Goppammal vs V. Srinivasa Aiyangar and Another

Sadasiva Aiyar, J.—The first respondent in the lower Court is the appellant before us. She is the widowed mother of a minor boy. On the

application of the minor''s father''s 1st cousin, one V. Srimvasa Aiyaugar has been appointed as guardian of the minor''s property, superseding her

in the interests of the minor, so far as the guardianship of his properties is concerned.

The order appointing Srimvasa Aiyangar as guardian was passed on the 19th day of January 1914, u/s 7 of the Guardians and Wards Act.

Section 34 of the Act provides that '' where a guardian of the property of a ward has been appointed..., he shall, (a) if to required by the Court,

give a bond...to the Judge of the Court...engaging duly to account for what he may receive in respect of the property of the ward."" It seems to me

clear that it is only after the appointment that the person appointed can be required under the Act to give security u/s 34 (a). If he contumaciously

fails to give security, Section 39, Clause (e), empowers the Court to remove him from the guardianship.

Section 50 of the Act empowers the High Court to make rules (among other things) as to the security to be required from the guardian"" (Clause

6) and as to the circumstances in which such requisitions as are mentioned in Clauses (a) to (d) of Section 34 should be made."" [Clause (d) of

Section 50.] The rules should, however, be '' consistent with the Act"" (that is, the Guardians and Wards Act). I think it would be inconsistent with

the Act to impose a duty on the District Court to require such security before the appointment of a guardian. The following are portions of three of

the rules framed by the High Court under the Act: Rule 240 unless the Court for reasons to be recorded in writing otherwise orders, a person

appointed guardian of the property of the minor shall give security, etc.

Rule 241. When security is to be given, the Court shall determine the actual amount thereof and may examine the proposed sureties as to their

property and liabilities and adjourn the further hearing of the application to a fixed day as in Form No. 92.

Rule 242. ""The proposed guardian and his sureties...shall execute a security bond, etc.""...""At the adjourned hearing, the Judge...shall pass an

order in Form, No. 94, etc.

Form No. 92 mentioned in Rule 241 is headed Interim- order on application for guardianship of the property."" It says (in part)...the Judge

having approved of C.D. as a proper person to be appointed guardian of...the property of E. F., the minor..."" ""it is ordered that the said C.D.

do...bring into Court a bond...and the further hearing...is adjourned to....

Form No. 94 referred to in Rule No. 242 is headed Final order appointing a guardian of person and property."" It says (in part)...the fudge

having approved of C.D. ...as a proper person to be appointed guardian of the...property of E.F., the minor, and the said C. D. having given

security...which has been approved by the Judge and filed in Court, it is ordered as follows:

That the said C. D. be appointed guardian of...the property of the said minor, etc.

The Act does not provide for two orders, namely, an Interim order"" of ""approval"" and a ''Final order"" of ""appointment '' of the guardian of

property, nor does it postpone the appointment till security is furnished. On the other hand, the appointment has to precede the requisition for and

the furnishing of security. So far as the Rules and Forms quoted by me above require the appointment to be postponed to the furnishing and

approval of the security (that is, require the security to be furnished and approved of before the appointment is made), they seem to be ultra vires.

In the present case, an order of appointment of guardian of property was made (as I said before) by a judgment of the 19th January 1914, the

language of the judgment being ""l appoint him"" (Srinivasa Aiyangar) accordingly as guardian of the property of the minor on a security of Rs.

30,000."" This judgment of January 1914 was treated by the present appellant (the minor''s mother) as an order of appointment made u/s 7 and she

appealed against it to the High Court (Appeal Against Order No. 59 of 1914). That Appeal No. 59 was dismissed by the High Court on 16th

December 1914.

Meanwhile, the District Court seems to have treated its judgment of January 1914 as only an interim order approving of Srinivasa Aiyangar as

guardian under the Rules and the Forms I have already referred to and treated Srinivasa Aiyangar even after that judgment as a proposed

guardian and not as an '' appointed"" guardian and called on him to furnish security as such proposed guardian. He furnished sureties accordingly at

the end of January 1914 and a direction was given on -th February. 1914 to the Nazir of the Court to have the security tested. The securities

having stood the test and having been approved by the District Judge, an order was passed on 26th September 1914, the material portion of

which is

That the said V. Srinivasa Aiyangar has been appointed guardian of the property of the said minor, etc.

Thus, though there was an appointment order in January 1914 of the same Srinivasa Aiyangar as guardian and though that order was under

appeal (and was eventually confirmed in December 1914), a sort-of final order of appointment was passed in September 1914. The mother of the

minor has taken advantage of the passing of the said second order of September 1914 to present the present Appeal No. 296 of 1914 against it,

on the ground that sufficient security has not been given by the guardian and hence the appointment of September 1914 should not have been

made.

