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Kamaksha Basini Chowdhurani Vs. Jagat Sundari Chowdhurani - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in30Ind.Cas.875
AppellantKamaksha Basini Chowdhurani
RespondentJagat Sundari Chowdhurani
Excerpt:
guardians and wards act (viii of 1890), section 47(g) - order for removal till decision of a particular case--appeal--inquiry, if necessary before removal. - .....will and urged that thereby she had acted in a manner which disqualified her from holding the office of guardian. the district judge thereupon, on the 15th september 1913, made the following order: the elder widow is permitted to manage the minor's estate singly, until the disposal of the case for the next three months.' on the 19th november another order to the following effect was recorded: put up after disposal of the letters of administration case. order regarding the management of the estate by the petitioner on the 15th september will remain for the present.' this appeal is directed against the orders of the 15th september and 19th november.2. on behalf of the respondent, a preliminary objection has been taken that the appeal is incompetent. in answer it has been argued by the.....
Judgment:

1. This appeal is directed against two orders passed under the Guardians and Wards Act, 1890. On the 31st August 1912, two ladies, who were the widows of one Kalikumar Sen Chowdhury and are the appellant and the respondent respectively in this appeal, were appointed joint guardians of the person and property of an infant, Hemendra Nath Ben Chowdhury, who had been taken in adoption by the respondent. The two guardians could not long act in harmony, and not many months had elapsed when on the 16th June 1913 the respondent applied to the District Judge for removal of the co-widow from the office of joint guardians. The application was promptly opposed. On the 30th August 1913 the respondent brought to the notice of the District Judge that the appellant had made an application for Letters of Administration to the estate of the father of the infant with a copy of an alleged Will and urged that thereby she had acted in a manner which disqualified her from holding the office of guardian. The District Judge thereupon, on the 15th September 1913, made the following order: The elder widow is permitted to manage the minor's estate singly, until the disposal of the case for the next three months.' On the 19th November another order to the following effect was recorded: Put up after disposal of the Letters of Administration case. Order regarding the management of the estate by the petitioner on the 15th September will remain for the present.' This appeal is directed against the orders of the 15th September and 19th November.

2. On behalf of the respondent, a preliminary objection has been taken that the appeal is incompetent. In answer it has been argued by the appellant that the appeal is competent under Clauses (f), (g) and (i) of Section 47 of the Guardians and AVards Act. In our opinion, it is plain that the appeal is competent under Clause (g). The real effect of the orders in question is to remove the appellant from the office of guardian of person and property of the infant, for the order of the 19th November is to remain in operation for an indefinite length of time. It may also be plausibly contended that the case is covered by Clause (f). But it is not necessary, for our present purpose, to determine whether Clause (f) or (i) is also applicable to the case.

3. As regards the merits we are of opinion that the orders cannot be sustained, as they were made without any inquiry into the truth or otherwise of the respective allegations of the guardian. On behalf of the respondent, the view has been pressed upon us that as the appellant has made an application for Letters of Administration to the estate of her husband on the basis of an alleged Will, she has become hostile to the infant and is consequently no longer fit to continue as guardian of his property. No information, however, is available as to the terms of the Will and we are unable on the materials before us to say that the conduct imputed to the appellant is of such a description as necessarily disqualifies her for the office of guardian. It is plain that an order of this description should not be made without some inquiry into the allegations made. It is also obvious that the matter should not remain in abeyance till the disposal of the Letters of Administration case, which, it is not improbable, may continue for some length of time. It is desirable that the question of guardianship should be settled as early as practicable.

4. The result is that this appeal is allowed and the orders of the 15th September and 19th November set aside. The case will be remitted to the District Judge in order that he may inquire into the allegations made in the application of the 6th June 1913 and determine, upon evidence to be adduced by both parties, whether the appellant should be removed from the office of guardian. In the examination of this question, her conduct as applicant in the Letters of Administration case will necessarily have to be taken into account. There will be no order as to costs of this appeal.


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