 of 1949.
2. The petitioner here is a guardian-receiver appointed by the Court for the estate of certain minors. Investigation by this guardian showed that the minors had certain claims against their step-mother. The guardian made a report to the Court in relation to these claims and he was directed by the learned Subordinate Judge to take legal advice and take such action as might be tendered by the lawyer.
In accordance with this direction, the guardian obtained legal advice and submitted a copy of this opinion to the Court and after stating the facts giving rise to the claim filed an application brfore the Court under Section 33, Guardians and Wards Act (8 of 1890) seeking the Court's opinion, advice or direction regarding the filing of a suit against the respondent.
Notice of this application was given to the respondent who is the step-mother of the minoragainst whom the suit was intended to be filed and who as a step-mother was a party to theguardian petition. She filed a counter affidavit in which she reserved her objections to the claim on the merits and desired that the Court should direct the guardian to take such steps as he might be advised at his own risk. This counter affidavit did not characterise the intended suit by the guardian as frivolous or actuated by spite or ill Will.
This application, with this report and counter affidavit came on before the learned Subordinate Judge and he disposed it of by a short order which runs thus:
'The guardian has already been directed to take such action as he deems fit. The guardian is referred to the previous prder. He is at liberty to institute such proceedings as he may be advised to take subject however to such risk being taken by the guardian as may be imposed on him later.'
The guardian has filed this revision petition challenging the legality or propriety of this order of the learned Subordinate Judge and I am of opi-nion that his complaint is justified.
Section 33, Guardians and Wards Act runs thus:
33 (1): A guardian appointed or declared by the Court may apply by petition to the Court which appointed or declared him for its opinion, advice or direction on any present question respecting the management or administration of the property of his ward.
(2) If the Court considers the question to be proper for summary disposal it shall cause a copy of the petition to he served on, and the hearing thereof may be attended by, such of the persons interested in the application as the Court thinks fit.
(3) The guardian stating in good faith the facts in the petition and acting upon the opinion, advice or direction given by the Court shall be deemed, so far as regards his own responsibility, to have performed his duty as guardian in the subject-matter of the application.'
It is hot disputed that the application was properly filed under this provision. If so, the Court was bound to consider the propriety of instituting the action. The guardian of course did not need the sanction of the Court to start a litigation if be were to do so at his risk. It is just ecause ho desired to avoid taking risk in the matter that he approached the Court and placed before it, the circumstances of the case together with the opinion of the legal adviser.
The Court might have after perusing the facts and hearing counsel, reached the conclusion that the action is frivolous or is not in the interests of the minors in which event it would leave the guardian to pursue the claim at his risk without utilising the fluids of the minors.
If the Court should feel that the action is not frivolous, the guardian is entitled to an order from the Court giving him directions as to how he should proceed. For this purpose it, might be necessary that funds should be sanctioned to enable him to institute the action.
In my opinion, the learned Subordinate Judge has not exercised the jurisdiction vested in him under Section 33, Guardians and Wards Act.
Learned Counsel for the respondent placed before me a decision of the High Court of Allahabad in - 'Mt. Taskin Fatma v. Md. Munim Baksh : AIR1928All259 , as supporting the order passed by the learned Subordinate Judge in the present case. I am however unable to agree that the decision is any authority in favour of the respondent. In that case where a guardian applied for directions of the Court to institute a suit, the Court passed an order stating
'it is sufficiently clear from the events subsequent to my order of 10-9-1926 and from the conduct of the applicant that the application was made mala fide. I dismiss it.'
Subsequently the question arose whether the guardian could not even after the order of the Court declining that sanction, institute a suit and maintain an action. It was held that the guardian could file the suit, only he would be doing so at his own risk. Lindsay J. delivering the judgment of the Bench after referring to the order of the Subordinate Judge extracted earlier and its legal result said:
'All that can be said is that it was passed apparently in a proceeding taken under Section 33 and that it must be taken that the Court was of opinion that the suit which the guardian proposed to file was a suit which should not be brought. That order will not prevent the guardian from bringing the suit if he is so advised, but in bringing the suit he acts at his own risk and will not be entitled to the indemnity which is conferred upon guardians acting with the advice of the Court under Sub-section (3) of Section 33.'
This case in my opinion does not decide that a Court might refuse to proffer advice or give a direction when . it is approached by a guardian under Section 33, Guardians and Wards Act.
3. In my opinion, a guardian making an application under Section 33 is entitled to have the advice and direction of the Court to enable him to obtain the benefit of the statutory presumption of a faithful performance of the duty cast upon him by the law and secure the protection which sub-Clause (3) affords. As I have mentioned earlier, the Court can certainly dismiss the application if it is of opinion that any such action is not in the interests of the minors. As the learned Subordinate Judge has not decided the application in the manner in which it ought to be dealt with, the matter will have to be reheard by the learned Subordinate Judge and disposed of according to law.
4. The civil revision petition is allowed andthe application of the guardian is remanded fordisposal according to law. There will be no orderas to costs in this civil revision petition. Theguardian will take his costs out of his estate.