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Allahabad High Court
Manmothonath Bose Mullick vs Basanto Kumar Bose Mullick on 2 May, 1900
Equivalent citations: (1900) ILR 22 All 332
Bench: Knox, Blair


JUDGMENT

Knox, Actg. C.J. and Blair, J.

1. The plaintiff, who is the appellant before us, filed a suit in the Court of the Munsif of Allahabad, alleging that one Babu Tara Kinker Bose Mullick, who had been appointed his guardian, had not rendered accounts beyond the first year of such guardianship, that the said guardian died during plaintiff’s minority, and that “the plaintiff has every reason to believe that out of the said assets the said Babu Tara Kinker Bose Mullick misappropriated a large sum of money to his own use.” Nothing further was alleged either as to the nature, quantity, kind or manner of the misappropriation which the plaintiff believed had been made. But the plaintiff called upon the defendant, who is the son of the said guardian, to settle the accounts of the estate, to pay out of the estate any sum or sums found due upon such settlement of accounts, or if the accounts could not be settled, to pay such sum or sums as the plaintiff might succeed in proving to be due. The Court of First Instance decided that the son was bound to render an account. In appeal the District Judge held that the son could not be called upon to render accounts, and that it was no business of his to do so; that the plaintiff could call upon him to hand over any papers, account-books, etc., relating to the estate which might have come into his possession. He further held that upon such a vague allegation of misappropriation no decree could be given against the defendant. He accordingly set aside the decree for the rendition of accounts, and remanded the case to the Court below with instructions to frame an issue regarding the items believed to have been misappropriated. In appeal before us the appellant urges that as the respondent is in possession of his father’s estate, he can be held liable to render accounts, and more to account to him for the period of his father’s management. For this proposition no authority was cited to us beyond certain principles said to be found in the case of Concha v. Murrieta (1889) L.R. 40 Ch. D 543. That case related to special circumstances based upon the law of Peru. On the other hand, we have a case of this Court, namely, Rameshur Tiwari v. Kishun Kumar Weekly Notes 1882 p. 6. The learned Judges who decided that case evidently considered that the law governing a relationship of the special nature must be looked for within the four corners of the Statute which created that relationship; the same law governs the present case; and they held that under Section 21 of Act No. XL of 1858 the Judge had no power to require the heirs of a guardian to account for moneys received and disbursed by the father in the capacity of a guardian. The provisions of Section 21 are personal to the guardian himself, and refer to cases in which his certificate has been recalled for incompetency, dishonesty or some other good cause, and not where his appointment has lapsed through death. This precedent was presumably known to the Legislature when they enacted Act No. VIII of 1890, and from the words used by them in Section 41 of that Act, it seems to have been considered as the law which should prevail upon the point. The respondent has filed objections, and one of them is to the effect that the present suit would not lie. The objection is a good one and fatal to the suit.

2. We dismiss the appeal, and upon the objection taken we set aside the order of remand, and further direct that the suit as brought stand dismissed with costs in all Courts.


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