JUDGMENT Ryves, J.
1. This is an application in civil revision to quash the order of the District Judge of Cawnpore, dated the 28th of March 1919, on the ground that it was passed without jurisdiction. It raises a question of difficulty and importance and appears not to be covered by authority. The order purports to have been made under Section 41 (3) of the Guardians and Wards Act, Act VIII of 1890.
2. The facts are as follows : In 1907 the present applicant, Kuar Chandra Bhukhan Singh, was appointed under the Act guardian of the property of the minor, his nephew, who had inherited a very valuable Zemindari estate which it is admitted is impartible. On the 23rd of November 1918 the minor died. Up to that time there had been no suggestion that the guardian had failed in any way to do his duty. No sooner had the minor died, than litigation was started to determine who should succeed him. The two claimants were:
(1) The widow of the minor, the opposite party here;
(2) and the applicant.
3. Both are claiming mutation of names in the Revenue Courts and the litigation is still pending.
4. On the 6th of March 1919 the widow of the minor filed an application in the District Judge's Court, in which she stated that 'she was the sole heir of the minor and entitled as his widow to receive the entire property of the deceased minor." She further stated that "she believed that the guardian had withdrawn a sum of about Rs. 38,000 from the Allahabad Bank, Limited, standing in the minor's name and appropriated the same to his own use. She, therefore, prayed that the said guardian be called upon to deliver all moveable property and cash and documents and render accounts of the period of his guardianship and be prohibited from using or converting the property of the deceased ward in any manner whatsoever." She asserted that the immoveable property was already in her possession. The Court thereupon issued notice to the guardian to show cause why the application should not be granted.
5. The guardian, the applicant here, in his reply claimed that he was the heir. He denied that he had in any way wrongfully dealt with any monies belonging to the minor and stated that he had all along submitted accounts of his stewardship to the Court the last accounts having been filed in July 1918. At the same time he protested against the Court's jurisdiction to pass the order prayed for against him as being beyond its jurisdiction. The Court made an enquiry of a very summary character, for I find that no evidence was recorded, and passed its order in the following terms:
I grant the application so far as it asks for property, papers and accounts in the possession of the guardian. The latter cannot under Section 41 (3) be ordered to render accounts. For this a separate suit is necessary.
6. It may be noted here that the widow did not assert when the so called misappropriation of the Rs. 36,000 had been made, whether before or after the death of the minor. Nor, has the Court come to any finding on this point. It says: "It appears that he has drawn out in his own name some of the minor's money. He never informed this Court of his intention to do this." I presume that this was admitted by the applicant, for, as I have said no evidence was taken. Assuming that this is a finding that the money standing in the minor's name had been with-drawn, there is no finding as to when this was done, whether before or after the minor's death.
7. The learned Judge seems to me to have been influenced to some extent by taking into consideration what in his opinion were the merits of the parties before him ultimately to succeed, for he says:
The question whether the widow' or uncle is heir depends on the fact whether the uncle was joint with the deceased minor, that is to say, would have been a coparcener with the deceased but for the estate being an impartible one, it being common ground that the deceased minor was owner of the property as the holder of an impartible estate. There is a presumption in favour of jointness and the mere fact that the uncle lived in a separate house from the minor for the sake of convenience will not of itself prove the separation which would debar him from succeeding. At the same time it appears to me clear from the order appointing the uncle guardian that there was no suggestion when he was appointed guardian that he was next heir to the property nor did he then say that his living separately was a temporary matter of convenience.
8. Such considerations seem to me' wholly irrelevant in the present enquiry. The question as to who was the heir of the minor was one which the District Judge certainly could not determine in this enquiry.
9. Mr. Narain Prasad for the applicant does not contend that the guardian's liability to account for his administration of the minor's property was terminated by the death of the minor. All he contends for is that the order passed was without jurisdiction.
10. It is admitted that the decision of the question turns on the proper construction of Section 41 of the Act, and more particularly on sub-section 3 of that section. The only question raised and the only one which I propose to deal with, therefore, is whether this particular order was one which the Court had jurisdiction to pass. In my opinion it was not.
