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Murlidhar Narayan and ors. Vs. Dattajirao Gangaram and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 106 of 1948
Judge
Reported inAIR1952Bom170; (1951)53BOMLR877; ILR1952Bom123
ActsBombay Court of Wards Act, 1905 - Sections 9, 13, 13(1), 13(2), 14, 14(1), 14(2), 14(3), 15(1), 16, 16(2), 16(3), 17, 18, 20, 21, 23, 26, 27, 31 and 46; Limitation Act, 1877 - Sections 7, 13, 18(1) and 18(2); Bombay Court of Wards Rules, 1908 - Rule 10
AppellantMurlidhar Narayan and ors.
RespondentDattajirao Gangaram and ors.
Appellant AdvocateV.D. Tulzapurkar, Adv.
Respondent AdvocateD.V. Patel and ;P.S. Joshi, Advs.
Excerpt:
bombay court of wards act (bom. 1 of 1905), section 14(1) - claims against government ward or his property--whether such claims relate to immoveable property.; the claims contemplated by section 14(1) of the bombay court of wards act, 1905, against a government ward or his property mean claims both relating to money as well as immoveable property. - - 79 and 86. the reply recites that the notice dated 16th october 1933, was duly received and that it appeared that saraswatibai bad obtained a certificate no. (2) where the court of wards is satisfied that any claimant was unable to comply with the notice published under sub-section (1), it may allow his claim to be submitted at any time after the date of the expiry of the period fixed therein; in this connection it is to be noted that the..........the aona of dr. shinde who are defendants 1 to 3 and defendant 4 an alienee from the court of warda, claiming possession of the property. the basis of the plaintiffs' claim waa that the alienation made by saraswatibai on 19th june 1920 was not supported by legal necessity and that the alienation was not binding upon the plaintiffs. they, therefore, claimed possession of the property with manse profits and costs[5] defendants 1 to 8 resisted the plaintiffs' suit, contending that the alienation was supported by legal necessity and that the plaintiffs' claim was barred both under section 14 and section 31, court wards act. they pleaded, in the alternative, that they had effected improvements and said that they were entitled to the amount of the improvements effected by them. defendant.....
Judgment:

Dixit, J.

[1] This second appeal raises a question under S 14, Bombay Court of Wards Act, 1905, and the facts giving rise to the suit out of which the appeal arises are briefly these.

[2] The property in auit in a house No. 30, situate in Khadki Juna Bazar in the Poona District. This property belonged to one Mabarudra Balwant Pandav. He died in 1900 leaving him surviving two sons, Ramkrishna and Gopal. Gopal died in 1902 leaving him surviving hia elder brother Ramkrishna and a widow by name Saraswatibai. Ramknahna himself died in 1908 leaving him surviving a, widow by name Laxmi-bai and a son by name Laxman, Laxmibai and Laxman died in the year 1913 but on the same day, Laxman having survived his mother. After the death of Laxman the property in suit was inherited by Saraawatibai, the widow of Gopal,

[3] On 19th June 1920, Saraawatibai sold the Suit property to one Dr. Gangaram Hariba Shinde for Rs. 1225. Dr. Shinds was the father of defendants 1 to 3. During the lifetime of Dr. Shinde, the Court of Wards assumed management of his property in October of 1932. It appears that on 37th October 1932, a notification was published in the Gazette inviting claims relating to his property. On 95th December 1933, Dr. Shinde died and a fresh notification dated 20th March 1933, was issued inviting those claims. This a notification was publiahed in the Bombay Government Gazette on 23rd March 1933, and it was also published in an issue of 'Dnyana Prakash' on 2nd April 1933. In accordance with the aforesaid notification the present plaintiffs, who are the maternal uncles of Laxman notified their claim to the Manager, Court of Wards, on 16th October 1933. In that notice the plaintiffs stated that the alienation made by Saraswatibai was unauthorised and that, as the hairs of Laxman they were entitled to the property in suit. To this notice a reply was given by the Manager, Court of Wards, on 20th November 1933, the notice and the reply being respectively Exs. 79 and 86. The reply recites that the notice dated 16th October 1933, was duly received and that it appeared that Saraswatibai bad obtained a certificate No. 273 of 1914, from the District Court which should be forwarded and upon receipt of the same the notice will be considered. The plaintiffs apparently did not move in the matter, and in the meanwhile the Court of Wards sold the suit property to defendant 2 on 6th April 1942, for a sum of RS. 2300.

