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Jagat Bai Vs. Babu Gajadhar Upadhya Nazir - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata
Decided On
Judge
Reported in7Ind.Cas.46
AppellantJagat Bai
RespondentBabu Gajadhar Upadhya Nazir
Excerpt:
guardians and wards act (viii of 1890), sections 29, 39 - minor's property, judge's power to deal with--court's direction of its own motion to sell minor's property, ultra vires--removal of guardian--notice on guardian necessary, for showing cause. - .....it is an order which is in no way justified by any law with which we are acquainted and it is wholly outside the powers and jurisdiction of the district judge. the section which empowers him to deal with the minor's property is section 29. it only enables the judge to give permission to the guardian to sell such portions of the properties as may be necessary on an application properly framed by the guardian for that purpose. it confers no power whatever on the judge to deal with the minors' property on his own motion in any way. supposing that the nazir were properly appointed a guardian of these minors, it would be for the nazir to apply to the court for permission to sell whatever was necessary to clear off the minors' debts, and on his doing so, the learned judge would then have to.....
Judgment:

1. This is an appeal from the order of the District Judge of Bhagalpur removing the guardian owing to her mismanagement and getting involved in difficulties. The nazir has been appointed in her place for the property and has been directed to sell all properties of the minors and convert them into cash, which after paying off all debts, may be converted to G.P. Notes and the interest given as maintenance for the minors.

2. With this extraordinary order, which is wholly without jurisdiction and ultra vires, we shall deal presently. Bat the first question to decide is whether a guardian can be removed on the materials before us. Under Order XXXII the loans which she was said to have taken without sanction were condoned, certain other loans were sanctioned and she was warned that she would be removed if she contracted any further unauthorized debts. Now there is nothing to show that between the passing of Order XXXII and the present Order she has transferred or disposed of any portion of the minor's property without the sanction of the Court. Section 39 says--The Court may, on the application of any person interested or of its own motion, remove a guardian appointed or declared by the Court for any of the ten causes which are mentioned in the section. Now the only one of those causes which appears to apply to this case is (b) 'for continued failure to perform the duties of her trust.' But it was obviously the duty of the Court, as it is the duty of all Courts when they act upon their own motion against the interest of any person subject to their jurisdiction, to issue a Rule informing the lady what there was against her and upon what evidence or information it was based and calling upon her to show cause why she should not be removed for the reason given in the law. Nothing of the kind is done. We are not informed that the lady was asked to go to Court or to make any answer to the allegations which are now made in the order; nor does it even appear that any such allegations were ever made to her knowledge or in her presence.

3. The order removing the guardian is, therefore, bad and must be set aside.

4. If the learned Judge is satisfied that there are grounds for calling upon her to show cause why she should not be removed, it is open to him to do so upon proper evidence and proper information and after giving her an opportunity of being heard. The order removing the lady having been declared bad, the subsidiary order of the nazir to sell the property of the minors necessarily goes with it and there is no occasion to issue a Rule or to deal with the matter under Section 115, Civil Procedure Code. But we would point out to the learned Judge that had this order stood by itself, we should certainly have found it necessary to exercise our extraordinary revisional power in setting it aside at once, for it is an order which is in no way justified by any law with which we are acquainted and it is wholly outside the powers and jurisdiction of the District Judge. The section which empowers him to deal with the minor's property is Section 29. It only enables the Judge to give permission to the guardian to sell such portions of the properties as may be necessary on an application properly framed by the guardian for that purpose. It confers no power whatever on the Judge TO deal with the minors' property on his own motion in any way. Supposing that the nazir were properly appointed a guardian of these minors, it would be for the nazir to apply to the Court for permission to sell whatever was necessary to clear off the minors' debts, and on his doing so, the learned Judge would then have to consider from a judicial point of view what was most in the interest of the minors.

5. With these remarks we allow the appeal, set aside the judgment and order of the District Judge and direct that the records be returned to him for taking any steps according to law which he may deem proper.

6. There will be no costs as there is no one opposing except the nazir of the Court.


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