KUNDAN LAL Vs. BHAGWATI SARAN

JUDGEMENT

(1.) This is an application in revision against an order passed by the Officiating District Judge, Agra, in a matter under the Guardians and Wards Act. Mt. Shyam Dei was appointed guardian of the property of her minor son, Hari Bhankar, who owned certain landed property. She executed a lease in favour of Kundan Lal and another in respect of that property at an annual rent of Rs. 895. The term of the lease was seven years. It was executed on 7 February 1932. A few months afterwards, one Bhoj Raj, who is alleged to be on bad terms with Kundan Lal, made an application to the District Judge intimating that the opposite party, Bhagwati Saran, was willing to pay for the same land an annual rent of Rs. 950-3- 8 for a term of five years. The application also drew the attention of the District Judge to the fact; that the lease in favour of the applicant, Kundan Lal was given without the permission of the District Judge, required by Section 31, Guardians and Wards Act. The District Judge issued a notice to the guardian and the applicants, Kundan Lal and others and passed the following order on 15 July 1933, which is challenged in revision: The lease in favour of Kundan Lal and others is cancel led if Bhagwati Saran is willing to take the lease at Rs. 950-3-8 for five years on the same conditions as Kundan and also the arrears of rent, purchased by him, the lease will be granted to him provided he deposits the profit in advance every year and also the arrears of rent purchased by Kundan Lal. The draft to be filed. The cancellation will take effect from the date the now lease is registered. The proceedings taken by Kundan Lal before the cancellation will be valid.

(2.) 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 Guardians 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 he 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 minor's 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 Section 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 minor's property and do everything which the guardian might do, besides cancelling an instrument executed by the latter.

(3.) While it was open to the learned Judge to invite the guardian 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 opinion expressed by the District Judge cannot affect the rights of one or the other. For the reasons stated above I set aside the order of the District Judge challenged in revision. It will, of course, be open to the District Judge to pass such order on the application of the guardian or otherwise which is justified by the provisions of the Guardians and Wards Act. The parties shall bear their own costs.