Govind Ram v. Bhoor Singh — 1952 DIGILAW 75 (RAJ)

Ranawat, J. — This is a revision application filed by one Govind Ram, son of Bishna of Kishangarh, against an order of the Civil Judge, Alwar, dated the 10th of August, 1951, by which a direction was issued to the Collector of Alwar that the possession of the property of the minor which had been handed over by the Naib Nazim to Govind Ram should be restored to the persons who were in possession of the property at the time of the filing of the guardianship application. A further direction was given that in future the property of the minor should be managed through the instrumental lity of the Sub-Divisional Officer of Tijara and not through the Naib Nazim. 2. Briefly stated, the facts of the case are that an application under sec. 7 of the Guardians and Wards Act was filed by one Bhola Ram of Bas Kirpal Nagar for appointment of a guardian of the property and person of Mohar Singh minor. Bhola Ram alleged that he was the paternal uncle of Mohar Singh, who was only 11 years of age. The maternal uncle of the minor was said to be in possession of some of the property of the minor. Similarly the husband of the fathers sister of the minor was also said to be in possession of some of the minors property. There was, therefore, a dispute between the relatives of the minor regarding the appointment of guardian of the property and person of the minor. The case was pending in the Court of Civil Judge, Alwar, for some time, and on an application made under sec. 12 of the Guardians and Wards Act, the Civil Judge on the 19th of March, 1951, allowed the opposite party to keep the custody of the minor, but made over the custody of the property of the minor to the Collector with a ! direction to appoint some local Naib-Tehsildar or any other revenue officer as he may deem proper to act as manager of the property, who was also to prepare an inventory of the property of the minor and to file it with the court and also to render accounts at the end of six months regularly. direction to appoint some local Naib-Tehsildar or any other revenue officer as he may deem proper to act as manager of the property, who was also to prepare an inventory of the property of the minor and to file it with the court and also to render accounts at the end of six months regularly. It was also specified in the order that the said manager might manage the property through the instrumentality of the relatives of the minor, but should keep personal supervision over the same. In accordance with the direction of the aforesaid order, the Collector appointed the Naib Nazim to act as manager of the property of the minor. The opposite party was not satisfied with the management by the Naib Nazim, and complained to the Court of the Civil Judge on the 20th of July, 1951, saying that the Naib Nazim was prejudiced against him, and he did not manage the property of the minor through the instrumentality of the relatives of the minor as was directed by the order of the Court. On this application, the Civil Judge issued a direction to the Collector on the 21st of July, 1951 requesting him to appoint the Sub-Divisional Officer as the manager of the property of the minor in place of the Naib Nazim. Before this order could reach the Naib Nazim, through the Collector, he held an auction and granted a lease of certain agricultural lands of the minor to Govind Ram in consideration of a certain amount to be paid by him. The property was handed over to Govind Ram for cultivation. On a further application by the opposite party, the Civil Judge, on the 10th of August, 1951, further directed the Collector to take the possession of the property from Govind Ram and to hand it over to the persons who were in possession thereof at the time of the filing of the application for appointment of a guardian of the person and property of the minor. The petitioner, being dissatisfied with the order of the Civil Judge, which had been made on the 10th of August, 1951, first filed an objection petition in the Court of the Civil Judge, but failed to appear before him, and the objection petition was, therefore, dismissed. The petitioner, being dissatisfied with the order of the Civil Judge, which had been made on the 10th of August, 1951, first filed an objection petition in the Court of the Civil Judge, but failed to appear before him, and the objection petition was, therefore, dismissed. He has, however, come to this Court against the order of the Civil Judge, dated the 10th of August, 1951, in revision under sec. 48 of the Guardians and Wards Act. 3. Three objections were pressed at the time of the hearing of this application, viz., (1) that the Civil Judge had no jurisdiction to interfere in the management of the property when the Collector had been appointed as the manager of the property of the minor, (2) that the order of the Civil Judge was bad in law as it had been made without allowing an opportunity of being heard to Govind Ram against whom the order was made, and (3) that the Civil Judge had no jurisdiction to deal with the rights and interests of third persons while dealing with a case under the Guardians and Wards Act for the appointment of a guardian of the person and property of a minor. 4. It has been argued on behalf of the opposite party that under sec. 12 of the Guardians and Wards Act a person to whom the temporary custody and protection of the property of a minor is entrusted is not authorised to dispossess otherwise than by due course of law any person in possession of any of such property. The Naib Nazim, who took the possession of the property from the relatives of the minor, had, therefore, no power to dispossess the opposite party. The Civil Judge in making the order on the 10th of August, 1951, only issued a direction to the manager to respect the provisions of law which are contained in sec. 12 (3) (b) of the Guardians and Wards Act. It is further pressed that the Naib Nazim had been removed from the management of the property of the minor by an order of the Civil Judge, dated the 21st of July, 1951, and anything which he did after that date was ultra vires, and the possession, which was handed over to Govind Ram after that date, was without an authority of law. The Collector, if he is appointed as the manager of the property of the minor under sec. 12, is to act under the control of the Court and the possession of the Collector after the appointment of a guardian under sec. 7 is different from his possession if he is appointed a guardian for the interim period before a final order is made under sec. 7 of the Act. For the interim period it is open to a court even to appoint a receiver of the property of the minor under the provisions of the Code of Civil Procedure, and the powers of the court are in this respect very wide. The order which is impugned in this revision should be treated to be intra vires. 