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Thiagaraja Mudali and anr. Vs. V.N. Kothandapani Mudaliar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1928Mad980a; 113Ind.Cas.238
AppellantThiagaraja Mudali and anr.
RespondentV.N. Kothandapani Mudaliar
Cases ReferredNarendar Singh v. Chatrapal Singh
Excerpt:
- - instead of ruling that the court had no option to re-fuse to allow the guardian to retire, the court went into the merits of the reasons for his wishing to retire and held that in the circumstances the best course was to permit him to retire- a case of the allahabad high court bench directly against the petitioner is reported in narendar singh v......the retiral took place whatever the court did or did not do. some meaning must be read into the word 'permission' and to say that permission cannot be refused is tantamount to saying that no permission is necessary. it is significant that the word 'shall' is used in the sub-section which indicates that the word 'may' was purposely used in sub-section 1. it is also easy to see why permission of the court is necessary. if the mere statement by the guardian that he wishes to retire puts an end to his guardianship, the trial of oases would be continually hampered by guardians retiring whenever they saw the case was going against them, in order to postpone judgment and decree as long as possible. the legislature has, therefore, provided that a guardian cannot throw over his duty at his own.....
Judgment:

Wallace, J.

1. The short point argued in this civil revision petition is whether it is open to a Court to refuse to permit a guardian ad litem to retire from a case. The petitioner argues first that the mere statement by the guardian that he wishes to retire is tantamount to a retiral and that after that statement he remains no longer a guardian; and secondly that even if he cannot actually retire without permission of the Court that permission cannot be refused.

2. As to the first point: the petitioner relies on the wording of Order 32, Rule 11 (2) arguing that the phrase used is merely 'retires' and not 'retires with permission' but the phrase in this sub-section of the rule must be subject to the foregoing subsection and 'retires' as used in Sub-section 2 must import the conditions of a retiral set out in Sub-section 1.

3. As to the second point; the petitioner argues that 'may permit' is equal to 'shall permit' and that the rule is mandatory. I am not able to accept that contention. If the Court had no option it was unnecessary to insert any rule about the permission of the Court, since the retiral took place whatever the Court did or did not do. Some meaning must be read into the word 'permission' and to say that permission cannot be refused is tantamount to saying that no permission is necessary. It is significant that the word 'shall' is used in the sub-section which indicates that the word 'may' was purposely used in Sub-section 1. It is also easy to see why permission of the Court is necessary. If the mere statement by the guardian that he wishes to retire puts an end to his guardianship, the trial of oases would be continually hampered by guardians retiring whenever they saw the case was going against them, in order to postpone judgment and decree as long as possible. The legislature has, therefore, provided that a guardian cannot throw over his duty at his own caprice. He must put forward be fore the Court satisfactory reasons for wishing to retire, in default of which he will not be permitted to retire.

4. Petitioner is not able to cite any ruling directly in his favour. Reliance is placed on L. Ramaswami v. L. Lakshmana [1911] M.W.N. 98 but that case seems to me rather against the petitioner's contention. Instead of ruling that the Court had no option to re-fuse to allow the guardian to retire, the Court went into the merits of the reasons for his wishing to retire and held that in the circumstances the best course was to permit him to retire- A case of the Allahabad High Court Bench directly against the petitioner is reported in Narendar Singh v. Chatrapal Singh : AIR1926All437 . The present case is very similar to the case in the Madras Weekly Notes. The lower Court has gone into the merits and held that the application to retire was not bona fide. That the Court has power to do and there is therefore no lack of jurisdiction or irregular exercise of jurisdiction. I therefore see no reason to interfere and dismiss the petition with costs.


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