1. In this case Mr. Namberumal Chetty, the counter-petitioner, was appointed Receiver on the 19th of November 1913. On the 14th December, the widows against whom the suit was continued as the legal representatives of their deceased husband adopted a boy. The Receiver was appointed guardian of the minor boy by the widows. Thereupon this application was made to the District Court to cancel Mr. Namberumal Chettiar's appointment as Receiver. The District Judge ordered his removal on the sole ground that his position as guardian is likely to impair his discharge of duties as Receiver. He has not considered the allegations contained in the affidavits filed before him. We do not think that the mere fact that the Receiver is the guardian of the boy whom the defendants have adopted, is sufficient ground for his. removal from his appointment. Mr. Kerr says that a next friend of a minor should not be appointed as Receiver and in 24 Halsbury's Laws of England, the same statement is made. On referring to the authority which is quoted in support of the proposition, we find that such a rule is not enunciated by the learned Judges who decided the case. See Taylor v. Oldham (1822) 1 Jacob 527 : 37 E.R. 949. We cannot uphold the order on the ground on which it is based. In this Court, affidavits and counter-affidavits have been filed which make definite allegations against the manager to whom Mr. Namberumal Chettiar has entrusted his duties. On the other hand, the manager has distinctly denied the allegations contained in the affidavits filed before the District Judge and in this Court. We think that the District Judge should consider the allegations made and come to a conclusion whether the Continuance of Mr. Namberumal Chettiar is desirable in the interests of the trust.
2. Mr. Ganapathy Aiyar objects to our jurisdiction on the ground that as the power to appoint, granted to the District Judge under Order XL of the Code of Civil Procedure includes the power to dismiss the appointee, this Court acting under Section 115 of the Code of Civil Procedure and not under the Charter Act should not interfere. He relies upon Section 16 of the General Clauses Act of 1897 for this argument. As at present advised, we are unable to hold that the power conferred by that section, would enable a Court appointing a Receiver to remove him. Mr. Ganapathy Aiyar also contended that prima facie, the appointment of a guardian as Receiver is not proper and it is for the party desiring to uphold the appointment to show the exceptional circumstances which would justify his continuance. But this is a case of an application to remove a person already appointed. It is on the party who invokes the aid of the Court to show that his continuance will prejudice the interests of the institution.
3. We think that the proper order to be passed is to set aside the one made by the District Judge and to direct him to make a fresh enquiry with reference to the allegations contained in the affidavits filed in this Court and in the Court below and to pass a final order.
4. Costs of both parties will come out of the estate.