9911796707
TMI Blog1930 (2) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of objection was not pressed further. There is, however, on the record a letter addressed to the District Judge by the minor himself which bears the date of 25th April 1928 which indicates that at that point of time, the minor was opposed to the appointment of his sister as guardian either of his person or his property. On 13th July 1928 an order was recorded that the applicant will be appointed guardian of the person and property of the minor on furnishing security of Rs. 6,000. 2. Security bond was duly filed on 28th August 1928, and the Nazir of the Court was directed to test and report. 3. An important development in the case, however, began from 8th September 1928, when the District Judge received a letter from the Deputy Commissioner of Police, Calcutta, informing that the minor was being prosecuted in the Juvenile Court, Calcutta, for an attempt to commit suicide The Deputy Commissioner appears to have been supplied with the names of relatives for the purpose of enabling him to sound them as to' whether any of them was willing to be the guardian, and if so to apply to the Court for appointment as guardian and for removal of the present guardian. 4. The ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to produce evidence to show that it was incorporated under its Memo. of Association and Articles to act as guardian of minor's property. Thereafter the Society, through its Secretary filed a scheme of management of the minor's property and other materials before the Court in support of the application for guardianship of property; and on 18th December 1928, the Society was appointed guardian of the minor's property. Against the two orders passed by the District Judge on. 6th and 18th December 1928, mentioned above, the present appeal is directed. 6. Before going into the questions specifically raised, in support of the appeal, I would dispose of the point that arises for consideration on the order by the learned District Judge on 6th December 1928. By the order, the learned Judge refused to appoint a guardian of the person of the minor. It seems to me on the facts and in the circumstances disclosed in the evidence before the Court, regard being particularly had to the deposition of the minor Shib Ram Nandi in Court, that it is eminently desirable that a guardian of the person of the minor should be appointed. The learned Judge had some suspicion in his mind as to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of any other near relation Srimati Ashalata Roy should be appointed guardian of the minor Shib Ram Nandi. 8. The other part of the case relating to the appointment of guardian of the minor's property, has now to be considered. Anyone having an interest adverse to that of the minor cannot be appointed such guardian, and for the proper management of the property the character, the capacity and the fitness of the individual to be appointed has to be taken into consideration. It is for this reason that an individual only is appointed by the Court as guardian. The provision relating to the appointment of guardian as contained in the Guardians and Wards Act are based on this principle, which has been accepted by Courts in this country and in England. The reason underlying the principle as stated above is to guide the Court, whether the Court acts under its general powers in the exercise of its general jurisdiction or applies the provision of the Guardians and Wards Act as it is done by Courts in the moffusil in Bengal, in the matter of appointment of a guardian of a minor. Some stress was laid on the definition of the word person as contained in the General Clauses Act, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aised before us as to whether a person appointed a guardian must be resident within the jurisdiction of the Court making the appointment, need not also be discussed : although in view of Section 39, Guardians and Wards Act, under which enactment, the present proceedings have been started and carried on, it is perhaps intended by the legislature that a Court will not appoint as guardian anyone who resides outside jurisdiction. 11. It remains now to consider the question whether Srimati Ashalata Roy who was considered to be a fit and proper person by the learned District Judge to be the guardian of the person and property of her minor brother Sibram Nandi as indicated by the Judge's order of 11th July 1928, recorded in the order-sheet, should be appointed guardian of the property of the minor, on her furnishing security to the satisfaction of the Judge. As noticed in the previous part of the judgment, a security bond was tiled and remained to be tested. A point has been made on behalf of the appellant that in view of the Judge's order referred to above, the appointment of any other person could not be legally made. The question thus raised is of a somewhat technical nature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the person of the minor was in my opinion far more urgently called for than the appointment of a guardian for his property. The District Judge appears to have mis appreciated the relative importance of the two matters, and while leaving the first one undetermined has made a definite order on the latter. He has observed that he was unable on the evidence to hold that the minor was driven to an attempt to commit suicide owing to the ill-treatment he received from his brother-in-law and his sister, and yet he has said that in view of such attempt, whatever was the reason for it, he was unable to appoint or confirm the appointment of the sister. This I am unable to approve. This sister is the only near relative of the minor and I do not see any reason to suppose that she will not treat the brother with all the care and consideration that he is in need of. Her husband may not be in affluent circumstances, but that is no reason for suspecting that he will not help his wife in looking after the minor's welfare, the minor will not be a burden but rather a welcome guest so far as he is concerned. The order of the learned Judge that the sister and her husband will allow the accredited ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
