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Kullappa Mudaliar Vs. Palaniappa Mudaliar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1445 of 1949
Judge
Reported inAIR1950Mad574
ActsGuardians and Wards Act, 1890 - Sections 41, 41(1), 41(2) and 41(3)
AppellantKullappa Mudaliar
RespondentPalaniappa Mudaliar and ors.
Appellant AdvocateK.V. Ramachandra Iyer, Adv.
Respondent AdvocateT.L. Venkatarama Iyer, Adv.
DispositionPetition dismissed
Cases ReferredSadhu Singh v. Mehar Singh
Excerpt:
civil - estate - sections 41, 41 (1), 41 (2) and 41 (3) of guardians and wards act, 1890 - court directed guardian to deliver possession of deceased minor's property to minor's next legal heirs - guardianship ceases to exist on death of ward - court competent to divest deceased minor's properties from guardian appointed by it - court not committed any error in not receiving evidence adduced by guardian - direction under 41 (3) does not confer title upon transferee - open to person aggrieved by direction to have their rights established in regular suit before civil court - direction justified. - .....in his possession to the respondents, who claim to be entitled thereto on the death of a minor ward, for whose properties the petitioner had been appointed as a guardian by the district. court under section 16, guardians and wards act. the ward died before attaining majority. the respondents claiming to be entitled to the estate as next heirs applied to the district court that the petitioner, the guardian appointed by that court, should be directed to hand over to them the possession of the properties of which he had taken charge as guardian. objection was taken on the part of the guardian to the grant of the relief claimed by the respondents on various grounds. the main contention was that the court had no power under section 41, sub-section (3), guardians and wards act, to.....
Judgment:
ORDER

Viswanatha Sastri, J.

1. The petitioner seeks a revision of the order of the District Judge of North Arcot at Vellore directing him to deliver the properties in his possession to the respondents, who claim to be entitled thereto on the death of a minor ward, for whose properties the petitioner had been appointed as a guardian by the District. Court under Section 16, Guardians and Wards Act. The ward died before attaining majority. The respondents claiming to be entitled to the estate as next heirs applied to the District Court that the petitioner, the guardian appointed by that Court, should be directed to hand over to them the possession of the properties of which he had taken charge as guardian. Objection was taken on the part of the guardian to the grant of the relief claimed by the respondents on various grounds. The main contention was that the Court had no power under Section 41, Sub-section (3), Guardians and Wards Act, to direct the certificated guardian to hand over the properties of the deceased minor to persons claiming to be entitled to them on the death of the minor. A further objection was that the respondents claimed the properties not as the heirs of the minor but as reversioners entitled to the estate on the death of the minor. A somewhat vague suggestion was also made that the minor died under some suspicious circumstances and therefore the respondents were disentitled to the relief asked for by them.

2. It is contended by Mr. K.V. Ramachandra Aiyar that the Court below misconstrued the provisions of Section 41, Sub-section (3), Guardians and Wards Act, and assumed a jurisdiction which it did not possess under this provision of law. It is argued that Section 41, Sub-section (3) refers to the cessation of the powers of a guardian arising in the manner and in the circumstances enumerated in Section 41, Sub-sections (l) and (2) and not in any other way. Section 41, Sub-section (1) Clause (a) and Sub-section (2) Clause (a) refer to the death, removal or discharge of a guardian as resulting in the cessation of his powers as guardian. In none of the clauses of Section 41, Sub-section (1) or Section 41, Sub-section (2) is there any reference to the death of the minor though there is specific reference to the death of a guardian as an event which leads to the cessation of the guardian's powers. It is, therefore, argued that Section 41, Sub-section (3) when it refers to the cessation of the powers of a guardian refers back to Sub-sections (l) and (2) of Section 41 and does not include the death of a minor within its scope and ambit. The argument is no doubt plausible and has appealed to a learned Judge of this Court. I am, however, unable to agree that Section 41, Sub-section (3) is limited in its operation to cases where the powers of a guardian cease for any of the reasons or in any of the modes enumerated in Section 41, Sub-sections (1) and (2). It has been suggested for the respondent that Sections 41(l), Clause (c) and 41 (2), Clause (c) which refer to the contingency of the ward ceasing to be a minor might refer to the death of the minor. It is no doubt true that if the ward ceases to exist owing to his death he also ceases to be a minor. This contention, however, is in my opinion far fetched.

