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Keshobati Kumari Vs. Satya NaraIn Singh - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in(1907)ILR34Cal569
AppellantKeshobati Kumari
RespondentSatya NaraIn Singh
Excerpt:
guardian - minor--guardians and wards act (viii of 1890), section 7--sonthal perganas--power of the district judge to appoint the deputy commissioner as guardian when holding simultaneously the offices of district judge and deputy commissioner. - .....sonthal perganahs under section 7 of act viii of 1890 (the guardian and wards act) appointing the deputy commissioner of the sonthal perganahs to be the guardian of the person and property of the minor, satya narain singh. the minor is the adopted son of the appellant.2. on the 10th april 1893, raja udit narayan singh of handwa in the sonthal perganahs died, leaving him surviving his widow, rani keshobati kumari, the present appellant. on the 7th april 1896, three days before his death, raja udit narayan executed a will by which he gave his widow pow to adopt three sons in succession. in the second clause of will there is a provision which has been translated as follows:--'but during the lifetime of the said rani the mokurari istemrari rights and all moveable and immoveable properties.....
Judgment:

Brett and Sharfuddin, JJ.

1. The present appeal is preferred by Rani Keshobati Kumari against an order, dated 18th November 1906, passed by the District Judge of the Sonthal Perganahs under Section 7 of Act VIII of 1890 (the Guardian and Wards Act) appointing the Deputy Commissioner of the Sonthal Perganahs to be the guardian of the person and property of the minor, Satya Narain Singh. The minor is the adopted son of the appellant.

2. On the 10th April 1893, Raja Udit Narayan Singh of Handwa in the Sonthal Perganahs died, leaving him surviving his widow, Rani Keshobati Kumari, the present appellant. On the 7th April 1896, three days before his death, Raja Udit Narayan executed a will by which he gave his widow pow to adopt three sons in succession. In the second clause of will there is a provision which has been translated as follows:--'But during the lifetime of the said Rani the mokurari istemrari rights and all moveable and immoveable properties and all household furniture &c.;, shall be entirely in her hands and under her management.'

3. On the 8th March 1893, Rani Keshobati Kumari adopted Satya Narain Singh as her son, and on the same date the natural father of Satya Narain executed a deed recognising the right of the Rani to retain management of the property during her lifetime. On the 22nd December 1905, Mohar Singh, a relative of the deceased Raja, filed a petition before the District Judge of the Sonthal Perganahs, praying that a guardian might be appointed for the minor, Satya Narain Singh, on the ground that the Rani had been wasting and mismanaging the property; and on the same date the District Judge passed an order appointing Mr. Macgregor Receiver pendente lite of the property then under management of the Rani, and issued an injunction restraining the Rani and certain other persons from interfering with the collections of the Handwa estate until final orders were passed on the application for the appointment of a guardian to the minor. Satya Narain Singh. The Rani filed her objection to the application on the 23rd February 1906. In that she claimed to be entitled under the will of her late husband to the management of the estate during her lifetime. On the 4th July 1906, the District Judge dismissed the application for the appointment of a guardian, and directed that the estate should be made over to Rani Keshobati Kumari. Mohar Singh appealed to the High Court, and on the 12th September 1906 a Bench of this Court held that it was necessary to remand the case to the District Judge in order that he might appoint a guardian for the minor Satya Narain Singh. The Judges held that the District Judge was right in directing the release of the estate and its being made over to the Rani, but that he was wrong in not proceeding to appoint a guardian for the minor, as the Rani was not a guardian appointed by the Court, and the application was for the appointment and not for the removal of a guardian. They whether held that, in order to determine the question raised in that they holding whether the Rani was entitled under the will of the Raja to remain in possession of the estate and what were the rights of the minor, it was necessary in the interests of the minor that a guardian should be appointed at once. They also directed the District Judge to call on Mohar Singh to name a person who was competent and willing to accept the position of guardian and then to decide who should be appointed.

