Introduction of Section 36
Section 36 of the Guardians and Wards Act, 1890, provides a remedy for the ward or any person acting on the ward’s behalf if the guardian has not been required to give a bond to account for the ward’s property. This provision allows for a suit to be filed against the guardian for an account of what has been received in respect of the ward’s property, even if no bond was taken. The suit can be initiated by a person acting as the “next friend” of the ward, and it ensures that the guardian is held accountable for the ward’s property, whether the guardian is alive or deceased.
Text of Section 36:
(1) Where a guardian appointed or declared by the Court has not given a bond as aforesaid, any person, with the leave of the Court, may, as next friend, at any time during the continuance of the minority of the ward, and upon such terms as aforesaid, institute a suit against the guardian, or, in case of his death, against his representative, for an account of what the guardian has received in respect of the property of the ward, and may recover in the suit, as trustee for the ward, such amount as may be found to be payable by the guardian or his representative, as the case may be.
(2) The provisions of sub-section (1) shall, so far as they relate to a suit against a guardian, be subject to the provisions of section 440 of the Code of Civil Procedure (14 of 1882) as amended by this Act.
Simplified Explanation:
Overview: Section 36 allows a person (usually a relative or friend of the ward) to file a lawsuit on behalf of the ward, known as a “next friend,” if the guardian has not provided an administration bond. The purpose of the suit is to obtain an accounting of the ward’s property from the guardian, even if the guardian has not been required to provide a bond. If the guardian is found to have mismanaged the property, the court may order them (or their representative, in the case of the guardian’s death) to pay the ward any amount that is due.
Key Points of Section 36:
- No Bond Required: This provision applies when the guardian has not been required by the court to give an administration bond to account for the ward’s property.
- Suit by Next Friend: Any person, with the court’s permission, can file a suit against the guardian on behalf of the ward. The person must act as the “next friend” of the minor.
- Accountability: The suit aims to obtain an account of what the guardian has received from the ward’s property and can recover any misappropriated or unaccounted funds on behalf of the ward.
- Guardian’s Representative: If the guardian has passed away, the suit can still be pursued against the guardian’s representative (e.g., an heir or legal representative).
- Subject to Civil Procedure: The procedure for filing the suit is governed by the provisions of section 440 of the Code of Civil Procedure, which relates to the conduct of suits involving minors.
Purpose and Scope: The primary purpose of Section 36 is to provide a legal remedy in situations where a guardian has not been required to give a bond. It ensures that even in the absence of such a bond, the guardian can still be held accountable for managing the ward’s property. The section is designed to protect the financial interests of minors who may be vulnerable to mismanagement by their guardians.
Practical Impact: This section empowers any person with the court’s permission to seek financial redress for the minor if there is suspicion that the guardian has not properly handled the property. It ensures that the ward’s assets are protected, even in cases where the guardian was not initially required to provide a bond. The court’s intervention can lead to the recovery of funds that may have been improperly handled by the guardian.
Examples:
- Guardian Not Accountable for Property: A guardian fails to provide an account for the income from the ward’s property. A family member, with the court’s approval, files a suit on behalf of the ward to obtain an accounting of the property and recover any funds that have been mishandled.
- Mismanagement of Funds: A guardian uses the ward’s funds for personal expenses instead of for the ward’s benefit. The ward’s uncle, acting as the next friend, files a suit to recover the misused funds from the guardian’s estate.
- Guardian Dies Without Accounting: A guardian dies without properly accounting for the ward’s property. The ward’s legal representative files a suit against the guardian’s estate to recover the missing funds, seeking an accounting of the property managed by the deceased guardian.
Conclusion:
Section 36 ensures that the financial interests of a minor are protected, even in the absence of an administration bond. It allows for the appointment of a “next friend” to take legal action on behalf of the ward to recover any mismanaged or unaccounted funds by the guardian. The provision strengthens the guardianship framework by holding guardians accountable for the property they manage, ensuring the ward’s assets are safeguarded until the ward reaches maturity.
