GH HASSAN Vs. QAZI AB MAJID

JUDGEMENT

(1.) THIS is a revision petition directed against the order of the Additional District Judge, Srinagar dated 15 -2 -1977. The facts that have given rise to this petition are briefly that under the Guardian and Wards Act one Mst. Bega Begum was appointed guardian of minors whose father was the land -lord of the premises of which the petitioners herein, and previous to them their father was the tenant. It is alleged that the rent deed executed by the father of the petitioners herein in favour of father of the minors stipulated that the rent of the shop shall be payable at the rate of Rs. 60/ - per month. The tenants however, deposited in the court the rent at the rate of Rs. 30/ - only per month, It is alleged that this deficiency in depositing the rent came to light after the guardian Mst. Bega Begum was discharged from the responsibility of the guardianship on the attainment of majority by the wards. During the minority of the wards no objection appears to have been raised either by the guardian or by the court itself with regard to the quantum of the amount being deposited as rent by the tenants. The minors on attaining majority applied for the discharge of the guardian which was allowed by the court of the Additional District Judge, vide its order dated 28 -4 -1976. Before the discharge of the guardian however the court of the Addl. District Judge did not ask the guardian to furnish an account of the income or losses of the properties of the minors. The court did not think it fit to go into these details at that time and on a simple application by the minors, who claimed to have attained majority, discharged the guardian without at the same time applying its mind as to whether anything further was to be done by the court or not. The wards however, on having found that the rate of rent at which the deposits had been made by the tenants was only half of the rent fixed between the parties, approached the Addl. District Judge, who had appointed the guardian, for redress. The Addl. District Judge directed the tenants to appear and submit their accounts. The tenants appeared and admitted that the rent had been deposited by them at the rate of Rs. 30/ - per month only, though it was also admitted by them that the rent deed showed that the rent per month was Rs. 60/ - They gave two reasons for depositing the rent at the rate of Rs. 30/ - per month. The first was that it was during the life time of the father of the minors that the shop under their tenancy was reduced in size to enable the landlord to meet his own requirements and it was because of that reason that even the land lord, the father of the wards accepted the rent at the rate of Rs. 30/ - per month only. The tenants alleged that the land lord and the tenants agreed to the reduction of the rent to Rs. 30/ - in view of the smaller space leased out to them. Their contention before the Addl. District Judge was therefore that the landlord himself had accepted Rs. 30/ - as rent per month and the payment per month at that rate was justified on the ground of the smaller size of the shop having been leased out to them. The Addl. District Judge not being satisfied with the objections of the tenants, ordered an enquiry in the matter and in consequence some evidence was produced by both the sides. The learned Addl. District Judge heard arguments and finally passed the impugned order directing the tenants to deposit arrears of rent within three months. This revision is directed against that order of the Addl. District Judge.

(2.) TWO questions fall for consideration in this revision. The first is whether the court of the Addl. District Judge was competent and had jurisdiction to adjudicate upon the matter before it when admittedly the wards had attained majority and the guardian had been discharged. The second question is that in case it is found that the Addl. District Judge lacked the authority and the jurisdiction to adjudicate upon the matter, whether the acquiescence by the parties in appearing before him and taking part in the proceedings could confer jurisdiction in the court of Addl. District Judge by way of acquiescence.

(3.) THE guardian and Wards Act is concerned with the appointment of guardian of the property and person of the minor, the duties and liabilities of the guardian with regard to the person and property of the minor and such like matters concerning the person and property of: the minors. It gives the authority to the guardian to look after the property of the minors in a manner as if it was his own. Whether the guardian has performed his duty properly may be gone into by the court appointing the guardian during his appointment as such, or at the time of the termination of his guardianship and his discharge from such duties. Before discharging the guardian it was the duty of the court appointing her to find out as to whether the guardian has performed her duties in accordance with law or not. As I have said earlier the Addl. District Judge was not competent to go into these details in the capacity of the count that had appointed the guardian and as the same has been done it has led to this unfortunate litigation. After discharging the guardian on the attainment of the majority of the wards, the court appointing such a guardian becomes functus officio. It could not entertain any proceedings under the Guardian and Wards Act even between ex -minors and their guardian. If the minors have any grievance against the guardian so discharged, the only recourse open for the minors to adopt is to approach the civil court for the redress of their grievance. Same is the case if the wards feel aggrieved with third parties such as the tenants in this case, Even if the deficiency in depositing the rent had come to light during the period the wards were minors, the course open to the guardian was in view of the peculiar circumstances appearing this case to file a regular suit against the tenants rather than to move the court which had appointed the guardian for any redress. The court which appointed the guardian for them could not and should not adjudicate upon disputes between the minors or the guardian on one side and the third party on the other. It was particularly so in the instant case -where the third party i.e. the tenants had raised a triable issue justifying the payment of rent at the reduced rate than originally stipulated by them. The Addl. District Judge should not have embarked upon this enquiry and passed the impugned order. He could have and should have directed the parties to approach the civil court for redress. The matter in dispute pertained to the minors and the tenants. It was not a question between the minors and the guardian or between the guardian and the court. I am therefore, of the view that the Addl. District Judge has erred in assuming the jurisdiction which did not vest in him under law.