4. On the 24th October 1906, Mohar Singh put in a petition before the Deputy Commissioner asking his permission to nominate him as a guardian. The Deputy Commissioner signified his assent. A petition was afterwards put in before the District Judge by Mobar Singh in which he nominated the Deputy Commissioner of the Sonthal Perganahs as a proper person to be appointed as guardian, and on the 19th November 1906 the District Judge passed the order appointing the Deputy Commissioner of the Sonthal Perganahs guardian of the person and property of the minor, Satya Narain Singh. Against this order the Rani has appealed.

5. In the Sonthal Perganahs the same officer holds the offices of the District Judge and Deputy Commissioner, and in support of the appeal it has been argued that the order of the District Judge appointing himself, in his capacity of Deputy Commissioner as guardian was wrong and improper. It has been contended that from the provisions of Section 4, Clause 5 which defines the Court, of Section 8 which mentions the persons entitled to apply for the appointment of a guardian, of Chapter III which lays down the duties rights and liabilities of the guardians, and specially of Sections 26, 29, 30, 31, 34 and 39 of that Chapter, it is clear that the Act contemplates that the District Judge shall appoint as guardian a third person who will be responsible to him for the due discharge of his duties, and who may be removed by him for sufficient reason. It is suggested that it is absurd to suppose that the Act contemplates the appointment by the District Judge of himself in another capacity as guardian responsible to himself for the due discharge of his duties.

6. The learned Counsel for the respondent contends that the order passed by the District Judge is in accordance with the provisions of the Act and should therefore be allowed to stand He points out that the provisions of Section 4, Clause (6), define the meaning of 'Collector' as used in the Act, and that the term includes the Deputy Commissioner in a non-regulation district such as the Sonthal Perganahs; that under Section 18 of the Act the Collector can be appointed guardian of a minor in virtue of his office; and that Section 23 lays down that a Collector so appointed 'shall in all matters connected with the guardianship of his ward be subject to the control of the Local Government or of such authority as that Government by notification in the official Gazette appoints in this behalf.' The sections in Chapter III, on which the learned Counsel for the appellant relies, apply to persons other than the Collector appointed as guardian, and therefore the difficulties to which he has referred cannot arise.

7. The learned Counsel for the respondent has also pointed out that in this case there are serious difficulties to the appointment of a third person as guardian, as such a person would naturally require some remuneration for his services, and the District Judge has no funds at his disposal on behalf of the minor out of which to pay such remuneration.

8. We have carefully considered the provisions of the Act, and we can find nothing in them which would justify us in holding that the order of the District Judge is not in accordance with law. There is nothing in the Act to support the conclusion that the Deputy Commissioner being in the position of the Collector in the Sonthal Perganahs is incompetent to apply as such for the appointment of a guardian to a minor under the provisions of the Act, even though the application would be to himself in his capacity of District Judge, nor is there anything to support the view that the District Judge is precluded from appointing the Deputy Commissioner as guardian of a minor even though he himself may hold the latter office. In his two offices as District Judge and Deputy Commissioner he has two distinct personce in the eye of law, and in the latter capacity when appointed as guardian he is subject to the control of an authority different from himself as District Judge.

9. It has been suggested that the District Judge might have appointed an officer of his Court as guardian, but such an appointment would be open to the obvious objection that such an officer would act entirely under the orders of the District Judge.

10. There is, too, in the present case the difficulty that until the rights of the minor, if he has any, have been ascertained there are no funds with which to pay any remuneration to a guardian.

11. Under all these circumstances, We are of opinion that the order of the District Judge is not open to objection, and we confirm it and dismiss the appeal with costs.

12. In the view which we take, it is not necessary to discuss the questions which have been raised, viz., whether the Rani has a right to appeal, or whether Mohar Singh should be allowed to appear in the appeal as a party-respondent.

13. We direct that the record be returned at once. 14. Rule is discharged without costs.


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