[4] On llth June 1943, the plaintiffs filed the present suit against the aona of Dr. Shinde who are defendants 1 to 3 and defendant 4 an alienee from the Court of Warda, claiming possession of the property. The basis of the plaintiffs' claim waa that the alienation made by Saraswatibai on 19th June 1920 was not supported by legal necessity and that the alienation was not binding upon the plaintiffs. They, therefore, claimed possession of the property with manse profits and costs

[5] Defendants 1 to 8 resisted the plaintiffs' suit, contending that the alienation was supported by legal necessity and that the plaintiffs' claim was barred both under Section 14 and Section 31, Court Wards Act. They pleaded, in the alternative, that they had effected improvements and said that they were entitled to the amount of the improvements effected by them. Defendant 4 also resisted the plaintiffs' suit, and his contentious were similar to those of the other defendants.

[6] The trial Court dismissed the plaintiffs' suit, holding that the suit was barred under Section 14(3). Court of Wards Act, that the plaintiffs had proved that they were the heirs of Laxman, that the defendants did not prove that the alienation was for legal necessity. The trial Court also held that the suit was not barred under Section 31, nor was it barred by limitation, and that defendants 1 to 3 had effected certain improvements casting RS. 600 From the decree made in the suit, the plaintiffs appealed in the District Court, Poona, and the learned Judge of the Small Cause Court, Poona, with appellate powers, remanded the proceedings on 9th July 1943, and upon receipt of the finding Upon an issue sent by him he heard the appeal and eventually dismissed it on 30th August 1947, and confirmed the trial Court's decree. He held that the suit was barred under 3. 14 (3), Court of Wards Act, that the notice Rs. 79 and the reply Ex. 86 did not amount to waiver within 3. 14 (a), Court of Wards Act, and that the improvements made by defendants 1 to 3 were in respect of the sum of Rs. 600. From the appellate decree the plaintiffs a have come up in second appeal.

[7] The principal point taken on behalf of the plaintiffs is that S. 14(1) of the Bombay Court of Wards act, 1905, applies to money claims only and can have no application to claims relating to immoveable property. It is not clear from the record as to the circumstances in which the Court of Wards was moved to take up the superintendence of the property of Dr. Shinde. But it appears from the evidence of the Manager who has been examined at Ex.. 109 that the property was under the management of the Court of Warda for about 10 years. The property was taken up under the management of the Court of Wards originally during the lifetime of Dr. Shinde, and whether Dr. Shinde himself applied in writing to Government to have the property placed under the superintendence of the Court of Wards or whether the Court of Wards themselves assumed superintendence is not apparent from the record. However, a notification was published in October of 1932 and the material notification with which we are concerned in this appeal is dated 20th March 1933, which was published on 23rd March 1933, is the Bombay Government Gazette and which was also published in an issue of the ' Dnyana Prakash' dated 2nd April 1933. The question raised in this appeal involves the consideration of certain sections of the Act. According to Section 9 assumption of superintendence by the Court of Wards is made when it is expedient in the public interest to preserve the property of a landholder or a pensionholder for the benefit of family, and when the property is of such value that an economical management of the Court of Wards is practicable. Therefore, the considerations which are decisive of the question are that it is expedient in the public interest to preserve the property for the benefit of his family and when the property is of such value that an economical management of the Court of Wards is practicable. Then reference is to be made to Section 13 which requires the assumption of the superintendence of the property of a landholder or a pensionholder to be notified in the official Gazette. According to Section 13(2), the whole of the property, moveable and immoveable, of a landholder or a pensionholder is then to be deemed to be under the superintendence of the Court of Wards. Section 14 which follows Section 13 is the section on which the main argument is based, and it may, for the sake of convenience, be reproduced in this place. It runs as follows :

'(1) On the issue of a notification under Section 13 Sub-section (I), the Court of Warda shall publish in the Official Gazette and in such other manner as the Provincial Government may by general or special order, direct a notice, in English and also in the vernacular, calling upon all persons having claims against the Government ward or his property to submit tbe same in writing to it within six months from the date of the publication at the notice.

(2) Where the Court of Wards is satisfied that any claimant was unable to comply with the notice published under Sub-section (1), it may allow his claim to be submitted at any time after the date of the expiry of the period fixed therein; but any such claim shall notwithstanding any law, contract decree or award to the contrary cease to carry interest from the data of the expiry of such period until submission.