11. Section 41 enumerates the circumstances under which the powers of a guardian terminate. We are only concerned here with paragraphs 2 and 3 of that section. The powers of a guardian of the property of a minor cease (a) on his (the guardian's) death, removal or discharge; (6) by the Court of Wards assuming superintendence over the property of the ward; or (c) by the ward ceasing to be a minor.
12. While it is clear that the powers of a guardian cease on his own death, paragraph (a) declares that his powers also cease by the ward ceasing to be a minor. I think these words must mean by the minor becoming a major,--when he would have presumably reached years of discretion and would be able to look after his own interests. I do not think that the death of the minor was meant to put an end to the responsibility of the guardian to account to the Court whose officer he is for his stewardship. To hold otherwise would be to suggest that all that a dishonest guardian has to do to escape the disciplinary power of the Court which appointed him would be to procure the death of the minor. His liabilities are apparently only terminated by his death, removal or discharge. Unless and until the guardian on the death of the minor applies to the Court and gets his discharge and thereby obtains the safeguard provided under sub-clause 4 of Section 41, it would appear that he still remains accountable to the Court for his administration of the minor's property. But this question is perhaps irrelevant here, as the guardian does not claim that the death of the minor in any way pus an end to his liabilities, and I, therefore, express no opinion on the point.
13. Dr. Tej Bahadur supports the order of the Court by arguing that under Section 41 (3)the Court may for "any cause" act under the section and, that 'any cause" includes the death of a minor. The chief difficulty in accepting this argument is the fact that the wording of the sub-section and especially the concluding words, namely, any past or present pro-party of the ward," clearly contemplate that the ward was alive at the timed (though he may have become a major) when the order was passed. But there is another serious difficulty to this argument. Orders under Section 41, Clause 3, are admittedly final and are not open even to appeal. If an order such as was passed in this case was within; the jurisdiction of the Court it might well be held to operate as res judicata between the parties. Dr. Tej Bahadur has to admit this but says the difficulty would in practice be removed because a Court dealing with such matters under the Act would not pass final-; orders except in cases where the issue is very simple. In difficult cases, he argues, or where a detailed enquiry was necessary, it would refer the parties to the Ordinary Civil Courts. It seems to me that the Legislature either, gave the Court jurisdiction finally to decide such questions or it did not. I cannot think, in the absence of any direction to the contrary, that it left it open to the whim or idiosyncrasy of the Judge concerned to decide whether or not to try a question of the kind involved.
14. No authority under the Act has been cited by either side nor have I been able to discover any.
15. The case of Narbadabai, In the matter of 8 B. 14 : 4 Ind. Dec. (n.s.) 383 has been cited.
16. That was a decision under Act XX of 1864 and is perhaps not quite decisive here because the language of the two Acts is not precisely similar, though they both deal with the guardianship of minors. But Act XX of 1864 was one of the Acts which was repealed and superseded by the present Act. The Legislature must, therefore, have been aware that the Bombay High Court had held that when a minor died during minority, the "administrator" of his estate, duly certificated, under Section 6 of that Act, could not be called upon to render accounts to the Court on the death of the minor, because the Court, as representing the minor, was "functus officio", and yet took no steps in framing the present Act to provide for the case of the ward's death daring his minority. From first to last the only section in the Act which seems to contemplate the consequences of the death of the minor during his guardianship is Section 37, which has no application here. There is nothing in this Act corresponding to Section 48 of Act IV of 1912 (The United Provinces Court of Wards Act).
17. On the whole I am satisfied that the order of the Court was without jurisdiction and must be set aside with costs. I would allow this application with costs.
Walsh, J.
18. I agree that this application must be allowed, for the reasons stated' We are not deciding that the death of the minor puts an end to the jurisdiction of the. Court. On the contrary I incline to agree with what my brother has said about the termination of a guardian's liability to the Court exercising jurisdiction under the Guardians and Wards Act. But it will be time enough to decide that question when the point arises.
19. The order of the Court is that the application is allowed with costs, and the order of the Court below must be set aside.