MAHENDRA BHUSHAN, J. - (1.) THIS Special Appeal has been filed against the judgment of the learned Single Judge dismissing the Civil Miscellaneous Appeal of the appellant filed in this Court.
(2.) THE facts of the case out of which this appeal arises are simple and may lie in a narrow compass. Kumari Geeta is the daughter of one Bhagirath Ram and the respondent Banarsi Devi. When Kumari Geeta was hardly six months old, she suffered from polio in both of her legs and is since then polio-stricken and as such a crippled child. Her father, Bhagirath Ram, was a police constable in the police Department of Rajasthan and died on April 24, 1975 leaving behind Kumari Geeta, a widow smt. Banarsi Devi respondent and his mother, the appellant Smt. Naraini Devi. After the death of the said Bhagirath Ram, besides the gratuity, a sum of about Rs 100/- p. m. was sanctioned as pension to Kumari Geeta being the daughter of Bhagirath Ram. On the 12th day of the death of the said Bhagirath Ram, the respondent conducted a 'nata' marriage with Bhinwa Ram, younger brother of Bhagirath Ram leaving Kumari Geeta in the custody of the appellant. As the payment of the family pension sanctioned to Kumari Geeta could not be made without a guardianship certificate from a competent court, the appellant as the grand-mother of Kumari Geeta, applied under sec. 7 read with sec. 10 of the Guardians & Wards Act, 1890 (hereinafter referred to as the Act) in the Court of the learned District Judge, Jaipur District, Jaipur, for her appointment as the guardian of the person and property of minor Kumari Geeta. That case was not contested by the respondent, and, on the other hand, she did not object to the appointment of the appellant as the guardian of the person and property of the minor Kumari Geeta. The learned District Judge, therefore, appointed the appellant as the guardian of the person and property of the minor Kumari Geeta on September 22, 1976. After her Nata Marriage with Bhinwa Ram, a female child was begotten and after about 11 months of the death of said Bhagirath Ram, Kumari Bhagwati was born to the respondent. It appears that the respondent left Bhinwa Ram and went away to live with her parents at Sikar. On May 7, 1977, the respondent submitted an application before the learned District Judge, Jaipur District, Jaipur under section 7 read with sec. 10 and section 39 of the Act for her appointment as guardian of Kumari Geeta and Kumari Bhagwati and for removal of the appellant from guardianship of the person and property of Kumari Geeta. The learned District Judge, after making necessary enquiry in accordance with the Act, accepted the application of the respondent and appointed the respondent as the guardian of the person and property of the minors Kumari Geeta and Kumari Bhagwati, and cancelled the order dated September 2, 1976 appointing the appellant as the guardian of the person and property of minor Kumari Geeta. The appellant preferred a S. B. Civil Misc. Appeal (No. 136/77), which too was dismissed by the learned Single Judge on January 25, 1979, as stated above. The main contention of the learned counsel for the appellant is that the learned Single Judge has erred in holding that technically it may be an application under sec. 39 of the Act, otherwise, in substance, it is an application for appointment of the respondent as guardian of the person and property of the minors. According to the learned counsel, once a guardian is appointed by the Court under the Act, no fresh guardian can be appointed unless the guardian appointed by the Court is remove for one of the causes mentioned in s. 39 of the Act. According to him, the learned Single Judge has not addressed himself to this important matter. It is further contended that no case of abuse of trust or of continued failure of the appellant of the duties of her trust was made out either in the application or in the evidence, and therefore, the appellant, who was a guardian appointed by the Court, could not have been removed, and without such removal the respondent could not have been appointed as a guardian afresh of the minor Kumari Geeta. The learned counsel for the respondent, who had appeared at the initial stages, supported the judgment of the learned Single Judge, and, according to him, a clear case of abuse of trust was made out against the appellant, and, therefore, she was rightly removed from the guardianship. At the very outset, we will observe that the approach of the learned Single Judge was not correct when he observed as follows: - "technically it may be a case of removing the appellant from acting as guardian already appointed by the Court, but in essence the Court has to determine as to which of the two parties can be most suitable for acting as a guardian in the welfare of the minor".