(3) EVERY claim against the Government ward or bid property (other than a claim on the part of the Crown) not submitted to the Court of Wards in compliance with the notice published under Sub Section (1), or allowed to be submitted under Sub-section (2) shall, save in the cases provided for by Section 18 Sub section (2), Clause (c), and by Sections 7 and 13, Limitation Act. 1877. be deemed for all purposes and on all occasions, whether during the continuance of the superintendence or afterwards, to have been duly dis-charged unless, in any suit or proceeding instituted by the claimant, or by any person claiming under him, in respect of any such claim, it is prompt to the satisfaction of the Court that he was unable to comply with the notice published under Sub-section (1).'

Mr. Talzaparkar's contention is that the expression 'having claims against the Government ward or his property' has a reference to money claims only, and he has endeavoured to support his argument by reference to certain other sections of the Act. He refers, for example, to Section 14 (2) where the sub-section speaks of a claim-ceasing to carry interest under certain circumstances, He next refers to S. 15 (l) in which the words used inter alia are ''all documents (including entries in books of account)', and he suggests that this is in reference to a money claim only. He then referred us to Section 16 (2) where the sub-section refers to a reduction of a claim and also refers to the rate of interest. He bas also drawn our attention to the proviso to Section 16 where the proviso refers to the recovery of a sum of money.

He next referred us to Section 18 (l) which speaks of a schedule of debts and liabilities of the Government ward. He also referred to Section 18 (2), Clause (c), which refers to the claims referred to in Section 14, Sub-section (3). His argument is that from a reading of these sections with particular reference to the expressions used in those sections, it is clear that Section 14 (l) must be taken to be intended to apply to a money claim. At first sight, the argument seems to be attractive. But it seems to me that it is not possible to accept this interpretation of Section 14 (l). Upon the assumption of the superintendence by the Court of Wards of a landholder's property, the whole of his property, moveable and immove-able, goes under the superintendence of the Court of Wards. This means that the whole of tho pro-perty of a Government ward is under the manage. ment of the Court of Wards. The expression 'persons having claims against the Government ward or his property' is a wide expression, and to accept the argument urged in support of the appeal would mean that in regard to the immove-able property of a Government ward it would not be necessary for a claimant to submit claims against such property. It seems to me that this interpretation of Section 14 (1) is a narrow interpretation, and whan the words are capable' of a wider interpretation, it seems to me that it is not right to put a restricted interpretation upon the words occurring in Section 14 (l). It seems to me that it would be more reasonable to interpret S. 14 (l) as one which embraces the claims not merely relating to money but also those relating to immove-uble property. Mr. Tulzapurkar, in order to succeed in his contention, has to show that in regard to claims relating to immoveable property, there ia some other provision in the Act according to whioh claima against immoveablo property can be invited, and there ia no such provision in the Act and I cannot conceive that the Legislature intended Section 14 to be restricted to money claims only and did not intsnd that Section 14 should apply not merely to money claims, but also to claims relating to immoveable property. It is to be remembered that the whole of the property of a Government ward, whether moveable or immove-able, goes under the superintendence of the Court of Wards, and it is in reference to such property that is, rnoveable and immoveable, that Section 14 (l) contemplates calling upon persons having claims against the Government ward or his property to submit those claims in writing.

