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Jagannath Panja Vs. Mahesh Chandra Pal - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in36Ind.Cas.286
AppellantJagannath Panja
RespondentMahesh Chandra Pal
Cases ReferredTekait Ajant Singh v. Sundar Mall
Excerpt:
guardians and wards act (viii of 1890), section 34, clause (c), (d), section 45, sub-section (1) clause (b) - guardian, appointment and removal of--procedure--fine, when to be imposed. - .....his conduct has not been wholly satisfactory he may yet be allowed to remain in possession of the estate as guardian, additional security may, in the discretion of the district judge, be taken from him for the protection of the estate. the sole point for consideration in cases of this description is the welfare of the infant and the matters mentioned will be investigated from that standpoint alone. we may, in this connection, refer briefly to another point which does not require detailed consideration in view of the order we have already made. when the court decided to remove the guardians on the ground that they were not trustworthy and proceeded to appoint mahesh chandra^ pal as guardian of the person and property of the infant, no enquiry was made as to his fitness. but it is.....
Judgment:

1. This appeal is directed against three orders made under the Guardians and Wards Act, 1890. The appellant, Jagannath Panja, along with another person, Sashi Bhusan Kandar, was en the 25th of April 1911 appointed guardian of the property of an infant named Manmotha Nath Panja. On the 31st July 1913, the respondent Mahesh Chandra Pal, who alleges that he is a brother of the step-mother of the infant, made an application to the District Judge and prayed that the guardians might be called upon to file and to explain the accounts. Notices were thereupon served on the guardians to appear and explain why they had not filed the accounts. Some accounts, which were then filed on behalf of the guardians, were examined by the translator; his report disclosed that the original account books and vouchers were required for the proper scrutiny of the accounts. Abstracts of accounts and vouchers were subsequently filed by the guardians and supplemental accounts also were brought into Court, which the translator was directed to examine. On the 3rd December 1913, Mahesh Chandra Pal was granted permission to inspect the accounts and the translator was directed to note the objections. The translator submitted his report on or about the 10th February 1914, and on that date the 26th February was fixed for the guardian to appear so that an attempt might be made to secure some more satisfactory arrangement.' This evidently had reference to the report of the translator which showed that, if his view was correct, the management of the estate of the infant had been far from satisfactory. This was followed by subsequent orders in which the question was considered whether a fresh guardian of property might not, with advantage to the infant, be appointed, and en the 23rd April 1914, the appellant as also his colleague were removed from the office of guardians of the estate of the minor on the ground that they were not trustworthy. They were, however, not discharged, and were called upon to bring into Court Rs. 300 which was stated by them to have been in their hands on the 16th April 1914. They were also directed to produce a sum of Rs. 500 or Rs, 600 alleged to have been realised by them by the sale of paddy. Up to this stage, no notice had been served upon the guardians of any application to remove them from the guardianship of the infant; nor had they been called upon to show cause why they should not be so removed. On the 23rd April 1914, the appellant prayed that an enquiry might be made as to the truth of the charges brought against him by his colleague who, upon his own motion, had been discharged from guardianship on that date. On the 7th May 1914, the Court recorded an order that neither of the two guardians of the property had produced Rs. 300 and that contrary to the statements said to have been made before the Court on a previous occasion, each now alleged that the other held the money realised by sale of the paddy. The Court thereupon proceeded to impose a fine of Rs. 50 each on the appellant and the other guardian under Section 45(b) of the Guardians and Wards Act. The order further directed that if the previous directions of the Court were not carried out in the course of five days, a daily fins of Rs. 10 would be imposed on each guardian from the following day. On that date, the respondent Mahesh Chandra Pal, who had moved the Court, and initiated these proceedings, was appointed temporary guardian both of the person and property of the infant. On the 6th June 1914, there is an order recorded in the order-sheet that the fine imposed upon the appellant must be realised and that he must bring into Court Rs. 150 as the value of the paddy in his hands. It may be mentioned here that a sum of Rs. 150 had already heen brought into Court by the other guardian who was discharged at his own instance. This appeal is directed against the order of the 23rd April, whereby the appellant was removed from the guardianship, as also the orders of the 7th May and 6th June 1914, whereby fines were imposed upon him and he was directed to bring into Court the value of the paddy alleged to have been sold by him.

