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Judgment
Kulwant Sahay, J.—This is an appeal against an order of the District Judge of Muzaffarpur, dated the 22nd December 1923, whereby he imposed a fine of Rs. 50 upon the appellant u/s 45 of the Guardians and Wards Act. The facts which led to the passing of this order are shortly these:
The appellant Musammat Abbasi Begum was appointed guardian under the Guardians and Wards Act of her two minor granddaughters, Musammat Ummatul Soghra and Musammat Yaquti Begum. Sometime before May 1921 it appears that the minor Ummatul Soghra was married to one Mohammad Hussain and on her marriage her husband was appointed her guardian, and the appellant Abbasi Begum was discharged. The appellant, however, continued as guardian of the other minor Yaquti Begum, it appears that after the marriage of Ummatul Soghra and the appointment of Mohammad Hossain, an account was taken by a Commissioner appointed by the District Judge from the guardian, Musammat Abbasi Begum and upon the report of the Commissioner, the learned District Judge by his order dated the 2nd September 1921 found that a sum of Rs. 4,951-2-9 was due from Musammat Abbasi Begum to the two minors of which one-half, namely, a sum of Rs. 2,475-9-4 1/2 was due to Ummatul Soghra and the remaining half was due to Yaquti Begum. We are not here concerned with the share of Musammat Ummatul Soghra which appears to have been duly paid up by the appellant to Mohammad Hossain, the husband and guardian of Ummatul Soghra, We are here concerned with the sum of Rs. 2,475-9-4 1/2 which was found by the District Judge to be due to the minor Yaquti Begum. On 18th September 1922 a settlement was come to between Musammat Abbasi Begum, Mohammad Hossain husband of Ummatul Soghra, one Haji Saiyid Ali Nawab, the maternal grandfather of the minors, Musammat Mustafa Begum, the natural grand-mother of the minors and Mr. Saiyid Ahmed Nawab, the maternal uncle of the minors. Under the settlement the appellant Musammat Abbasi Begum made a gift of all her properties to the minors and she resigned from the guardianship of Musammat Yaquti Begum and suggested that Mr. Saiyid Ahmed Nawab, the maternal uncle of the minor, may be appointed her guardian. In this settlement she admitted her liability to pay the sum of Rs. 2,475-9-4 1/2, which was found due from her to the minor Yaquti Begum under the order of the District Judge, dated the 2nd September 1921. It appears that the learned District Judge accepted this settlement and Abbasi Begum was discharged from the guardianship and Mr. Saiyid Ahmed Nawab was appointed guardian of the minor Yaquti Begum. Mr. Ahmed Nawab continued as guardian up to the 23rd July 1923, when he was discharged and Saiyid Azizuddin Hossain to whom the minor Yaquti Begum had been married in the meantime, was appointed her guardian. It appears that out of the sum of Rs. 2,475-9-4 1\\2 payable by the appellant she paid a sum of Rs. 1,000 only to Mr. Ahmed Nawab and she has not as yet paid the balance of Rs. 1,475 odd. The present guardian Saiyid Azizuddin Hossain made an application on the 17th September 1923 praying that the ex-guardian Musammat Abbasi Begum be ordered to pay up the remaining sum of Rs. 1,475 odd besides interest and also the realizations for the kists of Jeth and Bhado of 1328 Fasli and the full kists of 1329 Fasli with interest. Notice of this application was ordered to be served upon Musammat Abbasi Begum; and on the 4th of October 1923 she filed an objection in which she stated that out of the sum of Rs. 2,475 odd payable by her, she paid Rs. 1,000 to Mr. Saiyid Ahmed Nawab leaving a balance of Rs. 1,475 only as due from her; that the sum of Rs. 2,475 odd which was found to be due from her was made up of certain rents due from the tenants which she had failed to realise in respect of the share of the minor Yaquti Begum, that she was making arrangements to realise the unrealized rent from the thikadars and bandobastidars and raiyats but that as she had retired from the guardianship of he minor and Mr. Saiyid Ahmed Nawab had been appointed guardian she had failed to realise the same; that thereupon Mr. Saiyid Ahmed Nawab had insisted that she should not realise the rents from the tenants on account of the share of Yaquti Begum and that he himself would do so and that as a matter of fact Mr. Saiyid Ahmed Nawab had made realization for the periods for which she, the appellant, had been made liable, and that such realizations would appear from the accounts filed by Mr. Saiyid Ahmed Nawab in Court in respect of the share of Yaquti Begum and she prayad that Saiyid Ahmed Nawab be examined and the accounts be referred to. The learned District Judge rejected this objection of the appellant Abbasi Begum by his order dated the 4th October 1923. He observed in the said order that all questions were discussed and settled by the District Judge under his order dated the 2nd September 1921 referred to above, that the sum of Rs. 1,475 was still due from Abbasi Begum and that it made no difference who had been realizing the minor''s rents since the order of the 2nd of September 1921 was passed. He thought that there was no necessity for examining witnesses as proposed by Abbasi Begum because there was nothing to examine them about and he directed that Musammat Abbasi Begum must pay up the amount *due by November 13th without fail, otherwise she would be fined u/s 45. On the 13th November 1923 Musammat Abbasi Begum filed a petition praying that the order of the 4th October might be reviewed. Objection was raised on behalf of the present guardian and the learned District Judge rejected Musammat Abbasi Begum''s petition for review by his order dated the 8th December 1923 which runs thus:
Parties heard. It seems quite clear that the sum of Rs. 1,475 is quite separate from the arrears of rent, so Abbasi Begum''s objection to payment is invalid. She must pay Rs. 1,475 in cash as already ordered together with interest at 6 per cent, for the two years during which she has withheld payment. This amount must be paid into Court or to the minor''s guardian by December 22nd without fail, or a fine will be imposed.
