Hosur Kasipathy, ex. property guardian of the minors Mutchala Kesava Reddi and Others vs C.P. Venugopal, Official Receiver appointed property guardian of the minors

Krishnaswami Nayudu, J.—The guardian of the property of the minors is the petitioner in this civil revision petition. By an order of the

District Judge, Anantapur, dated 10th December 1941 in Order p. No. 8 of 1941 the petitioner was appointed as the guardian of the property,

and under the terms of the order he was directed that he should on no account keep in his hands more than Rs. 100 after making allowance for the

monthly expenditure and that he should deposit into Court all sums over and above Rs. 100 as and when the cash balance with him exceeded the

said amount. The petitioner filed a memo on 20th March 1946 for fixing his remuneration and prayed that a re-smuneration of 5 per cent be fixed

on the gross realisations, as the remuneration that was fixed in the order was insufficient in view of the heavy work which he did on behalf of the

estate. The learned District Judge made an order on 29th March 1946 that ""the remuneration is fixed at five per cent on the realisation."" The

petitioner was discharged, and the Official Receiver was appointed as the guardian of the property in about April 1948. The matter again came up

before the District Judge on 26th June 1948 when it was contended on behalf of the petitioner that the 5 per cent that was directed to be paid by

the previous order was on the gross collections and act on the net realisations. The learned District Judge held that the 5 per cent that the petitioner

was entitled to was only on the net realisations and allowed the other prayer in his petition that the order should be given retrospective effect.

In view of the order dated 26th June 1948 whereby the commission was fixed only at 5 per cent on the net realisations it was found that the

petitioner was to pay back into Court certain amounts which he retained as part of his commission on the basis that his remuneration was 6 per

cent on the gross realisations, and when the matter came up before the Court the following order was passed on 17th November 1948 :

After scrutinising the accounts, the Vakil for the ex-property guardian has filed a memo that the sums of Rs. 217-7-0, Rs. 58-7-2 and Rs. 95-

11.0 are payable by him. He has to repay another sum of Rs. 10 paid to Mr. T. Kothandarama Rao, which has been by mistake entered twice on

13-11-1946 and again on 24-2-1947.

Apart from this, the learned District Judge passed an order that the petitioner was liable to pay interest at 3 per cent on sums which he retained

over and above the sum of Rs. 100, in contravention of the order appointing him as guardian. Against this order this revision petition has been filed.

It is contended on behalf of the petitioner that the guardian having already adjusted the sums on the basis of his view of the order relating to the

fixing of commission at 6 per cent, he understanding it to be 6 per cent on the gross realisations, and having filed a statement of account on that

basis it is not open to the Court to call upon the guardian to pay into Court the sum so adjusted, and that, in any event, it is not open to the Court

to call upon the guardian appointed under the Guardians and Wards Act to pay into Court any sum over and above the sum as found in the

statement of account furnished by him to Court. For this proposition Mr. Srinivasa Aiyangar, learned counsel for the petitioner relies on S. 34(d) of

the Guardians and Wards Act and the decisions in Gopalaswamy Vs. G.P. Ramayya, and Harikrishna v. Govindarajula, (1926) 60 M. L. J. 273:

A. I. R. 1926 Mad. 478. There is force in this contention; but I do not think the question arises for decision before me in view of the admission of

the guardian before the learned Judge that he is liable to repay, and it is therefore not necessary to consider this argument raised on behalf of the

petitioner.

As regards the second contention as to the liability of the guardian to pay interest in respect of sums retained by him over and above what he

was permitted, the learned Judge does not refer to any provision of law entitling him to charge the guardian with interest; but he observes:

He (the guardian) is a pleader and should have followed the instructions strictly. While 1 am not prepared to excuse him completely, I consider

that it would be sufficient to levy interest at 3 per cent.

There is no provision in the Guardians and Wards Act for making a guardian liable for interest in the circumstances, and under the Rules framed

under the Act there is equally nothing relating to payment of interest. Rule 20 provides that the guardian appointed under the Act should pay into

Court all monies and securities for money belonging to his ward to the credit of the original petition under which he was appointed or declared.

There is however a provision for payment of interest by receivers, which is found in Rule 217, Civil Rules of Practice. There is also a provision in

the Original Side Rules of the High Court relating to monies in the hands of receivers. Order 26, Rule 2 of the Original Side Rules provides that

receivers shall pass their accounts upon oath before the Official Referee or Registrar or other officer appointed by the Court for the purpose and

the Registrar or other officer shall upon such passing of accounts fix the days on which such receivers are to pay the balance found to be due on

their accounts into Court. Rule 3. says:

If a receiver fails to maintain true and regular accounts, or fails to file his accounts into Court on the due data without proper cause, or unduly

delays the passing of his account by failing to appear before the passing officer, or improperly retains any cash in his hands, the Registrar or other

officer passing his account may disallow the whole or any portion of the salary or percentage due to him for the period of the account with

reference to which the default is committed, and also charge interest at 12 per cent, per annum on the monies improperly retained by him for the

period of such retention.

Though there is therefore provision relating to receivers, there is nothing relating to guardians of property of minors. Rule 217, Civil Rules of

Practice is as follows:

If a receiver fails to maintain true and regular accounts or fails to file his accounts into Court on the due date without proper cause, or unduly

delays the passing of his account by failing to appear before the passing officer or improperly retains any cash in his hands, the Court may disallow

the whole or any portion of the remuneration due to him for the period of the account with reference to which default Is committed and may also

charge interest at 12 per cent per annum on the monies improperly retained by him for the period of such retention without prejudice to any other

proceedings which might be taken against the receiver.

There is no doubt that the retention by the petitioner of the moneys over and above Rs. 100 as provided in the order appointing him as guardian is

improper, and there is no reason why a guardian of the property should be treated differently from a receiver appointed by Court. The petitioner

should have ordinarily deposited such amounts as and when he received retaining only Rs. 100 in his hands. This is a glaring violation of the order

of Court appointing him, and the order making him liable for interest is really proper; but in view of the absence of any provision entitling the Court

to charge a guardian with interest, I do not think I can allow the order to stand. In view of this lacuna in the rules framed under the Guardians and

Wards Act, it is necessary that a Rule similar to Rule 217, Civil Rules of Practice and Rules 2 and 3 of Order 26 of the Original Side Rules should

be framed to bring the guardians of properties on the same lines as receivers appointed by Court.

The revision petition is allowed in part, and the order so far as it makes the petitioner liable for payment of interest is vacated.