1. This is an appeal against an order of the District Judge of Tipperah. removing the appellant from guardianship of certain minors, and also against an order passed under Section 45, Sub-section 1, Clause (c) of Act VIII of 1890, by which the appellant was ordered to be detained in civil jail, until he paid a certain sum of money as directed by the Court under the provisions of Section 41, subsection 3. (There is also an application under Section 115, Civil Procedure Code, to set aside the orders of the Court below.
2. It appears from the judgment of the Court below, and the finding of the learned Judge is amply supported by the record, that the appellant has clearly abused his trust and that his interests are adverse to those of the minors. He has, therefore, been rightly removed from the guardianship of all the minors. It further appears that the guardian applied to the Court for permission to sell certain properties for liquidation of certain debts alleged to be due by the minors, and permission was granted accordingly. Two properties were sold for Rs. 6,800 and the learned Judge has found that only Rs 5,325 out of the said sum were paid in liquidation of the debts, although the whole of the said amount, namely, Rs. 5,325, was not due by the minor Maleka Khatun, whose father was the owner of the two properties. It has also been found that Rs. 1,475 out of the said sum are admittedly in the hands of the appellant, and the Court below has directed him to pay into Court the said amount. The learned Judge has further directed the appellant under Section 41, Clause (3), to render full accounts, and to pay into Court the balance, if any, that remains in his hands from excess of income over expenditure (apart from the Rs. 1,475 in his hands from sale of the houses).
3. It is contended before us on behalf of the appellant that the Court has no jurisdiction to pass the said orders. Having regard to the case of Nabu Bepari v. Sheikh Mahomed 6 C.W.N. 207, we must hold that Section 41 of the Act only empowers the Court to require the guardian 'to deliver, as it directs, any accounts in his possession or control relating to any past or present property of the ward; and that the Court has no power to order ac-counts to be rendered after the termination of guardianship. The order, therefore, in so far as it directs the appellant to render accounts to the Court and to pay into Court the balance, if any, that; remains in his hands, on rendering such accounts, must be set aside. The Court, however, has power, under Section 41, Clause (3), to direct a guardian on the termination of his guardianship to deliver any property (which includes money) belonging to the ward in his possession.
4. The Court below, as already stated, found that the sum of Rs. 1,475 was admittedly in the hands of the appellant.
5. It is contended on behalf of the appellant that the learned Judge is in error in holding that there was any admission on the part of the appellant that Rs. 1,475 was still in his hands. It no doubt appears from his deposition that he stated that after payment of Rs. 325 to the creditor Sarat the balance was with him, but he went on to say that he paid Rs. 7,201 to another creditor, and paid rents and. other expenses on behalf of the minor from the said balance, '' Then in the accounts submitted by him, he showed that he paid Rs. 720 to another creditor and met the marriage and maintenance expenses of the minor Maleka Khatun. The learned Judge holds that no money was spent for her maintenance (after the sale), as she went to live with her husband 8 days after the sale, but he did not go into the question whether the appellant had applied the balance for the benefit of the minor, on the ground that he had no permission to spend capital money in that way.
6. If, however, the guardian actually applied the balance in his hands for the necessities or benefit of the minor, we do not think he can be called upon to pay such money as 'property of the minor in his possession' and detained in jail for non-payment, merely because there was no permission to spend the money in that way. It would then be a matter of general accounts, which will be gone into in any suit for accounts which might be brought against him.
7. Although we think that the Court below when removing the guardian, acted within its jurisdiction in enquiring into the question, whether, any portion of the proceeds ' of the sale sanctioned by it was in the hands of the guardian which he might be called upon to pay, there ought to have been a full enquiry into the matter more specially as the learned Judge directed the guardian to be detained in jail for nonpayment of the money.
8. We accordingly confirm the order of the Court below removing the appellant from guardianship of all the minors, and set aside the order directing the guardian to render accounts.
9. The case will go back to the Court below, in order that it may make a 'full enquiry as to whether the balance of the proceeds of the sale of the two houses viz.. Its. 1,475, was in the hands of the appellant, or had been applied for the necessities or the benefit of the minor.
10. If it is found that any portion of the said balance (Rs. 1,475) was not spent for the minor, the Court may make an order under Section 41 (3) for payment of such sum into Court, and on the appellant's failing to pay such sum, the Court may proceed under the provisions of Section 45, if it considers that the appellant should again be detained in jail.
11. In this connection the Court should take into consideration the fact that the present guardian has already been authorized to sue the late guardian upon his security bond.
12. The appellant must pay the costs of the respondent. Hearing fee four gold mohurs.