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Parshram Shivajiram Vs. Gulabsing Fattesing - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtMumbai
Decided On
Case Number First Appeal No. 278 of 1931
Judge
Reported inAIR1937Bom113; (1936)38BOMLR1306
AppellantParshram Shivajiram
RespondentGulabsing Fattesing
DispositionAppeal dismissed
Excerpt:
court of wards act (bom. i of 1905), section 31 - government ward holding property of deceased promissor-suit instituted by promisee against ward as legal representative, without notice-whether suit relates to property of government ward-construction.;the words ' suit relating to the person or property of any government ward,' in section 31 of the court of wards act, 1905, are wide enough to cover the case where the liability which is sought to be enforced against the property of a government ward was incurred before the property was acquired by the latter. such a suit, therefore, cannot be instituted in absence of a notice required by the section. - - in my opinion he was perfectly right. the estate of the deceased person is subject to certain liabilities which must be first..........act i of 1905). we have to decide whether the suit relates to the property of any government ward. the suit is based on a promissory-note executed on september 24, 1927, by the father of the defendant. on january 30, 1930, after the death of the father, the court of wards assumed superintendence of the property of the defendant, who thus became a government ward. it is argued for the plaintiff that this suit does not relate to the property of the defendant, but that it relates to a liability of his deceased father and that only that part (if any) of the property of the deceased which may be left after satisfying the liabilities of his deceased father can become the property of the defendant.7. such an argument can of course only be taken when the property devolves .upon an heir;.....
Judgment:

Broomfield, J.

1. This appeal arises out of a suit on a promissory-note executed on September 24, 1927, by one Fattesing Gumansing, the Chieftain of Gangtha, who died in 1929. His estate passed to his son Gulabsing and was taken over by the Court of Wards under a notification of January 30, 1930. The suit was brought on September 24, 1930, and has been dismissed as barred by Section 31 of the Court of Wards Act (Bom. Act I of 1905). That section is as follows :-

No suit relating to the person or property of any Government ward shall be brought in any Civil Court until the expiration of two months after notice in writing stating the name and place of abode of the intending plaintiff, the cause of action and the relief claimed, has been delivered to, or left at the office of, the Court of Wards; and the plaint shall contain a statement that such notice has been so delivered or left.

2. There is a proviso which does not apply in the present case.

3. It is admitted that the notice required by this section was not delivered. The learned District Judge who tried the case held, therefore, that the suit was barred and must be dismissed. In my opinion he was perfectly right.

4. The argument which has been placed before us is that this is a suit to enforce a liability against the legal representative of a deceased promissor. A decree is sought against the estate of Fattesing Gumansing in the hands of the defendant, his son. That being so, it cannot be said to relate to the property of a Government ward within the meaning of Section 31. But, in my opinion, it does relate to the property of the ward. The words ' suit relating to the person or property ' in Section 31 are very wide, and I should say intentionally so. There is no more reason why a notice should be required in the case of a liability incurred by the ward himself than in the case of a liability incurred by his ancestor or predecessor. It must be only in very rare cases that a Government ward can incur a liability himself, and, on the other hand, the reason that estates have to be taken under management most commonly is that they have become impoverished by the ward's ancestors or predecessors. I think the words of the section are wide enough to cover the case where the liability which is sought to be enforced against the property was incurred before the property was acquired by the defendant. In my view, therefore, the appeal must be dismissed with costs.

Tyabji, J.

6. The question turns upon the construction of Section 31 of the Court of Wards Act (Bombay Act I of 1905). We have to decide whether the suit relates to the property of any Government ward. The suit is based on a promissory-note executed on September 24, 1927, by the father of the defendant. On January 30, 1930, after the death of the father, the Court of Wards assumed superintendence of the property of the defendant, who thus became a Government ward. It is argued for the plaintiff that this suit does not relate to the property of the defendant, but that it relates to a liability of his deceased father and that only that part (if any) of the property of the deceased which may be left after satisfying the liabilities of his deceased father can become the property of the defendant.

7. Such an argument can of course only be taken when the property devolves .upon an heir; which implies that the deceased's interest in the property was not joint nor liable to determine on his death and that there were no joint owners to take by survivorship the whole property in their own right. Speaking of an estate consisting of property that devolves by inheritance, it must, in my opinion, be conceded that the whole of such an estate of a deceased person does not necessarily become the property of the heir of the deceased. The estate of the deceased person is subject to certain liabilities which must be first satisfied, before the heir ran claim the residue as his own. The claims of the creditors of the deceased have priority over those of the heir. It is only after the claims of the creditors are satisfied that the property can become the property of the heir. When the creditor of a deceased person sues for payment of a debt due by the deceased and a decree is obtained in the suit, what is liable in execution of the decree (which is based on a liability of the deceased) is the property of the deceased and not the property of the heirs of the deceased. But this is not what has to be determined in considering whether Section 31 is applicable. That section does not depend on whether the property liable in execution must be deemed to be the property of the deceased or whether it is that net part of the estate of the deceased which has devolved on the heirs. What Section 31 refers to are suits that relate to the property of the ward. I will assume that the property is inheritable and not to be taken by the survivor of two joint owners. The present suit is one that will have the effect of either materially reducing the net estate which will-after payment of the debts of the deceased-ultimately become the property of the ward, or it will have the effect of protecting the gross estate of the deceased from an unfounded claim, so as to leave a larger net estate to be taken by the ward. It cannot be denied that such a suit vitally relates to the net estate-to that residue which is the property of the ward. Moreover the Court of Wards is intended to protect estates taken under its superintendence. In view of this purpose of the Act, the words ' the property of any Government ward ' are used in referring to the estate of which the Court of Wards has assumed superintendence including that part of the estate which may be subject to pre-existing liabilities, a part that may consequently never become the ' property of any Government ward ' in its strict sense. Superintendence having been assumed, there is no warrant for introducing a distinction between the two parts of the estate. The assumption of the superintendence has a retrogressive effect inasmuch as the superintendence is not restricted to the date of its assumption, but the Court of Wards must deal with liabilities created prior to the date of assumption of superintendence. In my opinion notice was necessary before the suit could have been brought, and, therefore, the suit was rightly dismissed.


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