SHUJAUDDIN Vs. SHAMSUDDIN

JUDGEMENT

(1.) THIS First Appeal is directed against an order of the Court of the First Additional District Judge, Bijnor, rejecting an application made by the appellant for a direction to the respondent, who was the guardian of his person and property, to submit an account of the appellant's property and its income, and to deposit the same in Court as also to deliver all the properties to the appellant who had attained majority. The application purports to have been made under Section 41(3) of the Guardians and Wards Act, 1890, in Case No. 20 of 1963 of the court of the District Judge, Bijnor. It bears the date 1st September, 1975 but it appears to have been filed on the 3rd September, 1975. Case No. 20 of 1963 of the Court of the District Judge, Bijnor was the number at which the respondent's application for his appointment as the guardian of the person and property of the appellant was registered. The respondent was appointed guardian of the person and property of the appellant by order dated the 25th May, 1963 of the Court of the District Judge, Bijnor. The order contained the direction that he shall manage the minor's property as a prudent man, and shall not transfer any portion of it without express permission of the court, and shall submit an account of the income and expenditure of the minor's property on the 1st November each year. The application giving rise to the present appeal stated that the respondent was appointed guardian of the appellant's property of which details were annexed to the application for his appointment as the guardian that the respondent was appointed guardian by order dated the 30th May, 1963 and was managing the property, that he was required to submit account and deposit the income, but he failed to submit any account of income or profits, and that the income from the property was not less than Rs. 2,000/ - per year. It was alleged that the property remained in the respondent's possession since 1963, and he must submit his account. In the order under appeal, the learned Additional District Judge held that the remedy of the appellant lay by way of a regular suit and not by way of the application made by him, inasmuch as the respondent had claimed that there was no balance of any income of the appellant's property with him. The learned Additional District Judge held that under Section 34 of the Guardians and Wards Act, 1890, he could pass orders only in respect of accounts admitted by the guardian to be due from him or those that were due from him on accounts submitted by him. At the outset, there was a preliminary objection to the competence of the appeal, inasmuch as Section 47 of the Guardians and Wards Act does not provide for an appeal from an order passed under Section 34 or under Section 41. I may, in this context, observe that the learned counsel for the appellant stated categorically that the appellant had invoked the jurisdiction of the District Court under Section 41(3) of the Guardians and Wards Act, after the cessation of the guardianship when the appellant attained majority. Learned counsel could not, therefore, dispute the position that an appeal from an order passed on an application made under Section 41(3) of the Guardians and Wards Act was not competent. He accordingly requested the court to hear the appeal as a revision under Section 115 of the Code of Civil Procedure. Since there was no objection to the Court's doing so and since it appears to me that the impugned order of the court of the Additional District Judge did not call for any interference, I proceeded to fully hear the matter on the merits also, rather than to first allow the appellant to formally convert the appeal into a revision and then to hear the matter finally.

(2.) AFTER the order, dated the 25th May, 1963, appointing the respondent as the appellant's guardian, a statement of account appears to have been filed on the 23rd November, 1963 which was ordered to be placed on the file by the court's order dated the 12th March, 1964 after seeing the office report. The first proceeding taken thereafter was the application made by the appellant on the 3rd September, 1975, under Section 41(3). The application was made more than three years after the appellant attained the age of twenty one years which is the age of majority in case of minors whose guardians are appointed by the court. The first reply to the appellant's application, that was given by the respondent, is dated the 7th February, 1976, in which it was stated that the house property and the open piece of land did not yield any income and possession over agricultural land had already been delivered by the minor appellant's mother under a contract to Nayaz Uddin and others even before the respondent was appointed guardian, and the appellant had recently sold it away; that the respondent did not earn any income from the agricultural land, and, on the other hand, out of love and affection for the appellant, he had constructed nine shops on the appellant's land, on which rupees thirty to forty thousand had been spent after selling property: that out of these nine shops, two were constructed about five years ago another two were constructed about three years ago and the remaining five were constructed about one and a half years or two years ago, and the rent notes of the same had been executed in the appellant's favour who was recovering the rent of the shops himself; and that the respondent had not received any income of the appellants property and, therefore, he had not kept any account and he may be excused from furnishing the same. On the orders of the court, statements of account were furnished by the respondent showing that the excess of the expenditure over the income from the years 1964 to 1971 amounted Rs. 6709/ -, besides the minor's maintenance, the expenditure included Rs. 7000/ - on construction of shops which the respondent had found by selling his own land. Objection were filed on behalf the appellant in writing dated the 29th May, 1976, to the account submitted by the respondent. An application, dated the 7th August, 1976, was thereafter made by the appellant for a direction to the respondent to furnish a detailed and true account of the income from the groves and the land which were said, to have been omitted by the respondent from the account. It was in this back -ground that the learned District Judge held that the proper course for the appellant was to file a regular suit.

(3.) MR . Iqbal Ahmad on the other hand relied upon several decisions referred to in the judgment of the learned Additional District Judge, namely, Abdul Rehman v. Smt. Husn Jahan : AIR. 1937 Oudh 463, Ram Lal Sahu v. Tan Singh Lal Singh : AIR. 1952 Nag. 135, Misra Rang Nath v. Misra Murari Lal : AIR. 1936 All. 179, and Jogappar v. Harunakha : AIR. 1952 Mad. 498, and urged that the jurisdiction of the district court under Section 41(3) was a limited one and was of a summary nature. It did not contemplate a determination of disputed questions of fact about the things or the property which came into the possession of a guardian and remained with him on the cessation of the guardianship. It applies only to that property or money or things which the court finds either on admission or on summary inquiry to be in possession or control of the erstwhile guardian, on the cessation of the guardianship, either on the basis of the accounts furnished by the guardian or an admission of the guardian. Mr. Iqbal Ahmad also referred to the fact that the application was made more than 3 years after the cessation of the guardianship, that is to say after the expiry of the limitation for a suit for compelling a guardian to account for a minor's property or to restore it to the minor in case he was found to be in possession. He relied on Kisandas Laxmandas Gujar and others v. Godavaribai Govindadas Gujar and others : AIR 1937 Bom. 334, in this connection in which it was held that a minors suit against the guardian for account filed more than three years after attaining majority is barred by limitation notwithstanding Section10 of the Indian Limitation Act, 1980.