GOPALAKRISHNASWAMI NAICKER Vs. VSRINIVASA AIYANGAR

JUDGEMENT

(1.) This is a revision petition against the order of the District Judge of Ramnad on an application under the Guardians and Wards Act for the assignment of a security bond executed by a guardian and sureties. under Section 34 (a) of the Act. That section shows that the guardian and sureties engage themselves duly to account for what may be received in respect of the property of the ward. The learned District Judge rejected the petition holding that as the ward had attained majority he had no jurisdiction to act under Section 35 and for this position he relies upon the decision in Subbarami Reddi V/s. Pattabhirama Reddi (1926) 51 MLJ 249 : ILR 50 M 80 now also reported in (1926) ILR 50 M. 80. In that case the guardian was discharged after filing his accounts in court and it was held that the Court had no jurisdiction to hold an enquiry and ascertain what amount is really due by the guardian. The application was filed under Section 41 and in the course of the judgment it is observed that a court acting under Section 41 (4) was not bound to make the declaration mentioned in Section 41 (4). This is true. But there is the further observation: The whole scheme of the Act seems to provide for matters of this kind, i.e., disputes between the minor and the guardian, by way of suit. During the minority Secs.35 and 36 provide for suits being filed by a next friend of the minor in case of misconduct on the part of the guardian, and there can be no doubt that, when the minor attains majority, he can bring a suit against his guardian. There being no provision at all for any enquiry into accounts by the court, I think the opinion expressed by the Calcutta High Court is the correct one. We are not able to agree with everything that seems to be implied in these sentences. Now, taking Secs.35 and 36 for consideration, we first observe that Section 35 deals with a case where an administration bond was taken and Section 36 where such a bond was not taken. In the case of Section 36 we have got these words: ...Any person, with the leave of the court may, as next friend, at any time during the continuance of the minority of the ward, and upon such terms as aforesaid, institute a suit against the guardian...

(2.) It is clear that this section relates only to cases where the ward continued to be a ward. But when we come to Section 35 we have not got words like "next friend and during the continuance of the minority of the ward". On the other hand, the language in Section 35 except the very last clause is perfectly general and can apply to a case where the ward was a minor or to a case where the ward has ceased to be a minor. The section was intended to cover both the cases and the last clause " shall be entitled to recover thereon as trustee for the ward in respect of any breach thereof" no doubt applies only to a case where the bond was assigned to some person during the minority of the ward and may not strictly refer to a case where the bond was assigned to the ward after he attained majority. Even then it is not that it produces any anomalous result but it only looks like a surplusage. There is nothing in Section 35 making it inapplicable to the case of a ward attaining majority and applying for an assignment of the bond. The court below also relied on the judgment in Krishna Chettiar v. Venhatachalapathi Chettiar (1918) ILR 42 M 302 : 36 MLJ 114. In that case all that was decided was that there is no right of suit as for breach of a condition unless there is a preliminary order of the court. If the matter rested there that case would have given no difficulty, but there are some further observations that the preliminary order should be an order to exhibit accounts or to pay the specified balance and at page 309 we have got the following observation: In the case of bonds under the Guardians and Wards Act the proper course appears to be to get an order to pay against the guardian under Section 34 (d) or a decree against him, and, if he fails to satisfy the order or decree, then to sue the sureties in respect of this breach as to which there will be no defence.

(3.) This observation is strictly obiter dictum and perhaps was not necessary for the decision of the case. Anyhow we are not able to agree with this observation. It has been decided in Hari Krishna Chettiar V/s. Govindarajulu Naicker (1925) 50 MLJ 273 that there can be no order to pay under Section 34 (d) except in respect of the amounts that appear due according to the accounts filed by the guardian. So there is some inconsistency between the recent decision and these observations in Krishna Chettiar V/s. Venkatachalapathi Chettiar (1918) ILR 42 M 302 : 36 MLJ 114. In the present case the District judge says: An assignment of the bond can be made only on being satisfied that the engagement of the bond has not been kept up. This is true; but to be satisfied that the engagement of the bond has not been kept up, the court has to make some kind of prima facie enquiry and the ward should not be referred to a regular suit for the purpose of satisfying the court that the engagement has not been kept up. All that Section 35 says is: On being satisfied that the engagement of the bond has not been kept up.