JUDGMENT
1. This is a plaintiffs’ appeal arising out of a suit for declaration that a decree obtained by the respondents against the plaintiff under the guardianship of their mother, Mt. Mahindra Kunwar, is not binding on them. It appears that the plaintiffs’ father, Niranjan Singh, executed a mortgage-deed on the 12th of October 1912, hypothecating certain properties. A suit was brought on the 15th March 1921, on the basis of this mortgage deed against the father and his sons, the present plaintiffs. The interest of the father who had transferred the property, being adverse to the minors, the plaintiffs very properly applied that the minor’s mother should be appointed their guardian. Notice was issued to her and she did not object. She appeared through a vakil on the 2nd June 1921 and accepted the appointment of herself as guardian. Subsequently, on the 11th July 1921, she filed a written statement, in which she denied the existence of any legal necessity and put the mortgagees to proof of the same. Issues were settled and the next date for hearing was the 24th August, 1921, which was, on the 25th July 1921, altered to the 16th November 1921. Till the 10th November, 1921, Mt. Mahindra Kunwar took no steps, whatsoever, to summon any witness on behalf of the minors. On that date an application was put in on her behalf, not through the pleader who had appeared first for her, but through a new pleader, stating that she had been ill nearly two months and should be relieved of her duties as guardian. No affidavit was filed in support of this application to satisfy the Court that she was really ill, nor was any medical certificate produced. The learned Judge was not satisfied that this was a bona fide application; he considered the circumstances of the case and came to the conclusion that the application had been made merely to cause delay in the case five months after she had been appointed as guardian of her own sons. The learned Judge, therefore disallowed the application. No further application was made on behalf of the guardian for adjournment of the case in order to enable her to summon witnesses, or for giving any particular instruction to the vakil. The case was disposed of on the date fixed. The mortgagees led evidence, both oral and documentary, to prove the existence of legal necessity. The learned Judge accepted that evidence and decreed the claim. Mt. Mahindra Kunwar took no steps to apply for a review of the judgement, nor did she take any steps to prefer an appeal against the decree which had been passed against the minors.
2. A declaratory suit has now been instituted on behalf of the minors through Kundan Singh, their paternal uncle. Mt. Mahindra Kunwar has been examined in this case, and her statement shows that over and above the assistance and help which she might have got from her own husband, who was just as much interested in protecting the minors’ interests out of Court as anybody else, she had the assistance of two general attorneys; Jagat Narain and Ram Charan, who used to look after her own cases as mukhtar-i-khas in Court. These mukhtars are even now looking after the case on her behalf and Jagat Narain has been fling applications and affidavits in this case. She appears to belong to a respectable family and had several maid-servants as well as 5 or 7 other servants to attend on her. Having regard to all these circumstances it is impossible to believe that, as she was a pardanashin lady, she could not have the help of qualified persons who could defend her minor sons’ interests as pairokars. The fact that no attempt had been made to summon witnesses for a very long time suggests that the Court was right in thinking that the application was a mere dodge to gain further time and cause delay. Her statement that she was ill is also difficult to believe. Her story is that she had an attack of rheumatism some 15 years ago and has been suffering off and on from this disease and that she had a severe attack 2 1/2 months before her application. She, however did not put forward any such excuse when she was appointed guardian.
3. The learned advocate for the appellants contends that when Mt. Mahindra Kunwar expressed her desire to retire from the guardianship, it was the duty of the Court to allow her to retire, and inasmuch as the Court refused to do so, it committed an irregularity. We are unable to accept this contention. Under Order 32, Rule 11, Civil P.C.,
where the guardian for the suit desires to retire… the Court may permit such guardian to retire, or may remove him, and may make such order as to costs as it thinks fit.
4. That rule makes it quite clear that it is not open to the guardian to retire at his own sweet will without the permission of the Court. It is a matter of discretion for the Court which, having regard to all the circumstances of the case, may permit the guardian to retire and may pass such order as to costs as it thinks fit. The matter was therefore discretionary. The Court did go into the circumstances of the case and refused to grant the permission. Under the circumstances it is difficult to hold that it committed an irregularity.
5. The learned advocate relied on Sub-clause (2), Rule 11. But that sub-clause has no application, because it directs the Court to appoint a new guardian when a former guardian has retired, died or has been removed. The Sub-clause (2) does not give any substantial right to guardians to retire at their own will. Relieance has been placed on the case of Janqi v. Sunder AIR 1922 All 416. That case on its facts was a very special one. A suit had been brought for restitution of conjugal rights against a young woman, who was first alleged by the plaintiff himself to be a major. He then changed his mind and treated her as a minor and proposed to appoint a relation of her as her guardian ad litem. A notice was issued to the proposed guardian, but was never served on him personally. His views on the subject were never definitely ascertained. An order appointing his as guardian was passed on the 9th March 1925, and as soon as the guardian came to know of it, he appeared in Court on the 13th March and protested and stated that he did not wish to act as guardian. In spite of the fact that the notice was not served on him personally and in spite of the fact that his views had not been definitely ascertained and he came to the Court to express his refusal, the learned Munsif refused to permit him to withdraw from the guardianship. The results was that he refused to act, and an ex parte decree for restitution of conjugal rights against the young woman was passed in favour of the plaintiff. It was on these circumstances that a learned Judge of this Court thought that the order passed by the Munsif refusing to grant permission to the guardian ad litem to withdraw was not justified. The language employed in the judgment must be understood in relation to the facts of that case.
6. In the present case we are satisfied that there was no good ground for Mt. Mahindr Kunwar to withdraw from the guardianship of her own sons.
7. We also cannot believe that the minors have been really prejudiced. In the previous case, although proceedings were ex parte both oral and documentary evidence was led to prove legal necessity, which satisfied the Court. If the evidence was insufficient, the mother would have certainly taken steps to prefer an appeal from that decree. It is also difficult to believe that the father of the minors, who would be interested in their welfare, would also not have taken some steps. Having regard to these circumstances, we find it difficult to differ from the view taken by the learned Subordinate Judge, and we dismiss the appeal with costs, including fees in this Court on the higher scale.