3. When the Legislature expressly referred to the death of a guardian in Sections 41(l) and (2) it might have also referred to the contingency of a minor's death as an event on the happening of which the powers of a guardian cease. At the same time, it does not follow that the operation of Section 41 Sub-section (3) should be cut down by a reference to Sections 41(1) and 41(2). The words 'when, for any cause, the powers of a guardian cease' in Section 41(3) are wide enough to cover a case where the powers of a guardian cease by reason of the death of the minor ward. After the death of a ward the person who was appointed his guardian does not continue to be his guardian, and the language of Section 41, Sub-section (3) is wide enough to be so read as to include the case of a guardian ceasing to be such by reason of the death of the ward. The Court having entrusted the property of a minor to the guardian appointed by it, has the duty, on the death of the minor, to divest itself of its control over the guardian and the property of the minor. It may direct the guardian to deliver the property into Court or to some person entitled to it on the death o the minor and Section 41, Sub-section (3) empowers the Court to pass the necessary order with reference to the property of the deceased minor. There is no substance in the contention of the learned advocate for the petitioner based upon the language of Section 41, Sub-section (3) referring to 'property belonging to the ward,' which according to him, indicates that the ward is in existence and the property belongs to him at the time when the direction of the Court is given to the guardian to hand over the property. The expression 'belonging to the ward' in Section 41, Sub-section (3) may reasonably be construed as property which once belonged to the ward and which be. longed to him till the moment of his death.

4. That the Court has got the power to direct the guardian of a ward who dies before attaining majority, to hand over the property of which he took possession under the authority of the Court and by virtue of his appointment as a guardian, to the persons lawfully entitled to the property on the death of the ward has been recognised by judicial decisions. This power was assumed to exist in the case in Murlidhar v. Vallabhdas, 33 Bom. 419 : 3 I. C. 172. In Natiraja Pillai v. Subbaraya Pillai, 1918 M. W. N. 440 : A. I. R. 1919 Mad. 255, Old field and Sadasiva Aiyar JJ., held that the Court had power to direct a guardian to hand over the property of a deceased minor ward to a person who claimed as heir of the minor in respect of which property he had been appointed a guardian under the Guardians and Wards Act. It is true as pointed out by the learned advocate for the petitioner that Srinivasa. Aiyangar J. sitting as a single Judge in Tulasidas v. Madhavadas : AIR1926Mad148 doubted the correctness of the decision in Nataraja Pillai v Subbaraya Pillai, 1918 M.W.N. 440 : A. I. R. 1919 Mad. 255. But having regard to the wide language of Section 41(3) and the object behind this statutory provision, I do not share the doubt expressed by the learned Judge, Reference was also made to the decision in Harikrishna v. Govindarajulu, A. I. R. 1926 Mad. 478 : 98 I. C. 332 where a Bench of this Court held that the Court which appointed the guardian was not empowered under Section 41(3) to direct the guardian to pay into the Court more than the amount shown to be due in the accounts exhibited by him. This decision does not cast any doubt on the power of the Court to order the delivery of property or money in the hands of the guardian and admittedly belonging to the estate of the minor, to the person entitled thereto as heir of the deceased ward.

5. To the same effect as Natiraja Pillai v. Subbaraya Pillai, 1918 M. W. N. 440 : A. I. R. 1919 Mad. 255 is a decision of the Nagpur High Court in Sugrabai v. Mustakan Khan, and of the Lahore High Court in Sadhu Singh v. Mehar Singh, A. I. R. 1931 Lah. 68 : 130 I. C. 779. I am in respectful agreement with these decisions.

6. It is next contended that the petitioner has been prejudiced by the course taken by the District Court in not receiving the evidence sought to be adduced by the petitioner. Section 41, Sub-section (3) does not require a final or conclusive adjudication on the rights of parties Even if a Court acting under Section 41(3) directs a guardian to hand over the properties of a deceased minor ward to a particular person such direction in no way confers an absolute title on the person to whom the property is delivered The question of title is not concluded by an order passed under Section. 41(3) What is final is the order directing possession to be given to a party and nothing more. It is always open to per-sons aggrieved by the direction or decision under Section 41(3) to have their rights established in a regular suit in the civil Court. Having regard to the fact that the petitioner does not claim any title to the properties in himself and to the admission in his counter affidavit that he had no objection to deliver the properties to whomsoever the Court directs I do not consider that the petitioner has suffered any injury by the course taken by the learned District Judge.

7. As regards the vague hint that the respondents had something to do with the suspicious circumstances under which the minor died, there is nothing beyond a random suggestion in the counter affidavit and I consider that the learned District Judge acted properly in disregarding such a wild allegation.

8. For these reasons I hold that the order of the learned District Judge was one within his jurisdiction to pass and that there are no grounds for interference in revision. This civil revision petition is, therefore, dismissed with costs.


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