1. The judgments of Shall and Crump JJ. state the facts with such fulness and clearness that I need not repeat them.
2. The point for decision is whether Sections 31 and 32 of the Bombay Court of Wards Act are applicable to this suit. I find that they are not.
3. By the Gujarat Talukdars' Act and Court, of Wards Act the right to sue a Talukdar in the one case and a Government Ward in the other, is left unaffected, except in certain specified cases with which we are not now concerned; though suits against the Court of Wards and Officers acting thereunder are broadly speaking prohibited by Section 45 of the Court of Wards Act. The point I wish to emphasise is: that the suits which are unaffected are suits, not against Government or any officials, but against the Talukdar or the Government Ward in person and by name. This is clear from the provisions of the Acts in general and from Section 16, Clause (3), of the Court of Wards Act and Section 29D(3) of the ' Gujarat Talukdar's' Act in particular. But though this is so the provisions of the Court of Wards Act show to my mind with unmistakable clearness, that though the suit is against the Government Ward by name it is, except in form and name, a suit against the Manager of the Government Ward's property. This is manifest from Section 32 of the Court of Wards Act which provides that the Manager 'shall be named as the next friend or guardian for the suit.' Thereafter the suit necessarily proceeds in actual practice as if the Manager and not the Ward was the litigant. In pursuance of this purpose Section 31 of the Court of Wards Act requires a notice of two months before the suit is brought, just as in the case of suite against Government servants. In private suits no such notice is under the ordinary law required. Then Section 35 contemplates suits by the Manager on behalf of the Ward, a further confirmation of the proposition that the purpose of the Act is to treat the Manager not the Ward as the real litigant.
4. Is the policy of the Gujarat Talukdar's' Act similar? If it is, then it is to my mind quite clear that Section 29G of the Gujarat Talukdars' Act must be read as making Sections 31 and 32 of the Court of Wards Act applicable to suits against Talukdars in cases such as the present. The reasons for this proposition need no further amplification as it is I think accepted by both Shah and Crump JJ.
5. But if the policy of the Gujarat Talukdars' Act is different; if that Act contemplates the Talukdar himself as the real litigant; in other words if it regards a suit like the present as in substance and in reality a suit against the Talukdar personally; then to apply Sections 31 and 32 of the Court of Wards Act would be to go clean against the policy of the Gujarat Talukdars' Act.
6. The judgments which have led to the reference of this appeal to me, show that the matter can be effectively argued both ways. I have therefore to find some considerations which to my mind conclusively point to one solution as correct rather than the other.
7. I find two such considerations, one purely general, the other peculiar to the circumstances of the two Acts under discussion; and fortunately both point the same way.
8. The general consideration is this: The application of limitations such as are imposed by Sections 31 and 32 of the Court of Wards Act could be secured for suits against Talukdars by two methods. First, by enacting in the Gujarat Talukdars' Act provisions similar to Sections 31 and 32 of the Court of Wards Act. This method has not been adopted. Or Second : by incorporating the provisions by reference; as it is said is done by Section 29 of the Gujarat Talukdars' Act, As to this I feel bound to say that if it is the method adopted by the Legislature, it is an unwise, a clumsy and a most contusing method. The provisions contained in Sections 31 and 32 of the Court of Wards Act are special and peculiar. If it is intended to apply them to any particular class of suits that intention ought to be expressed with unmistakable clarity. Unless the contrary is made manifest the ordinary law as to filing suits must apply to suits against private persons. A suit against a Talukdar is a suit against a private person, I do not see how any one can say that it is made manifest that Sections 31 and 32 of the Court of Wards Act apply to such a suit. It is quite reasonable to infer, in spite of the difficulties, that the Legislature intended Sections 31 and 32 to apply and this Crump J. has done; and he may be right, for the intention of the Legislature is sometimes an uncertain thing. But no one can, I think, say that the intention of the Legislature in this matter is made manifest with unmistakable clearness. Yet it would have been very easy to make it clear. On general grounds, therefore, I infer that the usual law applies and not Sections 31 and 32.
9. The particular reason which appeals to my mind is this, In the case of Talukdars there is not, as in the case of Government Wards, the same need for such provisions as Sections 31 and 32 of the Court of Wards Act contain: for the severance of the Talukdar from his estate is less complete, the management is of a more restricted kind. Consequently there is loss need to treat a suit against the Talukdar as if it really wore a suit against the Manager. What I have said is apparent from the following facts : a Manager under the Court of Wards has power to sell, exchange, mortgage, charge or let the property (Section 26, Court of Wards Act.) A Manager under the Gujarat Talukdars' Act has substantially only the power of letting, leasing and gutting in the profits (Gujarat Talukdars' Act, Section 29(1) and Section 30(2)(c)).
10. The Manager under the Gujarat Talukdars' Act is to divide the surplus receipts amongst the Talukdars (Section 29)(3)); the Manager under the Court of Wards Act disposes of the entire profits in a manner similar to that of a guardian (Sections 23 to 27 of the Court of Wards Act). Lastly the Manager under the Court of Wards Act is appointed for more than a temporary purpose and usually retains his position as Manager so long as the economic condition of the estate requires it. A Manager under the Gujarat Talukdars' Act on the other hand is often appointed for a much more temporary purpose; as, for example, to avoid danger to the public peace (Section 26): or pending the partition of a Talukdari Estate (Section 27). It is true that at the request of the Talukdar a management may come into existence similar to that under the Court of Wards Act (Section 28) and the management in this case is of that kind. But under the Gujarat Talukdars Act this is only one of several descriptions of management under the Court of Wards Act, it is the sole description.
11. As I have indicated already where the Legislature have made their intentions so obscure, a Judge is, I think, bound to infer that there is no departure from the ordinary law intended, unless expediency or some other consideration compels us to infer that it was intended. I do not think that expediency or anything else, compels one. to infer that Sections 31 and 32 of the Court of Wards Act arc applicable to' suits against a Talukdar. Even when his estate is under management, a suit Filed in the ordinary way can proceed without any serious fear that justice will not be done.
12. Whether for other reasons altogether the Manager in person or in virtue of his office is a proper or a necessary party to such a suit as the present, is a different matter altogether, a matter which has not been discussed and as to which I say nothing.
13. I therefore hold that the suit in this case is not barred and that the decision of the lower Court is wrong.
14. The result is that the case is now referred back to the Bench before which it was argued who will presumably dispose of the appeal, and make a final order.