ABHERAJ UMARKHAN MALEK Vs. DOLATSANGJI SURAJMALJI DESAI

JUDGEMENT

(1.) In Suit No. 199 of 1898 in the Court of the First Class Subordinate Judge at Ahmedabad a decree was passed against the plaintiff's father on July 23, 1898, for Rs. 36,657 with running interest at six per cent, payable by instalments in favour of defendants Nos. 2.and 3. The plaintiff's father died on February 6, 1901 without having paid off any part of the decretal amount. Thereafter, the District Court appointed the plaintiff's mother to be the personal guardian of the minor and the Collector to be the guardian of the estate of the minor. The plaintiff attained majority on February 20, 1918. Meanwhile, a darkhast was issued in 1906 and the proceedings were transferred to the Collector, so that the minor's property could be sold in execution. Eventually, the Collector qua guardian agreed to sell a portion of the minor's property for Rs. 43,000 to the father of the present defendant No. 1. Rupees 8,000 were paid in cash. Then defendants Nos. 2 and 3, the decree-holders, certified satisfaction of the darkhast

(2.) The plaintiff says that the sale by the guardian of the minor's property was contrary to the minor's interests, and prays for the following amongst other reliefs: "(A) That it may be established that the giving by absolute sale and transferring of the lands mentioned in Sen. A attached herewith, during the minority of me, the plaintiff, by the guardian of my properties (i.e.,) the respected Collector Saheb of Ahmedabad to Desai Surajmalji Jprawarsinghji, the father of the defendant "No. 1,: by the registered deed of sale, dated February 13, 14, 1912, is against the interests of me, the plaintiff, and the same may be declared null and void, the same may be reconveyed to me and a permanent injunction may be granted against the defendants Nos. 1, 2 and 3."

(3.) Now, the powers of a guardian appointed by the Court, when he is a Collector, are defined by the Guardians and Wards Act. Under Section 23: "A Collector appointed or declared, by the Court to be guardian of the person or property, or both, of a minor shall, in all matters connected with the guardianship of his ward, be subject to the control of the Local Government or of such authority as that Government, by notification in the Official Gazette, appoints in this behalf." Section 29, which limits the power of a guardian appointed or declared by the Court with regard to the mortgage or transfer by sale of immoveable property belonging to the minor, expressly excludes the Collector.