I am clear, in the first place, that the order of January 1914 is the order of appointment which was legally passed u/s 7 of the Guardians and

Wards Act and is itself a final order of appointment and that the so-called final appointment of September 1914 is not provided for by law and

cannot be appealed against as an independent order. In the second place, it has been held in the judgment in the former Appeal Against Order No.

59 of 1914 between these same parties that no appeal lies u/s 47 of the Act against acts done by the Court u/s 84 of the Act and as questions

relating to the furnishing of security come u/s 34, Clause (a), this appeal is unsustainable. Without prejudice, therefore, to any steps which the

appellant may be entitled to take or has taken under the Act in the District Court itself in respect of the alleged inadequacy of the security, I would

dismiss the appeal with costs.

Moore, J.

I agree that no appeal lies in this case, but desire to add a few words.

On January 19th, 1914, 1st respondent V. Srinivasa Aiyangar was appointed guardian of the property of the minor on a security of Rs.

30,000.

The present appellant, the mother of the minor, appealed against this order to the High Court and the appeal was dismissed on 16th December

1914.

While the appeal was pending the District Judge, following the practice which obtains in the mofussil and which is in accordance with the rules

framed by the High Court, called upon the guardian to furnish security which was tested in the usual way by the Nazir.

The security having been found to be sufficient was accepted by the District Judge, and the following order was passed on 26th September

1914: ""The Judge having approved of V. Srinivasa Aiyangar, son of Venkatarama Aiyangar, of Pandalgudi as a proper person to be appointed

guardian of the property of minor Gopala Krishna Naick and the said V. Srinivasa Aiyangar having given security by entering into a bond with his

surety, dated 9th day of September 1914, which has been approved by the Judge and filed in Court it is ordered as follows:

That the said V. Srinivasa Aiyangar be appointed guardian of the property of the said minor...

With all deference to my learned brother I do not think that the rules framed by the High Court to which he refers can be regarded as ultra

vires.

It is true that it is u/s 7 of the Guardians and Wards Act that the appointment order is made. This section, which appears at the beginning of

Chapter II of the Act and is followed by other sections which lay down the procedure to be followed when an application is made to a Court to

appoint a guardian, the matters which the Court has to consider when appointing a guardian and so on, provides that the Court may make an order

appointing a guardian if it is satisfied that it is for the welfare of a minor that an order should be made. The section, is silent as to the furnishing of

security. Section 34, which occurs in Chapter III dealing with the rights, liabilities and duties of guardians, provides that when a guardian of the

property of a ward has been appointed or declared he shall, if so required by the Court, furnish security.

Rule 240 says that unless the Court for reasons to be recorded in writing otherwise orders a person appointed guardian of the property shall

give security.

The practice in the mofussil is this : When a guardian, of the property is appointed a time is fixed for his furnishing security. The appointment is

made conditional on security being furnished. If the guardian fails to do so, or if the security tendered is insufficient the petition is dismissed. The

formal order of appointment is not signed and the petition is treated as pending until the guardian has furnished the required security. This

procedure appears to be correct and does not, I think, contravene any express provisions in the Act. As pointed out by my learned brother, the

Act does not provide for interim or final orders for the appointment of a guardian, and does not appear to contemplate the postponing of the

appointment order till security is furnished. But suppose a guardian fails to furnish security or gives insufficient security. There does not seem to be

any provision in the Act which authorises that Court to cancel the appointment order in such a case. It is only in cases where the guardian fails to

deliver the statement required under Clause (6) of Section 34 or to exhibit accounts as required by Court that he can be prevented from continuing

u/s 45 of the Act. Section 39 provides that a guardian may be removed for certain causes. Sub-clause (e) refers to the contumacious disregard of

any provision of the Act or any order of the Court, but a guardian who fails to furnish security perhaps for unavoidable reasons or is unable to

furnish sufficient security can hardly, I think, be said to be acting in contumacious disregard of the order of the Court.

However this may be, it is clear, I think, that the present appeal, which is directed against the order of the District Court, dated 26th

September 1914, u/s 34 (a) of the Act accepting the security furnished by Srinivasa Aiyangar, is incompetent. No appeal lies u/s 47 (a) of the Act

against such an order. See Gopaminal v. Sreenivasa Tyengar 27 Ind Cas. 921. I agree that the appeal should be dismissed with costs without

prejudice to any steps which the appellant may be entitled to take in the District Court in respect of the alleged inadequacy of the security offered

by the 1st respondent.