TULASIDASS GOVINDJEE Vs. MADHAVADASS LALJEE

JUDGEMENT

(1.) I am clearly of the opinion that this application is incompetent, The minor for whose person and property, the guardian had been appointed in this matter is now admitted to be dead and the petitioner now before me claims under an assignment from the son of the deceased 2nd respondent and I am told that the 2nd respondent's son bad a right so to assign a share in the property, because it is alleged that on the death of the minor, the son of the 2nd respondent became one of the reversionary heirs to the estate. When the application came on for hearing before me last week, I intimated to the learned vakil for the petitioner Mr. Jayarama Iyer, that I had my doubts whether such an application could be maintained under the Guardians and Wards Act after the death of the minor. I have now been referred to the case of Nataraja Pillai V/s. Subbaraya Pillai (1918) M.W.N. 440. In that case, Oldfield and Sadasiva Aiyar JJ., held that the words "for any cause" in Clause 3 of Section 41 of the Guardians and Wards Act were wide enough to cover the case of the death of a minor, though such a contingency is not contemplated or provided for in the previous portion of that section. With all respect, I am constrained to state that I very much doubt the correctness of that decision but being a decision of a bench of this Court I cannot regard it as anything but binding on me. But, for the purpose of this application, it is unnecessary for me finally to hold whether or not the view of the law as set out in that decision is correct. In that case, what the learned Judges said was that the section applied and it was within the discretion of the lower Court to make, or to refuse to make, an order of the kind referred to therein. Even though the section might apply to cases of the death of a minor, still, I am clear in my mind that the section is applicable only to simple cases where there can be no doubt whatever about the succession to the minor and about the items of property which belong to the minor or the accounts relating to the management of the estate. When, however, there is a dispute relating to succession or the likelihood even of a dispute as to succession, in my judgment, the Court has no powers under the Guardians and Wards Act to seek to determine the succession to a deceased minor and thereupon make any orders for granting delivery of possession of property. Further the prayers in this application are far from being identical with the reliefs asked for apparently in the application with the order on which the learned Judges were dealing in the case in the Madras Weekly Notes. The section clearly speaks merely of orders being passed for the delivery of any property in the possession of the guardian or under his control and also for the delivery of any accounts in his possession or control. The prayers in this present application are for rendering of the accounts. The phrase "rendering of the accounts" means an order against the guardian for an account as in a suit for an account and cannot possibly mean the delivery of account books alone. It is also admitted that O.S. No. 2 of 1924 on the file of the Additional Subordinate Judge of Coimbatore is now pending to determine the succession to the minor's estate. In the face of the admitted fact that the succession to the minor's property is under litigation, or in other words, when the question is pending before another Court of competent jurisdiction for the purpose of determining the person who would be entitled to the property it is impossible to accept the contention that the Court that appointed the guardian of the person and property of the minor would have jurisdiction to make such an order as is asked for.

(2.) I am also surprised at prayer No. 2 for the removal of the guardian from the office when, ex concessu, his powers as guardian have ceased under Section 41 of the Guardians and Wards Act and that is the very basis of the contention before me.

(3.) The third prayer is still more strange, that the Court should appoint a fit and proper person to be in charge of the estate. I certainly think that a Court acting under this enactment is really functus officio when the minor dies. Any disputes or rights with regard to the property of the minor should be litigated in the ordinary tribunals of the country. It may be that in simple cases where no contest arises or can arise, the Court having regard to the fact that it appointed a particular person as guardian and entrusted him with the management of the property may make simple orders for the purpose of the delivery of the property. But I do not think even such a provision can be extended to include the determination of doubtful or disputed rights to the property of a deceased minor.