[8] Mr D. V. Patel appearing for defendants l to 3 contended that the language employed in Section 14 (l) is general, and where the language used is general, then it would not be right to out down the meaning of the wards used, unless such a con-struction is justified by the provisions of the Act. In this connection it is to be noted that the Court of Wards assumes management of the property of a Government ward because Government consider that the property can be better managed in the interest of the landholder himself, and a reference to Section 9 shows that the property has to be managed for the benefit of the family of a landholder and that the management has got to be economical and the management must be practicable. From this point of view the Court of Wards has to make up its mind and it could not be the intention of the Act to place the Court of Wards in management of the property whore it is not in the interests of the landholder himself to place the proptrty in tb'e management of the Court of Wards, because by taking up the management of the property, the Court of Wards is taking up a liability. Now, Section 18 (l) shows chat an investigation of the claims preferred against the Government ward or his property has to be forwarded to Government by a report and a schedule of the debts and liabilities of the Government ward has to bo prepared. It is then that tho Court of Wards is in a position to know as to whether the Court of Wards would be in a position to efficiently and satisfactorily manage the property of a Government ward, and if Section 14 (l) ia interpreted in the sense suggested by Mr. Tulzapurkir, it would moan that the Court of Wards will be concerned only with considering the claims of claimants in relation to money claims only and not in relation to immoveablo property. It seems to me that this is not the correct reading of the section, because a reference to other sections of the Act will show that the other construction which I have already pointed out is the right construction. For example, a reference may be made to Section 27. Undor Section 27 of the Act, the Court of Wards has got power to sell, exchange, mortgage, charge or lay out the property of a Government ward, and in the management of the property the Court of Wards should have such a power. Now, if at tho initial stage the Court of Wards is not in a position to ascertain the nature cf the property, superintendence of whioh has been taken up by the Court of Wards, it will not be possible for tbe Court of Wards to make up its mind as to whether a certain property should be sold or not. To take the present case, in this case the Court of Wards called upon claimants to submit claims. Tho plaintiffs by a notice preferred a claim. The Court of Wards sent a reply to the notice given by the plaintiffs. The Court of Wards required the plaintiffs to send them a certificate No. 278 of 1914 referred to in the reply. The plaintiffs did not attempt to send a certificate, and in the year 1942 the Court of Wards, presumably thinking that there was no claim against the property, sold the property to defendant 4. It seems to me therefore that having regard to the provisions contained in Section 27, it would be necessary for the Court of Wards to ascertain the nature of the property, the superintendence of which has been taken up, and unless the claims, both relating to money as well as immoveable property, are submitted by the claimants, the Court of Wards would not be in a position to ascertain the nature and the extent of the property of a Government ward. In this connection reference may also be made to Section 17. Section 17 of the Act refers to execution of decrees which are to be stayed till a certificate is filed. This certificate is a certificate stating that the decree holder has duly submitted the decree-claim. This means that the Court of Wards is anxious to know as to whether or not in relation to the property of the Government ward a claim has been duly submitted by the claimant before the Court of Wards. Then again a reference may be made to Section 16(3). That sub-section shows that subject to the provisions contained in Sub-section (2), nothing in the section should bar the institution of a suit in a civil Court for the recovery of a claim against the Government ward and his property which has been duly submitted to the Court of Wards. That again means that although a claim has been submitted by a claimant, that does not prevent the claimant from filing a suit subject to the provisions contained in Sub-section (2). Mr. Tulzaparkar for the plaintiffs argued, and I think with some justification, that if this construction were adopted, the result would be that a claimant may even ho compelled to submit claims to the Court of Warda as for example, claims relating to an easement or claims relating to pre-emption. If these claims are claims against the property of a Government ward, then in that event those claims have got to be Submitted, and even if these claims are submitted, that only means that the various claimants have asserted their claims when they are called upon to do so, and in such cases, I apprehend there cannot be any hardship. It seems to me therefore that to place a restricted construction upon Section 14 (1) would be on the one hand to do violence to the language of the section, and if the construction, contended for by Mr. Tulzapurkar were to be adopted, it seems to mo that the Court of Wards would find itself in some difficulty in properly managing the property of the Government ward himself. For these reasons I think the construction contended for on behalf of the appellants cannot be accepted, and we think that the claims contemplated by Section 14 (l) against a Government ward or his property must mean claims both relating to money as well as immoveable property. In my opinion, this contention must bo rejected.

[9] But then Mr. Tulzapurbar contended that, in any case there was a waiver on the part of the Court of Wards, and this contention is sought to be supported by a reference to the contents of the notice Ex. 79 and the reply Ex 86. In this connection the provisions of Section 14 (2) have to be noted. Under Section 14 (2), the Court of Wards may allow a claim to be submitted at any time after the date of the expiry of the period fixed in the notification That is therefore a matter in the discretion of the Court of Wards. In this cage the plaintiffs notified their claim by the notice dated 16.10.1933.