(3.) WHILE making his observations, the learned Single Judge did not take into consideration the various provisions of the Act. Sec. 7 of the Act deals with the powers of the Court to make order as to guardianship and sub-section (3) of the said section makes it clear that when a guardian is appointed or declared by the Court, an order under sec. 7 appointing or declaring another person to be guardian in stead shall not be made until the powers of such a guardian have ceased under the provisions of the Act. In sec. 41 of the Act, it is provided as to when the powers of a guardian of the person or property or both of the minor cease. Under sub-sec. (2) of sec. 41, the powers of a guardian of the property of the minor only cease on his removal, discharge or death. Under sec. 42 of the Act, when a guardian appointed or declared by the Court is discharged or ceases to be entitled to act, the Court of its own motion or application under Chapter 11 (2) may, if the ward is still a minor, appoint or declare any guardian of his person or property or both, as the case may be. Section 39 of the Act deals with removal of guardian, and a guardian appointed or declared by the Court can only be removed for any of the causes (a) to (f) of this section. It will, therefore, be clear from a reading of these provisions that under section 7 of the Act a fresh guardian in place of the one appointed or declared by the Court cannot be appointed unless the guardian appointed or declared by the Court ceases to act under sec. 41 of the Act on the grounds of his removal or discharge and the other grounds with which we are not concerned. A perusal of the judgment of the learned Single Judge will make it clear that he has treated the case essentially as one of appointment of the respondent as a guardian of the person and property of minor Geeta. We will like to observe here that so far as the minor Kumari Bhagwati is concerned, there is no dispute before us, and the only dispute is with regard to Kumari Geeta. The learned Single Judge has nowhere given a finding that the removal of the appellant from the guardianship of the person or property or both of minor Geeta is necessary for any of the causes mentioned in sec. 39 of the Act. On the contrary, he has observed that the respondent is the mother of the minor, and there is no allegation or ground whatsoever to hold that the respondent is in any manner unfit to be a guardian of the minor, and further that, merely because the appellant was appointed as guardian on 22-9-1976, it cannot deprive the respondent to move an application for her appointment, which can only be done by removal of the appellant as guardian of Kumari Geeta, and sec. 39 cannot come in the way. We have already referred to the various provisions of the Act, and we are of the opinion that once a guardian of the person and property of the minor is appointed or declared by the Court, no other person in his place can be declared or appointed guardian unless the guardian once appointed is removed and thereby ceases to act. We have also observed that the same was the approach of the learned District Judge, and she also fell in error when, inspite of the fact, she had framed issue No. 1 about the abuse of the trust, she essentially treated the application as one for the appointment, and at the fag end said that the order of the appointment of the appellant as guardian is cancelled. Because the learned Single Judge has not given any finding about the abuse of trust by the appellant, we have examined the record of the case. A perusal of the application of the respondent under sec. 7 read with sec. 10 and sec. 39 of the Act moved on May 7, 1979 before the learned District Judge will show that it is only mentioned therein that the amount received as pension and other amounts received have not been spent on the maintenance of the minor and have been divided by the appellant and two others amongst themselves. Smt. Banarsi respondent (AW1) only in a general way has stated that the appellant received the amounts as guardian of the minor, but not a single penny has been spent over them. She does not say as to what amount was received by the appellant. She also does not say about any division of the amount in between the appellant and others. The other witnesses for the respondent do not state anything on this point. The Court called upon the appellant to furnish accounts of the amount received by her for the minor as guardian and the same is at page A. 18/1 of the file of the learned District-Judge, and it appears from a perusal that a sum of Rs. 1,000/- was deposited in fixed deposit and a sum of Rs. 1,500/- was spent over the maintenance of Kumari Geeta during the period of 26 months. No doubt, it also appears from the account that about Rs. 1,000/- were spent over litigation forced on the appellant by the respondent and in securing the grant of pension in favour of minor Geeta. But, there is no record that under Sec. 34 of the Act a guardian appointed by the Court, viz. , the appellant was ever required by the Court either to give a bond or exhibit or produce the accounts. The amount of pension to be received by the appellant for minor Kumari Geeta was also to be utilised for the maintenance and upkeep of the minor Kumari Geeta, and merely because Rs. 1,500/- were spent by the appellant over the maintenance of the minor, and merely because vouchers for the medical treatment have not been produced, it cannot be said that a case of abuse of trust is made out against the appellant. No doubt, in our opinion, the appellant could not have spent any amount even over the maintenance of the minor Geeta, what to say of incurring other expen-ces, without obtaining the permission of the Court under sec. 34 (e) of the Act. But, looking to the fact that she is an illiterate lady and further looking to the fact that there is no material on record that the Court to order her to exhibit or furnish accounts, it cannot be said that in the facts and circumstances of the case say abuse of trust is made out. There may be cases where inspite of the orders of the Court the guardian may not furnish accounts, and then there may be occasion to say that the guardian by not furnishing accounts has failed to perform his duties of his or her trust and a case of removal may be made out, but that is not the case bore, as we have already observed above that there is no material with the Court while appointing the appellant as guardian of the property of minor Kumari Geeta over ordered exhibiting or furnishing accounts. The Court has always powers to order the guardian to furnish accounts or to deposit the amount received for and on behalf of the minor in the Court. On the evidence on record, therefore, we are of the opinion that no case of the abuse of trust or continued failure to perform the duties of her trust under sec. 30 (a) and (b) of the Act is made out and it is not the finding of the learned Single Judge or even of the learned District Judge. Therefore, no case for removal of the appellant, who was appointed as a guardian by the Court on 22-9-1976 of the person and property of the minor is made out under any clauses of sec. 39 of the Act. The learned Advocate for the appellant has given in writing that hence forth all sum received for the minor shall be deposited in the Post Office. Account No. 555447, which has already been opened in Post Office, Moriya. He has shown the Pass Book to us, from which it appears that a sum of Rs. 1,500/- has been deposited. We direct the appellant to deposit the balance of the amount which remains with her out of the amounts received by her for and on behalf of the minor within a period of two months. Once we have come to the conclusion that no case of removal of the appellant from guardianship of the person and property of the minor Kumari Geeta is made out, it is not necessary for us to deal, as to whether the respondent could be appointed as a guardian in place of the appellant, in as much as, according to law, unless a guardian appointed or declared by the Court is first removed, no other person can be appointed as a guardian under the Act. But, we may observe here that as and when an application for appointment as a guardian is made, it is to be first considered, as to whether it is really necessary to appoint a guardian at all,; and merely because an application is made for the appointment of a guardian of the person or property or both of the minor, the appointment is not a must. So far as the person of minor Kumari Geeta is concerned, it may be said that even the learned District Judge or the learned Single Judge has not said that there is material on record that the minor is not being looked after by the appellant. We have already given a direction above that apart from Rs. 1,500/-, which have been deposited in the Post Office Account, the rest of the amount received for on behalf of the minor was also to be deposited in the Post Office Accords as the learned Advocate for the appellant has given in writing that henceforth any amount received for the minor shall not even be spent over her maintenance Apart from it, we may also observe that under sec. 34 (e) of the Act, permission of the Court is necessary for any expenses to be incurred even over the maintenance of the minor. Therefore, there appears to be no necessity to remove the appellant from the guardianship of Kumari Geeta and appoint the respondent in stead. ;