Kuppuswami Ayyar, J. -
(1.) THESE appeals are against the orders passed by the learned District Judge of Trichinopoly dismissing I.A. Nos. 420 of 1938 and 158 of 1938 filed by the appellant in these appeals. The appellant (petitioner) is the heir of his step -mother, the late Alamelu Ammal, the widow of one Gopalaswami Naidu, who was declared a lunatic and for whom one Govindammal was appointed as guardian and manager of the person and property in O.P. No. 94 of 1929 on the file of the District Court, Trichinopoly. Certain nanja and punja lands and a house had been devised to her by her father. Her husband died, and there was, as it were, a scramble for the possession of the properties allotted to her, with the result that one Rangaswami Naidu as next friend of Alamelu Ammal filed a suit, O.S. No. 193 of 1929 in respect of the properties. He it was that filed O.P. No. 94 of 1929 also. It was ultimately ordered and Govindammal was appointed manager and guardian. The matter was taken to this Court in appeal which was dismissed: vide C.M.A. No. 504 of 1929. Govindammal obtained possession of these properties and was in enjoyment of the same till the death of Alamelu Ammal. She continued to be in possession after the death of the lunatic also. The present appellant claimed to be the heir of Alamelu Ammal and sought to have the properties delivered over to him. He claimed to be the step -son of Alameln Ammal. He was directed to a suit and he filed a suit and obtained a decree declaring that he was the heir of Alamelu Ammal entitled to inherit her properties. That was O.S. No. 781 of 1933 on the file of the District Munsif's Court of Trichinopoly. The litigation was taken up to this Court in S.A. No. 435 of 1938, and he was recognized as heir entitled to recover the properties of Alamelu Ammal. The properties were delivered over to him. He then filed these two petitions out of which these two appeals arise, praying in I.A. No. 158 of 1938 filed under Sections 77 and 79, Lunacy Act, to take an account of the amount payable by the guardian Govindammal and to direct the respondents who had executed a security bond MS sureties along with the manager Govindammal to pay the amount which, according to the appellant, came to Rs. 2761 -13 -6. It is the petitioner's case that a scrutiny of the accounts submitted by Govindammal would reveal that various items of receipts had hot been given credit to and various false and inadmissible items of expenditure had been included in the accounts. Two lists of the various amounts claimed under the two heads were also filed. A commissioner was appointed to go through the accounts and submit a report. The commissioner reported that the appellant failed to appear before him during Home of the hearings and he therefore submitted a report after hearing only the respondents. The learned Judge, observing that he had carefully perused the report and stating that in applications of this kind the petitioner must make out a prima facie case before asking for an assignment of the security bond and that the petitioner had failed to make out such a case, dismissed that petition. During the pendency of that application, the appellant filed I.A. No. 420 of 1938 Under Section 79, Lunacy Act, praying that the Court may be pleased to grant leave to the petitioner to sue the legal representative of the manager and the sureties for an account of the management of the estate of the lunatic and to assign the security bond executed by the sureties in favour of the petitioner to enable him to collect the amount that may be found due. That petition was also dismissed. It is as against the orders on both these petitions that these appeals have been filed.
(2.) IT is not disputed that the appellant is the heir of the deceased Alamelu Ammal entitled to succeed to her estate. There was a decree in favour of the appellant, the matter was taken to this Court and that decree has been confirmed. If therefore money is due by the manager of the lunatic's estate to the estate of Alamelu Ammal the appellant will be entitled to recover it. Govindammal the manager is dead, and it is as against the sureties who executed the surety bond along with her and the heirs of Govindammal that these petitions have been filed. Under Section 79, Lunacy Act
Any relative of a lunatic may with the leave of the District Court sue for an account from any manager appointed under this chapter, or from any such person after his removal from his office or trust, or from his legal representative in case of his death, in respect of any estate then or formerly under his care or management or of any sums of money or other property received by him on account of such estate.
Under this section, leave of the Court appointing the manager under the Lunacy Act has 10 be obtained before any such suit could be filed, and that was why I.A. No. 420 of 1938 was filed. To sue a surety it does not appear that any such sanction is necessary and there is also no express provision in the Act for an assignment of the security bond. Such bonds are executed to the Courts and when the surety bonds are obtained, they are intended to be enforced if any money should become payable by the manager. If any such money become payable by the manager a suit will have to be filed for enforcing the bond either by the Court or by a party to whom the Court might assign the bond. It is true there is no provision in the Act for assigning the bond as in cases under the Guardians and Wards Act. But then, since the bond was executed with a view to be enforced and one of the ways of enforcement is by assigning the bond to the person entitled to recover the amount, the proper course would be to assign the bond to the heir of the lunatic. If there are sufficient circumstances to indicate that some amount is likely to be due from the manager or the estate, the proper course would be to assign the bond even before the suit is filed if there be a prima facie case, for it would be necessary to have the matter decided in the presence of the sureties as to whether any amount had become payable from the manager to the estate of the lunatic. Therefore the only other point for consideration is whether any prima facie case has been made out that any amount is owing to the estate of the lunatic from the manager.
(3.) ALL that the learned District Judge says is that he had read the commissioner's report and that there were no materials before him to show that a prima facie case had been made out. As already stated above, the suit to recover possession of the properties was filed by one Rangaswami Naidu as next friend (O.S. No. 193 of 1929) and it was that Rangaswami Naidu that filed the petition, O.P. No. 94 of 1929 and it was he that was a party to the proceedings in this Court on appeal. In the account submitted by the manager, Govindammal, she had included various amounts said to have been expended both in Court and out of Court by Rangaswami Naidu in connexion with those proceedings, some of which were incurred before Govindammal was appointed as manager. I find in a verified petition filed by Govindammal on 7th December 1931 in O.P. No. 94 of 1929 stating that she considered the interest of Rangaswami Naidu and herself as being identical and that whatever expenses were incurred in the matter of the conduct of the proceedings in the suit and the proceedings under the Lunacy Act may be taken as "having been, nonetheless, incurred by Govindammal," and very large amounts were claimed as due to Govindammal the manager because it was expended by Rangaswami Naidu. But it does not appear that any orders had been passed by the District Judge recognising these amounts as amounts in respect of which credit was to be given to the manager, although the amount was not spent by her but by Rangaswami Naidu. That is one of the main points to be considered. Several amounts had been shown as having been paid over in connexion with amin's warrants, etc., for going to Court, engaging motor cars, taking sureties to Court, etc. It does not appear that any orders of the Court were obtained for expending such amounts. Further, they are not amounts spent by Govindammal but by Rangaswami. Rangaswami might have a claim and without that claim being recognized, how far Govindammal as manager will be entitled to treat them as amounts due to her merely because Rangaswami said he would not claim them against the estate and that it would be enough if they were given to Govindammal is a matter which has not been considered by the District Judge.;