2. As regards the order for removal, it has been urged that the guardian should not have been removed till notice had been served upon him and he had been allowed reasonable opportunity to defend himself against the charges of mismanagement. The Guardians and Wards Act does not prescribe the procedure to be followed when the Court finds it necessary, either of its own motion or at the instance of a party interested in the welfare of the infant, to take steps for the removal of a guardian appointed by itself. But it is perfectly plain that no order for removal should be made till the guardian has been apprised of the charges brought against him and has been allowed reasonable opportunity to explain and, if possible, to defend his conduct. The procedure adopted in England for the removal of a guardian will be found described in the standard work on Chancery Practice by Daniell (Volume 1, page 982). It is there pointed out that an application to remove the guardian of the person or the estate of an infant must be made to the Court and be supported by evidence as well of the facts which render the application necessary as of the fitness of the proposed guardian and his consent to act. In the companion volume on Chancery Forms by Daniell, there are two forms (1398 and 1401) which set out the terms of the application and the contents of the affidavit whereby the application must be supported. It is clear from the form of the affidavit that special grounds for the application must be made out. Substantially, the same procedure is followed in the Courts of the United States, This procedure should, in our opinion, be followed in our Courts, based as it is upon the elementary rule that no order adverse to a party litigant should be made by a Court of Justice till he has been apprised of the charges brought against him and has been allowed reasonable opportunity to show cause. As was observed by this Court in the case of Tekait Ajant Singh v. Sundar Mall 16 Ind. Cas. 567 : 17 C.W.N. 862, it is a rule of universal application, based on the plainest grounds of justice, equity and good conscience, that a judicial order, which may possibly affect or prejudice any party, should not be finally made, unless he has been afforded an opportunity to be heard. Consequently, the order for removal of the appellant from the office of guardian cannot be supported. The charges brought against him were of a grave character; if the view taken by the translator, on an examination of the accounts, is well-founded, there is good reason to apprehend that there has been serious mismanagement of the estate of the infant by the guardians, and their conduct may possibly amount to a criminal offence. It is obviously just that, in a case of this character, opportunity should be given to the appellant to explain the accounts filed by him and to justify his conduct.

3. As regards the orders under Section 45(1)(b), whereby fines have been imposed upon the appellant and he has been called upon to bring into Court the sum of Rs. 150 as the value of paddy sold, we are of opinion that they have not been passed in conformity with the provisions of the Guardians and Wards Act and cannot consequently be supported. Section 45, Sub-section (1), Clause (b), authorises the Court to impose a fine on a guardian, if the guardian fails to pay into Court the balance due from him on those accounts,' i.e., the accounts exhibited by him in compliance with a requisition under Section 34(c). The payment contemplated has to be made in compliance with a requisition under Section 34(d). A reference to Section 34 shows that under Clause (e), the guardian is under obligation, if so required by the Court, to exhibit his accounts in Court at such times and in such form as the Court may from time to time direct; under Clause (d), it is obligatory upon the guardian, if so required by the Court, to pay into Court, at such time as the Court directs, the balance due from him (or so much of the balance as the Court directs) on those accounts, that is, the accounts exhibited on a requisition made under Clause (c). In the case before us, on the accounts exhibited under Section 34(c), Rs. 186 only was due from the guardians. Consequently the only order which the Court was competent to make was to call upon the guardians to bring into Court the sum of Rs. 186. As the requisition wad not in conformity with Section 34(d), it is clear that no fine could validly be imposed on the guardians for failure to comply therewith.

4. The result is that this appeal must be allowed, the orders dated the 23rd April, 7th May and 6th June set aside, and the case remitted to the District Judge for re-consideration. Any sums realised from the appellant under the orders now discharged will be refunded to him. In the circumstances of this case, we direct each party to pay his own costs up to this stage.

15. We find from the record that no security was taken from the appellant at the time of his appointment as guardian of the property of the infant or at any subsequent period. In view of the allegations made against his management of the estate, it is obviously essential, in the interest of the infant, that he should not be allowed to continue as guardian of the property, unless he furnishes security to the satisfaction of the Court, and he has in this Court expressed his readiness to do so. We accordingly direct that within one month of return of the record to the Court below, he do furnish security to the extent of Rs. 1,500 to the satisfaction of the District Judge, and in such form as he may determine. The security so taken will cover the past management of the estate by the appellant as also his future dealings therewith if he continues as guardian. If he fails to furnish security as now directed, he will stand removed from the guardianship. If he furnishes security and continues as guardian under the jurisdiction of the Court, his accounts will be scrutinised, and the charges brought against him will be investigated. If on examination it transpires that his management of the estate has been of such a character that he should not be allowed to remain in charge of the estate of the infant any longer, he, will be removed. If, on the other hand, it transpires that although his conduct has not been wholly satisfactory he may yet be allowed to remain in possession of the estate as guardian, additional security may, in the discretion of the District Judge, be taken from him for the protection of the estate. The sole point for consideration in cases of this description is the welfare of the infant and the matters mentioned will be investigated from that standpoint alone. We may, in this connection, refer briefly to another point which does not require detailed consideration in view of the order we have already made. When the Court decided to remove the guardians on the ground that they were not trustworthy and proceeded to appoint Mahesh Chandra^ Pal as guardian of the person and property of the infant, no enquiry was made as to his fitness. But it is eminently desirable that no person should be appointed guardian of the person or property of an infant without some enquiry about his fitness for the office.

16. The accounts and papers already filed will remain in the custody of the Court. But all facilities will be given to both parties to have access to them under proper safeguards. We may finally and that as the appeal has filed by Jagannath Panja alone, be will be restored as guardian under our orders. As his colleague was removed on his own application and has expressed no desire to undertake again the responsibilities of the office, the order of the District Judge will stand untouched in that respect.


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