S.G. Sale, J.

1. This is an application for the appointment of the adoptivemother of the infant Srish Chunder Singh as guardian of his person and propertymade under Clause 17 of the Charter, and also under Section 7 of the Guardiansand Wards Act. The circumstances under which it is made may be shortly statedas follows : Srish Chunder Singh was taken in adoption by the widow of GrishChunder Singh, as a son to Grish Chunder Singh. Grish Chunder Singh, who wasentitled to a share of very large properties, called the Paikpara Raj Estate,which originally belonged to two brothers, Issur Chunder Singh and PertapChunder Singh, died in 1877, leaving a will by which he appointed his uterinebrothers Poorno Chunder Singh, Kanti Cunder Singh, and Sarut Cunder Singh, andhis paternal uncles son Indra Chunder Singh, his executors. The terms of theappointment will be more particularly referred to presently.

2. At that time the family was joint, and the joint Paikparaestate was in charge of the Court of Wards and remained in charge of the Courtof Wards till 1879. It was then, including the share of Grish Chunder Singh,made over to Poorno Chunder Singh, Indra Chunder Singh, and Sarut ChunderSingh, the share of Grish Chunder Singh being managed by them as his executors.

3. In 1889 a suit (No. 41 of 1889) was brought by SarutChunder Singh, one of the sons of Pertab Chunder Singh, for partition of thejoint estate. In the same year, a suit No. 235 of 1889 was brought by SrishChunder Singh, the adopted son of the petitioner, through the petitioner as hisnext friend, against the other members of the joint family, for the removal ofSarut Chunder Singh from acting further as executor to the estate of GrishChunder Singh, and for an injunction and other relief. The case alleged againstSarut Chunder Singh was that he had improperly dealt with large sums of moneybelonging to the estate. In 1891 a decree was made in the last mentioned suit,directing an account as against Sarut Chunder Singh and Indra Chunder Singh, asthe surviving executors to the estate of Grish Chunder Singh.

4. On the 2nd February 1892 Sarut Chunder Singh filed hisaccount. In the objections taken to this account it is alleged that the accountis to a great extent unintelligible; that it is incomplete and insufficient;that it does not give credit for the whole income derived from Grish ChunderSinghs share in the joint estate, and that the disbursements charged in theaccount are not all properly chargeable against the share of Grish ChunderSingh. Indra Chunder Singh, though directed to file his account, has not doneso.

5. It is an important fact that in the partition suit aReceiver was appointed of the whole Paikpara Raj estate. Thereupon the Receivertook charge and has ever since remained in charge of the estate.

6. The statements upon which the petitioner relies are, thatby an award made by the arbitrator appointed in the partition suit to decideall matters in dispute between the parties, and to carry out the partition ofthe joint estate, the zemindaries belonging to the estate have beenpartitioned; that on the award being confirmed the Receiver will be dischargedas to such zemindaries; that the share allotted to Srish Chunder will then passinto the hands of the executors, who are unfit to take charge of it; that thisshould be prevented by the appointment of the petitioner as guardian.

7. It should, however, be stated that pending thisapplication the award was remitted to the arbitrator for amendment and forreconsideration as to certain properties left unpartitioned. The resultapprehended by the petitioner has thus been postponed.

8. The petitioner claims to be entitled to the order soughtin the present application, both under the power which this Court has under itsCharter, and also under the terms of the Guardians and Wards Act. The infant,it is admitted, resides outside the Original Civil jurisdiction of this Court,and the difficulty I have in proceeding under the jurisdiction given by theCharter is this : In the first place I am not aware of any instance in whichthis Court has exercised that jurisdiction in the case of an infant residingoutside the ordinary Original Civil jurisdiction of this Court, who is otherthan a European British subject. And, further, it does not appear to be thepractice of this Court, or of the English Courts, to act in a summary waywithout suit in the appointment of a guardian, except where no difficultyarises in the administration of an estate. Here there is an important questionarising as to whether there are not now in existence persons in the position oftestamentary guardians of the infant; at all events a claim is made on behalfof Sarut Chunder and Indra Chunder that they are in that position, and I do notthink I should be justified in a summary proceeding, under the jurisdictionconferred by the Charter, to appoint a guardian as against those persons. I mayalso say, having regard to the terms of the "Guardians and WardsAct," that even if the Court were now to act under the powers conferred bythe Charter, still, in exercising those powers, it would not disregard, but asfar as possible follow, the principles and procedure laid down in the Guardiansand Wards Act. Coming to the terms of the Act, we find the definition of theword Guardian" in the 4th section of the Act as follows: "Guardian meansa person having the care of the person of a minor, or of his property, or ofboth his person and property."

9. Now the question is whether, under the terms of the willappointing the executors and defining their powers, guardians of propertywithin the meaning of the Act have in fact been appointed. By the second clauseof the will the testator appoints his uterine brothers, Poorna Chunder Singhand Kanti Chunder Singh, executors, and directs that his youngest brother SarutChunder Singh, and his paternal uncles son Indra Chunder Singh, who were thenunder age, should on attaining their majority also become executors.

10. Their powers in connection with the estate of thetestator are thus defined in the 10th clause of the will: "If the partywho is entitled to the property be under age, then the whole of my propertywill pass into the hands of my executors, and until the person so entitled asaforesaid shall attain the full age of 21 years, they shall manage all theproperty and the duties of the management and education of the said son shallbe conducted under the supervision of my wife.

11. Now that, I take it, gives to the persons who areappointed executors the care and management of the property until the infantattains the full age of 21 years, and I therefore think this appointment didconstitute the executors guardians within the meaning of the Guardians andWards Act.

12. The 7th section of the Act provides that "where theCourt is satisfied that it is for the welfare of a minor that an order shouldbe made appointing a guardian of his person or property, or both, or declaringa person to be such a guardian, the Court may make an order accordingly;"and the second clause of the section says that "an order under thissection shall imply the removal of any guardian who has not been appointed bywill or other instrument, or appointed or declared by the Court." This iscontrolled by Sub-section 3. "Where a guardian has been appointed by willor other instrument, or appointed or declared by the Court, an order under thissection, appointing or declaring another person to be guardian in his stead,shall not be made until the powers of the guardian appointed or declared asaforesaid have ceased under the provisions of this Act."

13. The present application is not one for the removal ofSarut Chunder Singh and Indra Chunder Singh : indeed, what has been contendedis that these persons are not testamentary guardians of the infant, It may bethat it is undesirable that the infants estate should, under present circumstances,and until the charges made against Sarut Chunder Singh have been determined,revert to the care of Sarut Chunder Singh or Indra Chunder Singh, but that is amatter not before me at the present time, and the arguments addressed to me,though they might perhaps be of considerable weight in opposition to anapplication for the discharge of the Receiver, or in support of an applicationto continue the Receiver, so far as the estate of the infant is concerned, andso to prevent the property coming into the charge of either of the executors,do not assist the petitioner on the present application. I therefore think,having regard to Section 7, that I am at present precluded from making anyappointment of guardians of the property of the infant. As regards theapplication for the appointment of a guardian of the person of the minor, theAct provides that the application should be made to the Court in whosejurisdiction the minor resides.

14. Therefore, I think I have no power to make the orderasked for. The application must be dismissed and the costs of Sarut ChunderSingh must be paid by the applicant. The Receiver, being in possession of theproperty, was right in appearing, and he will be at liberty to pay his owncosts out of the estate, which will be debited to the share of the infant inthe general estate. The Receiver will also be at liberty to pay the costs ofSarut Chunder Singh out of the infants share in the general estate.

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In Re: Srish Chunder Singh and Ors. (11.09.1893 - CALHC)