Musammat Abbasi Begum having failed to make the payment, the learned District Judge made the order imposing the fine of Rs, 50 upon her on the 22nd of December 923 against which the present appeal has been filed.
It has been contended on behalf of the appellant that the order of fine is bad in law inasmuch as the fine has been imposed for non-payment of a sum of Rs. 1,475 odd which is not really due from her. It is contended that a portion of this sum represented certain unrealised rents from tenants and, as those rents had been collected by Mr. Ahmed Nawab, she could not be made liable to pay the whole of the sum of Rs. 1,475, and no fine could be imposed upon her for nonpayment of the sum which was not really due from her. On behalf of the respondent it is contended that the question as to whether any portion of the unrealised rent was realized by Mr. Ahmed Nawab does not arise in the present case and that the learned District Judge was not bound to examine the accounts of Mr. Ahmed Nawab or to take evidence on the question as to whether such unrealised rents had been realised by Mr. Ahmed Nawab. It is further contended that the question as regards the amount found by the District Judge to be due from Musammat Abbasi Begum was finally settled by the order of the District Judge and that no appeal lies to this Court against such order, and it was not open to the appellant to raise the question in appeal before us.
I am of opinion that the question as regards the amount actually due from the appellant at the time she was ordered by the District Judge to pay the sum to the present guardian on the 4th of October 1923 ought to have been gone into by the learned District Judge. The order of the 2nd September 1921 was apparently passed u/s 34 of the Guardians and Wards Act at a time when Musammat Abbasi Begum was still the guardian of the minor Yaquti Begum. It is contended by the learned Counsel for the respondent that the order of the 4th of October 1923 was passed under Sub-section 3 of Section 41 of the Guardians and Wards Act and that no appeal lies against such an order. Section 45 of the Act, however, provides that the guardian shall be liable by order of the Court to a fine not exceeding Rs. 100 in case he fails to pay into Court the balance due from him in compliance with a requisition under Clause (d) of Section 34 or if the guardian, after he has ceased to be such, fails to deliver any property in compliance with a requisition under Sub-section 3 of Section 41 of the Act. Therefore, in order to enable the Court to impose the fine it must be shown that the sum for the non-payment of which the fine has been imposed was actually due from the guardian, and if the guardian represents that the sum is not due no fine can be imposed unless it is ascertained as to whether the sum which he has been ordered to pay is really due from him. In Jagannath Panja v. Mahesh Chandra Pal 36 Ind. Cas. 286 : 25 C.L.J. 149 : 21 C.W.N. 688. it was held that if the requisition u/s 34(c) be not in conformity with Section 34(d) no fine can validly be imposed on the guardian for failure to comply therewith. The same principle will apply in case of the failure of the guardian to pay a sum which he may be called upon to pay under sub-section 3 of Section 41 of the Act. I am, therefore, of opinion that the order of fine without any enquiry as regards the amount actually payable by the appellant was improper. The learned District Judge seems to be of opinion that it was immaterial as to who had realised the unrealised rents for which the appellant was made liable. In my opinion it will be inequitable to make the guardian pay any sum for which she was made liable on account of non-realization from tenants and which realizations were subsequently made by the new guardian.
I would, therefore, set aside the order of the District Judge, dated the 22nd December 1923, imposing the fine upon the appellant and direct that her objection dated the 4th October 1923 be considered. In her petition of objection of that date she stated that the fact of the realization of the unrealised rents would appear from the account papers of Mr. Saiyid Ahmed Nawab. The enquiry will, therefore, be limited to the papers of Mr. Saiyid Ahmed Nawab. If the village papers kept by the village amlas during the period of the guardianship of Mr. Ahmed Nawab or the accounts produced by him in Court show any realization from tanants or thikadars for the period for which Abbasi Begum was made liable, such realizations must be credited in favour of Abbasi Begum and she must be called upon to pay only the balance left after giving credit for such realizations.
The result is that the appeal is allowed and the order of the District Judge is set aside with costs.
B.K. Mullick, J.
I agree. If Mr. Ahmed Nawab has by arrangement realised part of the balance of Rs. 1,475 due from the appellant it cannot be said that there has been failure on her part to pay the sum of Rs. 1,475. Therefore, a fresh notice must issue for the sum really due.