1. This is a Rule issued by my learned brother Mr. Justice S.K. Ghose calling on the opposite party to show cause why the order passed by the learned District Judge of Dacca, on 31st July 1929, rejecting the petitioner's application for the assignment of a bond under Section 35 of the Guardians and Wards Act, 1890, should not be set aside.
2. It seems that one Rajani Kanto Ghose was in 1898 appointed guardian of the persons and properties of two minors and on his appointment one Chandra Kumar Ghose executed a bond to the extent of Rs. l,000 for the one performance of the guardian's duty to account for the property of the wards. One ward died while still a minor. The other attained majority in 1915, and thereafter assigned all his property including his right to recover any claim he might have against the guardian to the petitioner and to one Hemlata Devi who subsequently transferred her interest under the aforesaid assignment to her co-assignee. The petitioner, thereafter, instituted an account suit against the guardian which was decreed on appeal. On accounts being taken the guardian was ordered to pay a decretal sum of Rs. 2,910 and Rs. 1,434-13-3 as costs. The greater part of this decree remains unsatisfied. An application for assignment of the surety bond to the petitioner was made to the District Judge and it was opposed by the legal representatives of the deceased surety and rejected. I am disposed to think that the form of the application before the District Judge, Dacca, was misconceived in that the petitioner thereby prayed that the bond should be assigned for realization of the sum of Rs. 1,000 in execution of the final decree passed in the account suit.
3. Before me the learned Advocate for the petitioner conceded that the assignment of the bond will not entitle the assignee to execute the decree against the estate of the deceased surety without instituting a fresh suit based on the bond. Since this concession the opposition to the application has been less vigorous, although it has in no sense been withdrawn. Looking at the substance of the matter, I think the learned Judge erred in refusing the application for assignment. He says that a purchaser from a ward cannot be held to have an assignable interest as trustee of the ward or to be a person seeking to recover on his behalf. The cases show that the Court has jurisdiction to assign the bond to the ward himself on attainment of majority. Moreover in Gonpat Tatia Maimkar v. Anna Bin Anandrao 30 B. 164, Jenkins, C.J., and Aston, J., held that the District Judge was wrong in holding that he has no power to assign the bond in favour of the heir of a deceased ward. I do not think that the words 'as trusee for the ward' in Section 35 prevent the Court's ordering an assignment in favour of the transferee of a ward who has attained majority. The exercise of the jurisdiction to assign is undoubtedly discretionary, but I do not think that any useful purpose would be served by my remanding the application. The learned Judge does indeed say that it would not be equitable to allow the petitioner to proceed against the representative of the surety. However, he gives no reason for taking this view nor has any been advanced before me.
4. I make the Rule absolute and I direct that the surety bond be assigned in favour of the petitioner.
5. Of course these proceedings will in no way operate to the prejudice of any defence the surety's representatives may have in a suit brought on the bond.
6. As to costs, in view of the form of the application in the District Judge's Court I do not think that in any event the opposite party should be compelled to pay the petitioner's costs of the Rule. If a suit be instituted within three months of the assignment of the bond, the costs of the opposite party will be dealt with by the Court disposing of the suit. If no suit be instituted within such period, the petitioner will pay the opposite party's costs of this Rule as well as her own. I assess the hearing-fee at two gold mohurs.