JAGAT BAI Vs. BABU GAJADHAR UPADHYA NAZIR

JUDGEMENT

(1.) This is an appeal from the order of the District Judge of Bhagalpur removing the guardian owing to her mismanagement and getting involved in difficulties. The nazir has been appointed in her place for the property and has been directed to sell all properties of the minors and convert them into cash, which after paying off all debts, may be converted to G.P. Notes and the interest given as maintenance for the minors.

(2.) With this extraordinary order, which is wholly without jurisdiction and ultra vires, we shall deal presently. Bat the first question to decide is whether a guardian can be removed on the materials before us. Under Order XXXII the loans which she was said to have taken without sanction were condoned, certain other loans were sanctioned and she was warned that she would be removed if she contracted any further unauthorized debts. Now there is nothing to show that between the passing of Order XXXII and the present Order she has transferred or disposed of any portion of the minor's property without the sanction of the Court. Section 39 says--The Court may, on the application of any person interested or of its own motion, remove a guardian appointed or declared by the Court for any of the ten causes which are mentioned in the section. Now the only one of those causes which appears to apply to this case is (b) "for continued failure to perform the duties of her trust." But it was obviously the duty of the Court, as it is the duty of all Courts when they act upon their own motion against the interest of any person subject to their jurisdiction, to issue a Rule informing the lady what there was against her and upon what evidence or information it was based and calling upon her to show cause why she should not be removed for the reason given in the law. Nothing of the kind is done. We are not informed that the lady was asked to go to Court or to make any answer to the allegations which are now made in the order; nor does it even appear that any such allegations were ever made to her knowledge or in her presence.

(3.) The order removing the guardian is, therefore, bad and must be set aside.