5. On behalf of the petitioner reliance is placed on Salubai vs. Keshav-rao (A.I.R. 1932 Bombay 156). But it may be pointed out that that case relates to a question about the marriage of a minor and the decision in that case does not throw any light on the questions raised in the present case. The learned counsel for the petitioner has cited the decision of a case reported in V. Natesa Filial vs. Central Road Traffic Board, Egmore, Madras (A.I.R. 1952 Madras 39) on the point that it was obligatory on the learned Civil Judge to have allowed an opportunity to the petitioner of being heard before an order was made against him. In para 5 of the judgment in that case, one English case Rex vs. North Oakey Ex Parte ((1927) 1-K. B. 491) was referred to. The Court of Appeal held that the order made without giving the Vicar an opportunity of being heard in his defence was without jurisdiction. In para 5 of the judgment in that case, one English case Rex vs. North Oakey Ex Parte ((1927) 1-K. B. 491) was referred to. The Court of Appeal held that the order made without giving the Vicar an opportunity of being heard in his defence was without jurisdiction. The observations of Scrutton, L.J., at page 504, were reproduced with approval, which are as follows : — ".........As I have already said, to order a man to pay what is in the nature of a penalty for an offence without first giving him notice that an application for such an order is going to be made, is both contrary to the general law of the land, and is so vicious as to violate a fundamental principle of justice............" The principle that no judgment should be given against a party who had no notice is stated in clear terms in Brooms Legal Maxims, 9th Edition, page 78 :— "It has long been a received rule that no one is to be condemned, punished or deprived of his property in any judicial proceeding unless he has had an opportunity of being heard." 6. It may be observed that the action of the Naib Nazim in granting a lease of the property of the minor in favour of Govind Ram cannot be regarded as without jurisdiction simply because on the 21st of July, 1951, the Civil Judge issued a direction to the Collector to appoint the Sub-Divisional Officer in place of the Naib Nazim. The jurisdiction of the Naib Nazim to manage the property of the minor came to an end when the Collector in accordance with the direction of the Civil Judge communicated to him to hand over the management of the property of the minor to the Sub-Divisional Officer. Before such an order was communicated to him, it was his duty to manage the property of the minor and to protect it. The objection of the opposite party that the grant of lease by the Naib Nazim should be regarded as ultra vires on the basis of the order of the Civil Judge replacing him by some other person cannot be considered to be of much consequence. The objection of the opposite party that the grant of lease by the Naib Nazim should be regarded as ultra vires on the basis of the order of the Civil Judge replacing him by some other person cannot be considered to be of much consequence. In case the opposite parties were in possession of the property of the minor in their own rights, the Naib Nazims action to deprive them of their possession of the property may perhaps be in excess of his jurisdiction, but this question cannot be determined without first holding an enquiry whether the opposite parties were in possession of the property of the minor in their own rights or whether they were in possession of the property as guardians of the property of the minor. In case they were in possession of the property of the minor in their capacity as guardians of the minor, it would not be wrong for the Naib Nazim, who was appointed as a manager of the property of the minor, to take possession of the property from them and to manage the property himself or to make such arrangement of the property as he might have deemed proper. Under the circumstances of this case, probably it is not necessary for this Court to go deeper into this question at this stage. It is open to the opposite parties to fight out such questions by way of a regular civil suit rather than to fight them in relation to the proceedings under the Guardians and Wards Act. The possession of the property of a third person cannot be disturbed by the order of a civil court under sec. 12 of the Guardians and Wards Act. Similarly it is not open to a court acting under sec. 12 of the Guardians and Wards Act to make an order relating to the rights of third persons. The petitioner, Govind Ram, acquired certain rights of lease from the manager of the property of the minor, and it was not open to the Civil Judge to have given any orders affecting the rights of the petitioner, which could only be decided by way of a regular civil suit. The petitioner, Govind Ram, acquired certain rights of lease from the manager of the property of the minor, and it was not open to the Civil Judge to have given any orders affecting the rights of the petitioner, which could only be decided by way of a regular civil suit. The Civil Judge, if he considered that the lease granted by the Naib Nazim was voidable, could direct the manager of the property of the minor to proceed by way of a regular civil suit against the lessee to take back the possession of the property from him and to cancel the lease granted to him by the Naib Nazim. In the case of Kundan Lal vs. Bhagwati Saran and another (A.I.R. 1934 Allahabad 1943) the facts were similar to the facts of the present case. Though that case related to the management of the property of the minor after the appointment of a guardian, yet the principle laid down in that case should also be considered to hold good for a case of interim management of the property of a minor, because anything which a guardian of a minor after he has been so appointed under sec. 7 of the Act is not competent to do, an interim manager of