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Pakhwanti Dai Vs. Indra NaraIn Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1896)ILR23Cal201
AppellantPakhwanti Dai
Respondentindra NaraIn Singh
Cases ReferredMohima Chundra Biswas v. Tarini Sunkur Ghose I.L.R.
Excerpt:
appeal - guardians and wards act (viii of 1890), section 47, clauses (f)and (g)--removal of guardian--order refusing to remove a guardian. - .....an order of the district judge by which he has removed the respondent from the guardianship of the person of a minor and directed him while continuing to be the guardian of his property to pay a certain sum of money towards the maintenance of the ward. a preliminary objection has been taken by mr. hill for the respondent that this order is not appealable within the terms of section 47 of the guardians and warns act 1890, not being an order within the terms of clause (g) removing a guardian under section 39. the appeal is not against the order removing the guardian in respect of the person of the minor for that is in favour of the appellant, but it is really an appeal against he order of the district judge refusing to remove him from the guardianship of the manor's property. mr. jackson.....
Judgment:

Prinsep and Ghose, JJ.

1. This is an appeal against an order of the District Judge by which he has removed the respondent from the guardianship of the person of a minor and directed him while continuing to be the guardian of his property to pay a certain sum of money towards the maintenance of the ward. A preliminary objection has been taken by Mr. Hill for the respondent that this order is not appealable within the terms of Section 47 of the guardians and Warns Act 1890, not being an order within the terms of Clause (g) removing a guardian under Section 39. The appeal is not against the order removing the guardian in respect of the person of the minor for that is in favour of the appellant, but it is really an appeal against he order of the District Judge refusing to remove him from the guardianship of the manor's property. Mr. Jackson contends on behalf of the appellant that the order must be regarded as a whole, and that in that respect it is appealable within the terms of Section 47. It seems to us, however, that it cannot be so regarded. The order in its several parts is passed under different sections of this Act. In respect of the removal of the respondent from the guardianship of the person of the minor, it is an order passed under Section 39, and in that respect it would be appealable; but this is not the order which is the subject-matter of this appeal. Mr. Jackson next contends that it is an order under Section 32 of the Act, because it has denied and restricted the powers of the guardian with respect to the property of the ward. It seems to us, however, that an order under Section 32 is an order in regard to the management of the property by a guardian. The order in question is really in respect of the sum allowed for the maintenance of the minor, an order under Section 34 (c), and is an order which can be properly passed at any time during the continuance of the guardianship, or, as in this case, after it became necessary to make other arrangements in consequence of the removal of the guardian in respect of the person of the ward by the appointment of the appellant as guardian of his person. Several cases have been cited to us in support of the contention that an order of this description is appealable, and we have been asked to follow the principles laid down in them in respect to what it is contended are analogous instances. But none of those cases is really in point, because they all refer to orders under some particular section of some particular Act which are declared to be appealable, and in those cases the point for decision was whether the particular order fell within the terms of that section. Section 47, however, which is the section with which we have to deal, does not declare that all orders under Section 39 shall be appealable, but restricts the right of appeal to an order 'under Section 39 removing a guardian,' and Section 48 declares that 'save as provided by the last foregoing section and by Section 622 of the Code of Civil Procedure, an order made under this Act shall be final.' An order refusing to remove a guardian, though an order under Section 39, does not fall within the terms of Section 47 in regard to the right of appeal against it. We find also that there is an authority holding, and as we think correctly, that an appeal does not lie in a case such as that now before us [see Mohima Chundra Biswas v. Tarini Sunkur Ghose I.L.R. 19 Cal. 487]. We accordingly dismiss this appeal with costs.


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