GODOOBAI Vs. JANABAI

JUDGEMENT

(1.) THE appellant is the widowed mother of her minor son Narayan and the respondent is her mother-in-law. While the appellant is a young woman of about 23 years of age, the respondent is a very old woman over 55. It appears that the appellant has a brother Shankar Rao whose word reigns supreme in the management of the affairs of the minor's estate. Naturally, Janabai the grandmother of the minor resents it, and, consequently, desires that the minor's estate should no longer remain under the management of her daughter-in-law Godubai. Various acts of alleged waste and mismanagement by Shankar Rao which led to the institution of these proceedings for the appointment of a proper guardian for the minor's property have been set forth in the application.

(2.) SOON after this application was made by Janabai, the District Judge was moved for appointing a receiver to take charge of the minor's estate, pending the disposal of the application for appointment of guardian. The District Judge made an order appointing Mr. B.C. Thakar, Pleader, as a temporary receiver. It is against this order dated 3rd November 1928 for the appointment of the receiver that the appellant Godubai has come up in appeal to this Court contending that the lower Court acted wrongly and without jurisdiction in passing the same.

(3.) THE respondent raises a preliminary objection that the order for the appointment of the receiver heing one purporting to be passed Under Section 12, Guardians and Wards Act, there is no appeal against it, Under Section 47, of the said Act, and that the present appeal should, therefore, be thrown out as incompetent. In answer to this contention the appellant's learned counsel urges that the order for the appointment of the receiver must be deemed to have been passed Under Order 40, Rule 1, Civil P.C., which must, by virtue of Section 141 of the Code, be read as applicable to proceedings under the Guardian and Wards Act, and that, as Order 43, Rule 1, Clause (s) expressly provides for an appeal against an order passed Under Order 40, Rule 1, Civil P.C., the present appeal is competent. Reliance is placed by the appellant in In re Bai Janabai [1912] 36 Bom. 20 and Chandra v. Wati Jagan Nath Singh A.I.R. 1925 Lah. 469. I have gone through these cases, and I think that, since, an application Under Section 12, Guardian and Wards Act (8 of 1890) is a proceeding in a Court of civil jurisdiction, it is competent to the District Judge, to appoint a receiver in such a proceeding, Under Order 40, Rule 1. The learned Judge who decided the Bombay case has given very good reasons, at pp. 26 and 27, in support of his view that a receiver could be so appointed Under Order 40, Rule 1 in proceedings under Guardian and Wards Act. The case relied on by the respondent, viz. Chandra Sahai v. Durga Prasad A.I.R. 1924 All. 682, leads indirect support to the view that the present appeal is competent, because, in that ease also, it was laid down that, no right of appeal can be claimed by virtue of Section 141, Civil P.C., when Order 43 of the Code makes no provision for such an appeal. Here, as we know, Order 43, Rule 1, Clause (s) makes express provision for an appeal against an order pussed Under Order 40, Rule 1. For these reasons I overrule the preliminary objection, and hold that, the appeal is competent. In this view of the case, it is not necessary for me to treat this appeal as a revision, and deal with it, Under Section 115, Civil P.C.