1. This is an appeal against a preliminary decree, passed by the Subordinate Judge of Rajshahye on the 18th. July 1908,in an action for an account.
2. The facts leading up to the suit may be briefly stated. One Bishambhar Shaha was the younger brother of Nawadwipa Chandra Shaha (defendant No. 1) ; and they were members of a joint Hindu family. Bishambhar died in Falgun 1303 (some date in February 1897) leaving two daughters Jogal Dassee Dassya (plaintiff) by his second wife, and Koki Dasya (defendant No. 2) by his third wife. The first and second wives of Bishambhar both predeceased him. His third wife died in Assar 1304 (July 1897). In 1899 the maternal grandfather of the plaintiff and the maternal grandfather of the defendant No.2 applied to the District Judge of Mymensingh for certificates of guardianship, under Act VIII of 1890, in respect of the person and property of the two minors respectively. The defendant No. 1 also filed a similar application. The District Judge, however, on the 31st May 1901, appointed the defendant No. 1 as guardian of both the minors. The maternal grandfather of the plaintiff and the maternal grandfather of the defendant No. 2 both appealed to this Court. During the pendency of the appeal, the plaintiff swa married to one Benode Lal Shaha in Jaisto 1309 (May 1902). Thereupon, this Court, on the appeal coming on for hearing, appointed Benode Lal Shaha as guardian of the person and property of the plaintiff on the 26th March 1903 and confirmed the appointment of the defendant No. 1 as guardian of the defendant No. 2. The plaintiff's husband then applied to the District Judge to be put in possession of the property belonging to the plaintiff, and the defendant No. 1 was ordered to make it over to him. On the 23rd March 1904, the District Judge made an order directing Babu Siris Chander Chowdhry, the Apleader on behalf of the guardian of the minor, to go to Nawadwipa Chander Shaha and make a demand for the one-fourth share which the latter was willing to deliver within a fortnight from that date. In accordance with this order, the guardian and the pleader, Baboo Siris Chander Chowdhry, both went to the house of the defendant No. 1 to take delivery of the one-fourth share of the property specified in the schedule to the application made by the defendant No.1.The guardian and Baboo Siris Chander Chowdhry, instead of taking possession of the one-forth share of the scheduled properties, obtained delivery of possession of one-fourth of the immovable properties, and, wich regard to the movable properties, entered into an arrangement with the defendant No.1 where by the guardian agreed to accept Rs.875 in lieu of a one-fourth share of the scheduled properties. This sum, however, was not paid in cash. A mortgage decree against one Khadim Shaikh was made over to the guardian in lieu of Rs. 125 and four simple bonds were executed by the defendant No. 1 in favour of Jagat Hari Shaha for the balance of Rs. 750, agreeing to pay the sum covered by these mortgages in Aswin following, and, as part of this arrangement, the defendant No. 1 expressly agreed that he would give up to the guardian any property belonging to the minor which might subsequently be discovered to be in possession of the defendant No. 1.
3. The defendant No. 1 has denied this arrangement and set up an entirely different one. But with this we shall deal later. The defendant No. 1, not having carried out the agreement, in spite of repeated demands and written notices to him, the plaintiff has through her guardian, brought the present suit for an account from the month of Falgun 1303, the date when the minor's father died, up to Jaista 1310 when the plaintiff's husband took over the management of the properties of the minor.
4. The Court below has passed a preliminary decree for an account against the defendant No. 1, holding that the arrangement entered into between the plaintiff's guardian and the defendant No. 1 was detrimental to the interest of the minor ; that the defendant No. 1 has failed to carry out that arrangement, and has totally repudiated its terms.
5. From this decree the 'defendant No. 1 has appealed ; and on his behalf it has been contended that the present suit for an account is not maintainable, because, it is said, he has already rendered accounts in the Court of the District Judge in the proceedings under Act VIII of 1890. As a matter of fact, what the defendant No. 1 did was that he filed nikashes or abstract statements of assets and liabilities concerning the estate from the year 1303 up to the year 1314. In our opinion, the mere fact that such nikashes had been filed does not release the defendant No. 1 from liability to account to the present-guardian, regard being had to the fact that he has not obtained any discharge from such liability from .the District Judge.
6. The terms of Section 41, Sub-sections (3) and (4) of Act VIII of 1890, clearly imply that a guardian is not discharged from his liability to account, unless he has obtained from the Court an express order to that effect. This view is supported by the decision in the case of Kaniz Fatima v. Sajjad Hossein 34 C. 211 It is quite clear--in fact, it is conceded--that the defendant No 1 obtained no express order discharging him from liability to render an account. But it is said that an order to that effect must be implied from the fact that nikashes for several years had been filed in the Court of the District Judge and that it was no fault on the part of the defendant No. 1 that the plaintiff's guardian did not inspect these accounts. We think that, under the law, the defendant No. 1 cannot exonerate himself from liability unless he obtains an express order from the Court discharging him from such liability.
7. It is next contended that although the defendant No. 1 may be held liable to render an account in respect of properties not included in the schedule annexed to the defendant No. l's application for a certificate of guardianship, he is not liable to render an account in respect of the properties included in that schedule and in respect of which a release has been obtained under the arrangement referred to before.
8. Now, the first answer to this argument is that this arrangement was made between the guardian and the defendant No. 1 without the knowledge and sanction of the District Judge. It was eminently a matter in which the direction of the District Judge ought to have been obtained. Our attention has been drawn to Section 27 of the Guardians and Wards Act (VIII of 1890) as conferring on the guardian authority to enter into an arrangement of this kind. It does not seem to us that this section confers on the guardian such a large measure of authority as is contended for. But, assuming that it does, it is manifest that the guardian, in entering into this arrangement and not bringing it to the notice of the District Judge, acted in contravention of the order passed by him on the 23rd March 1904, under which the guardian was to take delivery of possession of a one-fourth share of the properties of the minor.
9. In the next place, we think that this arrangement was not only not beneficial, but,, on the contrary, it was clearly detrimental to the interests of the minors. The value of the plaintiff's share of the movables and the debts specified in the schedule to the application of the defendant No. 1 for a certificate of guardianship is estimated at Rs. 1,929 and odd. In lieu of this the guardian agreed to accept Rs. 875 only, and that not in cash but in actionable claims. Besides this, the defendant No. 1 has failed to carry out the arrangement into which he entered with the guardian. He has not executed any deed of assignment of the mortgage decree against Khadim Sheikh so as to enable the guardian to apply for execution of that decree. Nor has he paid up the four bonds which he promised to satisfy in the month of Aswin 1306. Not only has the defendant No. 1 failed to carry out the terms of the arrangement, but he has also repudiated those terms, and that not only in the present suit but also in the previous suit brought by the guardian. He alleged that asum of Rs. 125 was paid in cash, that Rs. 225 was paid in ornaments and that the mortgage decree against Khadim Sheikh was made over to the guardian in lieu of the balance of Rs. 495. This story has been disbelieved by the learned Subordinate Judge ; and we entirely agree in that view.
10. The four bonds executed in favour of Jagat Hari Shaha have been produced in this case by the plaintiff; and it is absolutely improbable that if this substituted arrangement, as is alleged by defendant No. 1, had taken place, those bonds would not be in the hands of the defendant No. 1, but would be still in the possession of the plaintiff.
11. For the foregoing reasons, we are of opinion that the judgment of the Subordinate Judge should be affirmed and this appeal dismissed with costs.