Subba Naick vs Rama Ayyar and Another

Seshagiri Ayyar, J.—In. this case the facts are that a promissory note belonging to a minor was endorsed over by his mother after it was

decided in an application under the Guardians and Wards Act that a third party should be appointed guardian of the said minor. In the proceedings

above referred to, the District Judge of Ramnad, Mr. Dutt, held on the 19th of January, 1914 that the mother was not the proper guardian and that

one Srinivasa Ayyangar should be appointed guardian of the minor''s property. It seems clear that the statement in the body of the judgment that ""I

appoint Srinivasa Ayyangar accordingly,"" has been inserted incautiously. The subsequent proceedings place it beyond doubt that it was not the

intention of the District Judge to make any appointment on the date of the order, Srinivasa Ayyangar was directed to furnish security. The

successor of the District Judge passed proceedings on the 26th of September, 1914 accepting the security bond and issued an order of

appointment to Srinivasa Ayyangar. The mother of the minor who undoubtedly was the natural guardian of her son, endorsed the promissory note

in favour of the plaintiff in this case in May, 1914, that is, between the date of the order declaring that a stranger guardian should be appointed and

the date on which the order entrusting the guardianship was actually issued to that stranger.

The question is whether the act of the mother is null and void. We are not concerned in this petition with the question whether the mother acted

bona fide in endorsing the promissory note. We are only concerned with the bare legal question whether the endorsement was of no effect. Section

7, Clause (2) of the Guardians and Wards Act, says that an order under Clause (1) shall imply the removal of any guardian who had not been

appointed by a will or other instrument, or appointed or declared by the Court. It was argued that the moment the District Judge held that the

stranger should be appointed in the place of the mother, the latter was impliedly removed from her natural guardianship. It is clear that the new

guardian would have had no power to manage the minor''s properties until he had furnished the requisite security. The result of holding that the

natural guardian was removed by the bare declaration of the Court that a new guardian should be appointed, would be to leave the minor''s

properties unprotected and uncared for during the interval. It was suggested that as the Court is charged with the welfare of the minor, it may be

expected to administer the minor''s estate during this period. But the Court would not be recognizant of all the assets and effects of the minor and

would not be in a position to direct the institution of suits which are likely to become barred, unless there is some party who is in a position to

supply the requisite information to the Court. Reliance was placed upon certain observations of Sadasiva Ayyar, J., in Gopammal Vs. V. Srinivasa

Aiyangar and Another, . The learned Judge points out that the rules framed by the High Court, namely, Rules 240 to 242 and forms 92 and 93, are

ultra vires. He says that the only provision for demanding security from the guardian is that contained in Section 34 and that under that section, the

security follows upon the appointment and does not precede it. With all respect, we do not think that Section 34 compels us to hold that any rule

which makes the appointment of a guardian to take effect only on furnishing security, would be ultra vires.

Section 7 gives an absolute discretion to the Court to appoint a guardian. The appointment may be absolute as in the case of persons well

known and respected or it may be conditional as in the case of persons about whose solvency etc. the Court has no knowledge. Clause (a) of

Section 7 which speaks of a guardian being appointed, does not negative the suggestion that such an appointment may be made conditional upon

the furnishing of security Section 34 is a further provision which enables a Court to demand security even in the case of persons originally

appointed unconditionally. It may be in the interests of the minor that there should be a prompt appointment of a guardian, and the Court may, after

making the appointment to take effect at once, insist upon the guardian giving security. It is that class of cases that Section 34 provides for. It does

not take away the general power possessed by the Court of imposing conditions upon persons who are appointed guardians. The learned vakil for

the respondent drew our attention to Mungniram Marwari v. Gursahai Nand ILR (1890) Calc. 347 What was held in that case was that where

there is an unconditional order of appointment, the fact that it is not issued to the appointee does not take away his rights of acting under that order.

It is not an authority for the proposition that a conditional appointment is effective before the condition is satisfied. There are certain observations in

Gopal Chunder Bose v. Gonesh Chunder Srimani (1906) 4 C.L.J. 112 which detached from the facts of the case might lend some support to the

contention of the counter-petitioner. But it is clear that what the learned Judge intended to lay down was that where an application was made

before the ward attained the age of eighteen years and a guardian was appointed subsequently, the order took effect as if on the date of the

application so as to prolong the period of minority to twenty-one years. The exact point which we are considering was not in the mind of the

learned Judge in that case. The analogy of Order XL, Rule 1, as to the appointment of receivers lends support to the view which is here stated.

Mr. Justice Mookerjee, after a very elaborate examination of the case-law in India and. in England, came to the conclusion in Srinivasa Prosad

Singh v. Kesho Prosad Singh (1041) 14 C.L.J. 489 that if a receiver is appointed without any direction as to security, the order takes effect at

once and that he is validly in possession though no security has been given; but that if the appointment is conditional upon the furnishing of security

the giving of security is a condition precedent, and that there would be no effective appointment till the security has been given. Applying that

principle, we may say that where a guardian is appointed unconditionally, the order takes effect at once, although u/s 34 of the Guardians and

Wards Act, he may be required to furnish security subsequently. But where the order is conditional upon the furnishing of security, it does not take

effect until the security has been furnished. That this is the view taken in England is clear from Defries v. Creed (1865) 34 L.J. (Ch.) 607 In

Edwards v. Edwards (1876) 2 Ch. D. 291 Lord Justice James says: ""A receiver becomes such on giving security.

In In re Roundwood Colliery Company, Lee v. Roundwood Colliery Company (1897) 1 Ch. 373 Lord Justice Lindey says that the order of

appointment would never be really effective until the security is furnished. That was followed in Ridout v. Fowler (1904) 1 Ch. 658.

We see no difficulty in applying the analogy of these cases to a conditional order of appointment as guardian. In our opinion, therefore, the order

appointing Srinivasa Ayyangar became effective only in September, 1914 and as the promissory note was endorsed in May, 1914, it is not prima

facie invalid.

The order of the Subordinate Judge dismissing the suit mast be set aside, and he will restore the suit to file and dispose of it according to law.

Costs up to date will be costs in the cause.