When court will permit opening of account in case of guardian and ward?

Chambers of Ishaan Garg

Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054

+91 8851742417, +91 8800386163

Where a person entitled to an account alleges and proves facts which show that, at any rate in respect of one item, sums other than those received would have been received by the person liable to account but for his wilful neglect or default, the latter will be liable to account not only for what he has in fact received but for what he ought to have received. An intentional default may be held to be wilful if he was careless or forgetful. 'RADHIKAPRASAD v. NANDKUMAR', (supra.) In the case of reopening of accounts, Jessel, M. R. says that.

"if the Court is of opinion that errors of sufficient number and sufficient magnitude are shown, it is not necessary that the errors shown should amount to fraud. If they are sufficient in number and importance, whether they are errors caused by mistake or errors caused by fraud, the Court has a right to open the accounts..........When the account is between persons in a fiduciary relation and the person who occupies the position of the accounting party - that is, trustee or agent - is the defendant, it is easier to open the account than it is in cases where persons do not occupy that position - that is to say, that a less amount off error will justify the Court in opening the account.

"..........where you show a single fraudulent entry in the case of persons occupying the position of principal and agent, or trustee and 'cestui que trust', the Court has actually opened an account extending over a greater number of years and closed for a much longer period than the account I have before me.

(Note: It was for twenty years).

"We therefore have this as a sort of guide without laying down any general rule, because every case must depend on its own circumstances, that where the accounts have been shown to be erroneous to a considerable extent both in amount and in the number of items, or where fiduciary relations exist and a less considerable number of errors are shown, or where the fiduciary relation exists and one or more fraudulent omissions or insertions in the account are shown, there the Court opens the account and does not merely surcharge and falsify. 'WILLIAMSON v. BARBOUR',(1877) 9 Ch D 529; 'BHAGWAN BAKSHI SINGH v. DAMODARJI JOSHI',42 All 230. By S. 20 of the Act the defendants stand in a fiduciary relation to the plaintiff ward.

IN THE HIGH COURT OF NAGPUR

First Appeal No. 127 of 1944

Decided On: 05.07.1951

Ramlalsao

Vs.

Tansingh Lalsingh

Coram:

R. Kaushalendra Rao and Deo, JJ.

Citation:1952 NLJ 278 Nagpur