1. The question referred to this full bench is:
Whether the rulings in Hari Govind v. Narsinhrao Konherrao I.L.R.(1913) 38 Bom. 19416 Bom. L.R. 30 and Bandoo Krishna v. Narsingrao 16 Bom. L.R. 527 are no longer good law in view of the observations of the Privy Council in Braja Sunder Deb v. Rajendra Narayan Bhanj Deo 40 Bom. L.R. 700 and whether Section 82 of the Bombay Court of Wards Act is applicable to suits brought against a Government ward before the superintendence of his property was assumed by the Court of Wards.
The question is really one, and the statement of it in the reference represents two aspects of it. Section 32 of the Bombay Court of Wards Act, 1905, is in the following terms:-
Subject to the provisions of the second paragraph of Section 440 of the Code of Civil Procedure [O. XXXII, Rule I], in every suit brought by or against a Government ward, the manager of the Government ward's property, or, where there is no manager, the Court of Wards having the superintendence of the Government ward's property, shall be named as the next friend or guardian for the suit, as the case may be.
Taking the section by itself it seems to me that either a narrow or a broad construction is possible, the narrow construction being that it relates only to suits filed after the ward has been made a Government ward and superintendence of his property has been assumed, and the broader construction being that it applies to every suit whether filed before or after the superintendence of the ward's property has been assumed under the Act. In these circumstances it is desirable to examine the material scheme of the Act, and to consider which construction, the broad or the narrow, is more in consonance with that scheme.
2. Superintendence of the property of a land-holder holding land, or of a pension-holder receiving a pension, may be assumed by the Court of Wards under Sections 4 and 9 of the Act. Section 4 relates to land-holders and pension-holders disqualified to manage their own property, and Section 5 sets out what land-holders and pension-holders, for the purposes of Section 4, are deemed to be disqualified to manage their own property. Section 9 permits the Court of Wards to assume the superintendence of the property of land-holders or pension-holders, who have applied in writing to the Provincial Government to have their property placed under the superintendence of the Court of Wards, and the Provincial Government is of opinion that it is expedient in the public interests to preserve the property of the land-holder or pension-holder for the benefit of his family. The effect of the Court of Wards assuming superintendence of the property of a land-holder or pension-holder is given in Sub-section (2) of Section 13, which provides that the whole of the property, moveable and immovable, of such land-holder or pension-holder shall be deemed to be under the superintendence of the Court of Wards. Section 14 and the following sections deal with disposal by the Court of Wards of claims against the ward. Section 14 provides that claims must be made to the Court of Wards within a certain time. Section 15 provides, inter alia, that a certified copy of the decree, or, when a suit is pending, a copy of the plaint shall be sufficient (Statement of the claim to the Court of Wards. Section 16 provides for investigation of claims by the Court of Wards, and Sub-section (2) of that section provides that, when the Court of Wards has admitted any claim, it may make proposals to the claimant for reduction of the claim or of interest, and Sub-section (3) of that section provides that, subject to the provisions of Sub-section (2), nothing in the section shall be construed to bar the institution of a suit in a civil Court for the recovery of claim against a Government ward or his property which has been duly submitted to the Court of Wards. Those sections seem to provide that all claims must be made to the Court of Wards. The Court of Wards then has an opportunity of admitting them, and also of negotiation, but, if the claims are not admitted or compromised, the claimant's right to seek his remedy by a suit is unaffected. Section 17 provides, inter alia, that on the publication of a notice under Section 14 directing claims to be submitted, no proceeding in execution of any decree against the Government ward or his property shall be instituted or continued until the decree-holder files a certificate from the Court of Wards that the decree-claim had been duly submitted. Section 18 provides for a report to Government after the investigation of all claims by the Court of Wards, and for orders withdrawing the superintendence of the Court of Wards in certain circumstances. The next section necessary to be noticed is Section 31, which provides that no suit relating to the person or property of any Government wards shall be brought in any civil Court until the expiration of two months after notice in writing having certain particulars, including the relief claimed, to the Court of Wards. Section 34 is material, and reads as follows:-
Every process which may be issued out of any Civil or Revenue Court against any Government ward shall be served on the Government ward's next friend or guardian for the suit.
Lastly Section 37 is important, and the first sub-section of it is as follows.--
(1) Except with the approval of the Court of Wards, a Government ward shall be incompetent to transfer or create any charge on, or interest in, his property or any part thereof (except such interest as may be created by a will made in accordance with Section 38), or to enter into any contract which may involve him in pecuniary liability; and no suit shall be brought in any Civil Court whereby to charge any person upon any promise made after he has ceased to be a Government ward to pay any debt contracted during the period when he was a Government ward, or upon any ratification made after he has ceased to be a Government ward of any promise or contract made during the period aforesaid, whether there is or is not any new consideration for such promise or ratification.
