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Bombay High Court
Motilal Kalyandas vs Bai Ochha on 16 December, 1908
Equivalent citations: 1 Ind Cas 338
Bench: B Scott, Batchelor


1. In this case one Motilal Kaliandas has applied to this Court under Section 622 of the Civil Procedure Code, 1882, on the ground that an order has been made against him by the District Judge of Ahmedabad for the payment of Rs. 2,748. without jurisdiction.

2. Motilal Kaliandas was appointed guardian of the property of one Fulchand in November 1904, and early in 1905, owing to the death of the sole surviving partner of a firm in which the minor was interested, he applied to the Court for sanction to appoint a gumasta to manage the firm’s business; that application was sanctioned, and a man named Narmadashankar was accordingly appointed gumasta on the 13th of February in that year.

3. In August 1906, the minor Fulchand died and on his death the guardianship of Motilal terminated, but there was no adult legal representative to recover the estate in the hands of Motilal.

4. Accordingly a fresh guardian had to be appointed of the minor widow Lalita who had survived Fulchand, and the choice of the Court again fell upon Motilal as guardian. This appointment of the guardian of Lalita was made on the 15th of November 1906.

5. It appears that Narmadashankar during all this period continued as gumasta of the firm. In July 1907 Motilal discovered that Narmadashankar had been forging signatures on dividend warrants and getting payments for his own use of dividends upon shares which, formed part of the property of the deceased Fulchand, and Motilal then obtained from the Court sanction to prosecute Narmadashankar but the latter absconded and the sanction to prosecute was consequently not made use of.

6. On the 20th of December 1907, the District Judge appointed the Deputy Nazir of his Court as guardian in place of Motilal. The Deputy Nazir reported that Rs. 2,748 had been lost during the guardianship of Motilal, of which Rs. 1,507-9-0 was during Fulchand’s life-time and the balance during the guardianship on behalf of Lalita.

7. The District Judge then referred it to the Second Class Subordinate Judge to determine whether the applicant had discharged his duty under Sections 27 and 37 of the Guardians and Wards Act, and the Second Class Subordinate Judge reported against Motilal.

8. Motilal took exception to the report. The District Judge heard the exceptions and framed issues, and in the result has ordered the applicant to pay to the estate all the money lost by the fraud of Narmadashankar within one month.

9. It is said on behalf of the opponents that this order was justified by the terms of Section 41(3) of the Guardians and Wards Act, and if not by the terms of that section, then by the terms of Section 9 of the Bombay Civil Courts Act of 1869.

10. Now Section 41(3) of the Guardians and Wards Act is a section providing for a very summary procedure which can only be applied without hardship in cases where there is no room for doubt as to the guardian being in possession of certain property of the ward. It provides that “when for any cause the powers of a guardian cease, the Court may require him or, if he is dead, his representative to deliver, as it directs, any property in his possession or control belonging to the ward……..,” and Section 45, which is a section dealing with the penalties for contumacy, provides that if a person, who has ceased to be a guardian, or the representative of such a person, fails to deliver any property or accounts in compliance with a requisition tinder Section 41(3), the person, guardian or representative shall be liable, by order of the Court, to fine not exceeding one hundred rupees, and in case of recusancy to further fine not exceeding ten rupees for each day after the first, during which the default continues, and not exceeding five hundred rupees in the aggregate, and to detention in the civil jail until he undertakes to deliver the property which he has been ordered to hand over.”

11. It is obvious, we think, from these provisions that the powers conferred on the Court are only applicable in cases in which there is no room for reasonable doubt. We, therefore, hold that Section 41(3) must be read according to the ordinary meaning of the words used, and that when the section says that the Court may require a guardian to deliver any property in his possession or control, “it means the property in his actual possession or control, and does not include all property for which he may by the application of the law of principal and agent be made legally responsible.

12. Now in the present case, Motilal has been made responsible for property which was misappropriated by Narmadashankar by frauds both upon the estate and upon the companies in which the estate was interested as shareholder.

13. The applicant contends that he is not liable under the circumstances for the act of Narmadashankar; that Narmadashankar was appointed with the sanction of the Court; and that he, Motilal, is in no way responsible for what has happened.

14. That raises a question of fact and law which cannot conveniently be decided in a summary way. The remedies for contumacy and recusancy provided by Section 45 are altogether inappropriate where a bona fide question, such as this, has arisen.

17. We, therefore, think that the Court had no jurisdiction in the circumstances of the case to order the payment of the money under Section 41(3) of the Guardians and Wards Act.

18. Then it has been suggested in argument that because Section 9 of the Bombay Civil Courts Act gives the District Judge an administrative control over the Courts and officers of the Courts subordinate to him, therefore he can decide a difficult judicial question such as this in a summary manner and without any right of appeal being allowed to the person proceeded against. It is an argument which does not commend itself to us. In our opinion the section just referred to lends no support to the procedure followed in this case;

19. For these reasons, we set aside the order of the District Judge. In so doing we do not in any way decide the question which arises with regard to the defalcations of Narmadashankar and it has not been contended on behalf of Motilal that he is not liable to a regular suit in which the question of his liability can be properly determined. His only complaint has been that he should not be condemned to make payment of this sum without the ordinary right of appeal given to civil litigants.

20. With regard to costs, if any suit is filed against the applicant within four months for the recovery of the sums lost to the estate by Narmadashankar’s fraud, the costs will abide the result of that suit. If no such suit is filed within the four months, the applicant may apply to this Court for an order for costs.

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