This was admittedly six months after the notification which was published on 23-3-1933. Mr. Tulzapurkar strongly relies upon the contents of the reply Ex. 86. That reply has been signed by a Manager, Court of Wards, Poona, In the concluding part of the reply, it is stated that the notice will be considered upon the receipt of the certificate NO. 273 of 1914. The reply is dated 20-11 1933. Mr. Tulnapurkar relied upon an endorsement which appears at the end of the notice Ex. 79. The endorsement is in pencil. A reference to the endorsement shows that after the notice was received by the office of the Court of Warda, it was noted that the period of six months had already expired. It is not proved in this case as to who wrote out the endorsement and, in any case, in the reply the Manager stated that upon receipt of the certificate, the notice will be considered. It cannot, I think, be suggested that by the notice the Court of Wards expressly intended to condone the delay which had admittedly taken place in the case, At the same time, reasonably construed, the reply meant only this that if the certificate was forwarded to the office of the Court of Wards, the Court of Wards may look up into the matter. We think that to place another construction open the contents of this replay would be doing violence to the language used in the reply. This is apart from the question whether the Manager who sent the reply had power to send it. It is to be noted that the property was placed under the management of a Manager, and in this connection, certain sections were referred to. Section 20 of the Act refers to the appointment of a Manager of the property of a Govern-ment ward. Section 21 refers to the liability of a Manager. Section 23 refers to tbe general powers of the Court of Warda, and the Court of Warda has to do all things requisite to the proper care and management of the property of which it assumes the superintendence, and this is can do through the Manager. The expression 'through' suggests that the Manager is not placed on the same footing as the Court of Wards itself. But then Mr. Tolzapurkar relied upon Section 26. Under Section 25, the Court of Wards or the manager appointed by it has to manage the property of every Government ward under its superintendence or under his management diligently and faithfully for the benefit of the Government ward. Mr. Tulzapurkar contended that the powers of the Manager must be taken to be identical with those of the Court of Wards, The use of the word 'or' in Section 26 suggests that the powers of a Court of Wards and those of the Manager are identical. At the same time, the section has to be read as being intended to apply to what is stated in the section itself. That is, the property is to be managed dilicently and faithfully for the benefit of the Government ward. Mr. Tulzanurkar contended that the Manager must he taken to be a person authorised to send this reply. Now, it is to be remembered that under Section 46, Court of Wards Act, power is given to frame rules, and rules have been framed under Section 46 and they are called the Bombay Court of Wards Rules, 1908. Rule 10 of the Rules contemplates delegation of powers to managers. This delegation has got to be notified by notices posted at the places mentioned in Rule 10. It is not clear from the present record whether the Manager had or had not the power to consider the claims preferred by the claimants, because, according to Section 14, it is the Court of Wards which has to be satisfied about the claims. However, it is not necessary to decide this question, because, in our opinion, the language of the reply EX. 66 cannot justify the construction that the Court of Wards intended to consider the claim of the plaintiffs after the expiry of the period contemplated by Section 14. In our opinion, therefore, the lower Court was right in holding that when the notice Ex. 79 and the reply Ex. 86 are read together, they do not justify the construction that the Court of Wards intended to consider the claim of the plaintiffs after the expiry of the period of limitation.

[10] The last point taken on behalf of the plaintiffs is that in any case the civil Court a had power to condone the delay. A reference to Section 11(3) shows that the civil Court has got such a power. But Sub-section (3) of Section 14 requires that the Court must be satisfied that the claimant was unable to comply with the notice published under Sub-section (l). In the present case, nothing was suggested by the plaintiffs in the notice Ex. 79 as to why they were unable to comply with the notice. But Mr. Tulsapurkar contended that the plaintiffs were unable to comply with the notice because they came to know of the notification sometime after the date of the notification. It seems to me that that is not contemplated by the language employed in Section 14 (3), Rather, the language suggests that for some unavoidable reason it was not possible for a claimant to comply with a notice. No such ground has been mentioned in the notice and it seems to its that the plaintiffs can-not, therefore, successfully rely upon the concluding part of the provisions contained in Section 14, Sub-section (3). This point also must, in our opinion, fail.

[11] Mr. Tulzapurkar, however, urged, relying upon Section 14 (3), that there is a saving in the case of the withdrawal of superintendence contemplated by Section 18. He said that there was a Government resolution dated 2-9-1946, as a result of which the superintendence was withdrawn on 1.11-1946. It was contended that under those circumstances the provisions of Section 14 (3) will not apply. But the difficulty in the way of accepting this argument is that we are not in a position to know the terms of the resolution It is not possible to acapde to this argument in the absence of adequate material to upon the point. This contention must also, therefore, fail and will be rejected.

[12] As all the contentions urged in support of the appeal fail, the decree of the lower appellate Court will have to be confirmed.

[13] The result is that the appeal fails and the same will be dismissed with costs.

[14] Appeal dismissed.


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