3. There can be no doubt that Section 32 of the Court of Wards Act applies to suits instituted after the Court of Wards has assumed superintendence of the property of a ward, and it would be strange if, when the Court of Wards must be named as the next friend or guardian of the ward in a suit filed after the order by which superintendence is taken, yet it is not necessary for the Court of Wards to be named as the next friend or guardian if the suit chances to have been filed a day or two before the formal order by which superintendence is assumed. By reason of Section 37 of the Act, a Government ward is incompetent to enter into any contract which may involve him in pecuniary liability, and it is very difficult to understand how a Government ward under this disability ordinarily will be in a position to continue a suit filed either by him or against him before the order by which superintendence of his property was assumed. Also the filing of an appeal by him or his representation in an appeal filed by his opponent usually will be matters requiring contracts by him involving him in pecuniary liability. Again, by reason of Section 34, every process issued against any Government ward is to be served on the Government ward's next friend or guardian for the suit, and this would seem to apply to every suit whether filed after the ward has become a Government ward, or filed before and continuing after that event. On these general considerations, therefore, apart from authority, it would seem that the scheme of the Act suggests a broad, rather than a narrow, construction of Section 32, and that the requirements of that section should be held to apply irrespective of whether the suit is brought before or after the assumption of superintendence by the Court of Wards.
4. In a decision of this Court given more than thirty years ago, Hari Govind v. Narsinhrao Konherrao 16 Bom. L.R. 30 followed in the later case mentioned in the referring judgment, it was held, however, that Section 32 of the Court of Wards Act is not intended to apply to pending suits. The learned Judges, when coming to that conclusion, restricted their consideration of the scheme of the Act to the section immediately preceding Section 32. It is true that in Section 31 also there appear the words 'shall be brought,' and no doubt it may be said that the provisions for notice in that section are not very appropriate to suits already pending. But, in my opinion, the argument based upon Section 31 is not really very substantial when compared with the argument based upon the other sections of the Act to which I have referred. It is true that this decision has stood for a long time, but I think its correctness must be taken to have been affected by the Privy Council decision in Braja Sunder Deb v. Rajendra Narayan Bhanj Deo 40 Bom. L.R. 700. This was a ease under the Bengal Court of Wards Act, Section 51, which reads as follows :-
51. In every suit brought by or against any ward he shall be therein described as a ward of Court; and the manager of such ward's property, or, if there is no manager, the Collector of the district in Which the greater part of such property is situated, or any other Collector whom the Court of Wards may appoint in that behalf, shall be named as next friend or guardian for the suit, and shall in such suit represent such ward; and no other person shall be ordered to sue or be sued as nest friend or be named as guardian for the suit by any Civil Court in which such suit may be pending.
The question before the Privy Council was the validity of the compromise in a suit filed before the Court of. Wards, to use the expression used in the Bengal Act, 'took charge of' the estate of the ward. The Court of Wards was not named as the next friend or guardian of the ward for the suit, but was on the record as a separate party. The Court of Wards had given its consent to the compromise, and their Lordships held that, because the Court of Wards was made an additional defendant, and not made a guardian ad litem of the appellant before them, this could not affect the validity of the compromise, which depends entirely upon Whether the Court of Ward' had consented to it on the appellant's behalf. Their Lordships went on to say (p. 65) :
Whether a suit be brought before or after the Court of Wards has assumed charge of the property of a disqualified proprietor, the Court of Wards' manager or the Collector should be made guardian, and must represent the ward in the suit. It is impossible to suppose that the ultimate constitution of the suit is to be different according to the date of institution. If an amendment is required owing to the Court of Wards taking charge pending suit, the amendment must produce; the result set forth in Section 51 of the Act.
It has been argued by Mr. Joshi for the opponent that the Bengal Court of Wards Act is not identical in terms with the Bombay Court of Wards Act. This is true, but the scheme of the two Acts appears to be the same. Under the Bengal Act, just as under the Bombay Act, the property of a ward does not vest in the Court of Wards. In Bombay the Court of Wards assumes superintendence, and in Bengal the Court of Wards takes charge, of the property of the1 ward. In Section 51 of the Bengal Act we have the same words '' suit brought by or against a ward' which appear in Section 32 of the Bombay Act, and it seems to me impossible to hold that the observations of the Privy Council in Braja Sunder Dab v. Rajendra Narayan Bhanj Deo must not apply equally to Section 32 of the Bombay Act, In my opinion, therefore, the question is concluded by the observations made in Braja Sunder Deb v. Rajendra Narayan Bhanj Deo, and the question referred to us must therefore be answered in the affirmative. I would answer it therefore by saying that Section 32 of the Bombay Court of Wards Act is applicable to pending suits brought against a Government ward before the superintendence of his property was assumed by the Court of Wards, and that the rulings of this Court in Hari Govind v. Narsinhrao Konherrao, and in subsequent cases are no longer good law, in view of the observations of the Privy Council in Braja Sunder Deb v. Rajendra Narayan Bhanj Deo.
5. I agree.
6. I agree.