the property of the minor cannot be held to be authorised to do. In that case the manager of the property of the minor granted a lease to Kundan Lal, and Bhagwati Saran applied to the Court of District Judge that he was willing to pay a higher amount if lease was granted to him of the same property for a period of five years only, which was only half the period for which a lease had been granted to Kundan Lal. The District Judge cancelled the lease in favour of Kundan Lal and granted a lease to Bhagwati Saran. The order of the District Judge was challenged in revision, and the High Court of Allahabad in its judgment observed as follows :— "It is quite clear that the learned Officiating District Judge is of opinion that he can exercise judicial authority in relation to third persons in proceedings under the Guardian and Wards Act. The order of the District Judge was challenged in revision, and the High Court of Allahabad in its judgment observed as follows :— "It is quite clear that the learned Officiating District Judge is of opinion that he can exercise judicial authority in relation to third persons in proceedings under the Guardian and Wards Act. If the lease executed by the guardian in favour of the applicants (Kundan Lal and another), is voidable, the same not having been executed with the permission of the District Judge, the latter has no power to cancel it in the sense that the lease becomes inoperative by force of that order. It may be that the District Judge can express an opinion as regards the validity or otherwise of the lease for the purpose of determining the action which should be taken in the interest of the minor. The holder of a lease executed by a guardian without the permission of the District Judge may have effective defences against the claim by or on behalf of the minor to have the lease cancelled. Any question as regards the validity of the lease is to be determined by a competent Court in a regular suit. It is certainly open to the District Judge to form the opinion that the lease is invalid, and acting on that view may grant permission to the guardian to execute another lease on more advantageous terms. I may point out that the Officiating District Judge has ordered the guardian to execute the lease. His proper function is to grant permission to execute one if it is asked for. There is no provision in the Guardians and Wards Act, which empowers the District Judge to exercise disposing power over the minors property under the management of a lawful guardian. It is the function of the guardian to deal with the property of the minor and to administer it. The guardian may obtain the advice of the District Judge under sec. 33, Guardians and Wards Act. The District Judge may also make an order under sec. 43 regulating the conduct or proceeding of any guardian appointed or declared by the Court. The learned Officiating District Judge seems to have been of opinion that he can deal with the minors property and do everything which the guardian might do, besides cancelling an instrument executed by the latter. The District Judge may also make an order under sec. 43 regulating the conduct or proceeding of any guardian appointed or declared by the Court. The learned Officiating District Judge seems to have been of opinion that he can deal with the minors property and do everything which the guardian might do, besides cancelling an instrument executed by the latter. While it was open to the learned Judge to invite the guar-dian to make an application for permission to execute another lease in favour of the opposite party, he had no power to declare that the cancellation of the lease already executed in favour of the applicant is to "take effect" from a certain date and that it shall be valid till that date arrives. The new lessee will take his chance of succeeding against the old lessee in proper proceedings, and any opi-nion expressed by the District Judge cannot effect the rights of one or the others." 7. Following the principle laid down in the judgment referred to above, it becomes clear that it is not open to the court while acting under the provisions of the Guardians and Wards Act to dispossess third persons or to adjudicate on their rights in the property of the minor. Such matters should be left to be decided by way of a regular civil suit. The manager of the property of the minor in the present case granted a lease to the petitioner and also handed over possession of the property to him. The lease so granted confers certain rights on the lessee and it cannot be cancelled arbitrarily by the court under any of the provisions of the Guardians and Wards Act. Such questions relating to the validity or otherwise of the rights of third persons do not fall within the scope of the proceedings under the Guardians and Wards Act. The Civil Judge, however, could advise the manager to take such proceedings against third persons as he considered to be in the interest of the property of the minor, but he could not order cancellation of lease or taking over of the possession of the property from the lessee to whom a lease had been granted by the manager of the property in exercise of his functions. The opposite parties may have had a grievance against the manager for his high-handed action in taking over the possession of the property from them, and if they had any grievance that they were in possession of the property in their own right, they could proceed to take action against the manager of the property by way of a regular civil suit. But in case they were in possession of the property as guardians of the pro-perty of the minor, it was within the competence of the manager to have taken possession from them in order to manage and protect the property of the minor. The order of the Civil Judge, which had been made without hearing the petitioner who is a third person cannot be considered to be valid, as it is not competent for a court under the provisions of the Guardians and Wards Act to deal with the rights and interest of third persons while dealing with the question of the management of the property of the minor. As has already been observed, such matters should be left to be dealt with by way of a regular civil suit. The court may, however, advise the manager of the property of the minor to take such action as may be considered to be in the interest of the minor and as may appear to be just and proper to the court.