FAQIR MOHAMMAD Vs. BABU BRIJ NARAIN MAHROTRA

JUDGEMENT

(1.) This is an appeal arising out of a guardianship matter. The appellant Faqir Muhammad was appointed guardian on his own application of a minor Muhammad Islam. Along with the application for guardianship he filed a list of the property said to belong to the minor and that list did not contain a house in Cawnpur which has been the subject-matter of much dispute. Subsequently he was removed from the guardianship and the respondent was appointed guardian of the minor. On the 28 of September 1922 the respondent put in an application to the District Judge praying that the former guardian had deliberately omitted from the list the house aforesaid of the rent of which he had given no account whatsoever. We have had the record examined and it is curious that without any formal enquiry having been made as to the title to this house and in spite of the fact that there is a third party Musammat Janno who rightly or wrongly is asserting her title to it, an order was passed on the 8 of February 1923, that the former guardian should hand over possession of the said house to the new guardian and that he should pay over the rent which he collected in respect of it. This order apparently was passed on the supposition that inasmuch as the former guardian was actually in possession of the house he was bound to account to the minor.

(2.) When an amin was deputed to go and hand over possession of the house to the new guardian he was resisted by Musammat Janno who had got the house locked from inside. Formal delivery of possession, therefore, could not be effected. The appellant has also not made good any rent which he had collected from the tenants though professedly not on behalf of the minor. The learned Judge accordingly has fined the appellant for his disobedience of the previous order. The date of the order given in the judgment under appeal is wrong, the correct date being the 8 of February 1923.

(3.) It is true that so long as an order passed by a competent Court with jurisdiction stands any disobedience of it would be an offence under Section 45 of the Guardians and Wards Act. The mere fact that there was some irregularity in passing it would not be a good defence. But as we find in this case that the previous order directing the appellant to deliver possession of the house to the new guardian and pay over the rents realized by him had been passed without any enquiry into the matter we can revise it. It is not suggested by the learned Vakil for the respondent that Faqir Muhammad entered into possession of the house originally on behalf of the minor nor is it anywhere suggested that at any time, during the period of his guardianship he admitted that he was holding possession over it on behalf of the minor. The attitude of Faqir Muhammad all along had been that the house did not belong to the minor. It, therefore, seems to me that Faqir Muhammad should not have been compelled to hand over possession of the house to the new guardian or to pay over its rent when he was not put in possession of the house on behalf of the minor. If the house really belongs to the minor it will be open to the new guardian to take legal steps to recover its possession. The learned District Judge cannot in the proceedings under the Guardians and Wards Act compel the former guardian to hand over possession of the house which he does not admit to belong to the minor and over which he never obtained possession as guardian of the minor. The order previously passed had, therefore, been passed with a material irregularity in the exercise of jurisdiction inasmuch as there had been no proper enquiry made at all. As that order was not appealable it is open to the High Court to set it aside on the revisional side. I am, therefore, of opinion that it must be held that the previous order was passed with material irregularity and is not binding on the appellant Faqir Muhammad and that, therefore, his conviction for disobedience of it was not a proper one. It seems to me that the question of the title to the house should be litigated in a regular suit brought by the new guardian, if so advised, against Faqir Muhammad or Musammat Janno or whoever else may be in possession. I would, therefore, allow this appeal and setting aside the order of the District Judge dated the 9 of August 1923 and conviction of the appellant direct that the fine, if paid, should be refunded.