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Evidence Taken By Court

Section 46 of Guardians and Wards Act does not control s 13 so as to enable District Judge to dispense with the hearing of evidence by himself and to transfer the whole enquiry to a subordinate court. Still less does it empower the District Judge to admit the evidence recorded by the Subordinate court and to base his decesion thereon.

Thus where a District Judge upon receiving an application for the appointment of a guardian,sent the application to the Subordinate Judge,fixed a day for hearing the same before the Subordinate Judge, and directed the court to take evidence and report on the case, and the Subordinate Judge recorded the whole evidence and submitted a report, upon the strength of which the District Judge disposed the application, it was held that the procedure adopted by the District Judge was illegal and vitiated the whole inquiry.

Section 46 empowers the District Judge to call upon any subordinate court to report on any ( i.e any particular) matter in any proceedings under this Act,and to treat the report as evidence, but this does not mean that the whole enquiry could be handed over to the Subordinate Judge, so that the District Judge might thus be enabled to dispense with the hearing of the evidence by himself and practically transfer the whole investigation of material issue of fact to the Subordinate court.

But where the District Judge referred a particular matter to the Subordinate Judge, as for instance, where the judge made a reference to the Munsif to record evidence and make a report as to the fitness of an applicant for Guardiship, such reference was not against law. And where the District Judge treating the Munsiff's report as evidence and after examining the minor, rejected the application, the procedure not to be regarded as either illegal or irregular.

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