JAYSINGH DEVSINGH Vs. PRATAPSINGH GOPALSINGH

JUDGEMENT

(1.) This appeal, which is from the First Class Subordinate Judge of Nasik, raises a short point but one which is not free from difficulty. The appeal is against the dismissal of the appellant's application for probate of the will of his daughter Lilabai. Lilabai was born on 3 June 1916, and the question is whether before she attained the age of eighteen on 2 June, 1934, a guardian of her person or property had been appointed pursuant to the Guardians and Wards Act, 1890. If so, then her will dated 28 February 1936, would be of no effect, as under Section 3, Majority Act, 1875, she would not attain her majority until twenty-one, and as a minor she would be incapable of executing a valid testamentary disposition. On the other hand, if no guardian was in fact appointed or declared, she would attain her majority at eighteen and her will would be a valid disposition of her property. At all material times Lilabai's only property consisted of Rs. 10,000 payable under an insurance policy on the life of her husband who had previously died. On 15 February 1932, the appellant applied to the District Court at Nasik to be appointed her guardian for the very purpose of being able to give an effectual receipt to the insurance company. On 24 April 1933, the following order was made by the District Judge on that application: The applicant, father, is appointed guardian of his minor daughter's property on his furnishing security in the amount of the insurance policy.

(2.) In fact the appellant was unable to find the necessary security, with the result that on 10 April 1935, the District Judge made the following order: The father of the minor girl who was appointed guardian of her property has stated that he is unable to furnish security in the amount of the property. Therefore the order is cancelled and I appoint the Deputy Nazir as guardian of the property of the minor.

(3.) But the crucial date was past, for Lilabai had completed her eighteenth year. The point for decision rests on whether the order of 24 April 1933, operated to appoint the appellant as guardian of Lilabai's property. This question is not without authority in the English and Indian Courts, and in approaching it assistance is to be gained by considering the origin of the form of order which was in fact made. The Courts of Chancery in England have been accustomed to require security in certain cases from those to whom the collection of other people's money is entrusted. Forms 3 and 5 in Seton's "Judgments and Orders," 7 Edn., Vol. 1, pp. 726-727, should be compared. Form 3, which bears striking similarity to the form of the order of 24th April 1933; in this case, is headed: "Order appointing Receiver by name (upon giving security) of Real and Personal estate," and is as follows: "This Court (or the Judge) doth order that A of etc., be appointed upon giving security to receive etc..." Form 5 is headed: "Order appointing Receiver by name, and to act before security given," and the form is as follows: This Court doth hereby appoint A of etc...And it is ordered that the said A do, on or before the... day of...19... give security as such receiver to the satisfaction of the Judge.... Whereas Form 5 is immediately operative, an order drawn in the terms of Form 3 needs a subsequent order of the Court which is to be found at p. 726 and is Form 4, and is as follows: Upon the application by summons, dated etc., of etc., And A, hereafter named, having given security by entering into a recognizance dated etc., and a bond of the same date, together with etc., as his sureties, which has been approved by the Judge and duly filed. The Judge doth, pursuant to the said order dated etc., hereby appoint A of etc., to receive.