Gnanambal Ammal vs S. Vadivelu Pillai and Others

Sundaram Chetty, J.—This Civil Miscellaneous Appeal has been preferred by Gnanambal Ammal, the mother of the minor Subbaraya

Chetty, who was also appointed as the guardian of the person of the minor. By way of caution, a Civil Revision Petition is also filed. The order

appealed against was passed by the District, Judge of South Arcot on a petition filed by S. Vadivelu Pillai (1st respondent) praying that a loan of

Rs. 30,000 may be ordered to be given out of the minor''s funds on a first mortgage of Immovable properties. The Court issued notices to the

personal guardian, the outstandings guardian and the Immovable properties guardian of the minor in respect of that application. All the guardians

stoutly opposed the petition, on the ground that the proposed investment is neither safe nor calculated to promote the best interests of the minor in

view of the present economic depression in the country. The learned District Judge made an investigation and came to the conclusion that the

apprehension of the guardians was not well founded, and ordered the grant of the loan by according his sanction reserving the question of

settlement of the details regarding the terms of the mortgage to another date. Against this order, the present appeal and the revision petition have

been filed by the personal guardian.

While the learned Advocate for the appellant wanted to urge a technical objection that a petition of this kind by a stranger desiring to secure a

loan of the minor''s money is not maintainable u/s 43 of the Guardian and Wards Act, he was met with a counter-objection, that this appeal itself is

incompetent. Both sides have addressed elaborate arguments on these points, but, in our opinion, the real question arising in this case is in a narrow

compass, and therefore we confine our remarks to it. The petition in question was filed by Vadivelu Pillai under Rule 21 of the Rules framed under

the Act. When the objection that he had no locus standi was raised, he stated in his reply affidavit that his application was under Sections 32 and

43 of the Act. There is no doubt that the Court purported to act u/s 43 on this application, for it directed the issue of notices to all the guardians of

the minor, as required by Sub-clause (3) of that section, with a view to hear their objections, before passing an order on the petition. Moreover,

the order passed on the petition is substantially one coming within the purview of Sub-clause (1) of Section 43. An order sanctioning the loan and

directing the issue of it is doubtless one to be carried out by the act of the outstandings guardian. In continuation of the said order passed on 30th

August, 1933, an order was passed on 2nd September, 1933, directing that guardian to get the document drawn up. It means that he must receive

the mortgage bond after its execution and registration and draw the sum and pay the consideration for the mortgage. That being so, the order is

one regulating the conduct or proceedings of the guardian appointed by the Court, as contemplated in Section 43, against which an appeal lies to

the High Court u/s 47, Clause (1) of the Act. It is argued by Mr. Krishnaswami Aiyar for the appellant that it is open to him in this appeal to show

that the petitioner had no locus standi to make an application u/s 43, Clause (1), and the Lower Court was wrong in entertaining it and proceeding

with its investigation, without dismissing it in limine. Though the application was not maintainable, the Court, however, purported to decide the

question u/s 43(1) treating it as one under that section, and therefore the party against whom the order was passed would be entitled to appeal,

and also raise the question of the competency of the petitioner to apply under that section (vide Latchnianan Chetty v. Ramanathan Chetty ILR

(1904) Mad. 127 : (1904) 14 M.L.T. 436).

According to Section 43(1) of the Act, the application has to be made by any person interested. This evidently means a person interested in the

minor. But the petitioner can in no sense be deemed to be one interested in the minor. He is a stranger having no concern with the minor, either as

a relation or as one occupying a fiduciary position. He has therefore no locus standi to file an application under that section. If every debtor who

wants to get a loan from out of the funds of the ward is held to be competent to apply to the Court for an order directing the guardian to advance

the loan, he should also have the right to appeal against the order, if it turns out to be adverse to him. The door will be open to persons in need of

loans to file applications to the Court for sanctioning them. When a debtor cannot claim the grant of a loan as a matter of right, it stands to reason

that he should have no remedy when the loan is denied to him. It seems to us that a petition of this kind by a debtor (in his interests) would not lie

u/s 43(1).

An attempt was made by the learned Advocate for the 1st respondent to get over this difficulty by suggesting that the application in question

may be treated merely as information furnished to the Court, so that it may of its own motion make the necessary order u/s 43(1). But the fact is

otherwise. The 1st respondent was not content with merely supplying information, but made a specific prayer for an order in his favour. Nor did

the Court purport to act suo motu in passing the order appealed against. This suggestion seems to be futile. Another ingenious argument was put

forward to give a new turn to the whole proceedings. It is now urged that the order of the District Judge should be taken to be an administrative

order, against which neither an appeal nor a revision petition lies. This suggestion is bereft of any foundation. When the petitioner himself stated that

his application was under Sections 32 and 43 of the Act, and when the Court evidently purported to deal with it as such, how can it now be urged

that the order was merely an administrative one? In the face of his own averment in his affidavit the petitioner is estopped from raising such

contention now.

We are of opinion that the Lower Court should have dismissed this petition on the ground that the petitioner had no locus standi to present it

under the aforesaid section.

Even on the merits, we think that the learned District Judge did not give due weight to the apprehension expressed by all the three guardians of

the minor, which in view of the depression in the economic conditions of the country, cannot be slighted as chimerical. The minor has a large extent

of landed property, whose proper management is a matter of much difficulty. Any compulsory augmentation to the Immovable property, which will

be the case, if the petitioner should make default in payment of the mortgage debt, necessitating the purchase of the mortgaged lands by the

decree-holder himself (the minor), is not at all desirable in his interests. The paucity of offers for the purchase of lands in these days of economic

depression is a notorious fact. Investment of such a big sum in a single mortgage, though the security may be ample, is not, in our opinion, a

prudent step, having regard to the heavy indebtedness of the petitioner and other circumstances, which reduce the chances of an easy recovery of

the mortgage amount in cash to a negligible minimum. That being so, the sanction of this mortgage loan is one which we do not think fit to uphold.

In the result, the appeal is allowed, and the application of the 1st respondent is dismissed. He will pay the costs of the appellant in this Court.

No orders are necessary on the Civil Revision Petition.

The typing charges will be included in costs.