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The Bombay Namdeo Co-operative Agency Ltd. Vs. Virdhaval - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtMumbai
Decided On
Case NumberFirst Appeal No. 279 of 1930
Judge
Reported in(1937)39BOMLR189
AppellantThe Bombay Namdeo Co-operative Agency Ltd.
RespondentVirdhaval
DispositionAppeal allowed
Excerpt:
bombay court of wards act (bom. i of 1905), sections 3, 4, 5, 10(1)(a) and 37-custody of disqualified land-holder's property-promissory-note passed by landholder after such custody-validity of promissory note-assumption of superintendence by court of wards-scheme of act-statute, construction of.;under the bombay court of wards act, 1905, taking temporary custody of the property of a disqualified land-holder under section 10(2)(a) is not the same thing as assuming superintendence of his property under section 4(i). the conditions necessary for the latter are (1) disqualification of the land-holder under section 5; (2) previous sanction of government; (3) the actual assumption by the court of wards or some declaration to that effect; (4) notification in the government gazette setting out.....s.s. rangnekar, ag. c.j.1. the appellants brought a suit to recover rs. 4,000 odd and interest thereon, on a promissory-note executed by one sardar dabhade in favour of one murlidhar on august 19, 1925, and assigned by the latter to them. the suit was brought against the sardar by his guardian ad litem the collector and court of wards, poona. the main defence to the suit was that the court of wards had assumed superintendence of the property of sardar dabhade on april 22, 1925, and that under section 37 of the court of wards act (bom. i of 1905) the sardar was incompetent to enter into any contract involving pecuniary liability. it was contended on behalf of the plaintiffs that the court of wards assumed superintendence on july 10, 1926, and not on april 22, 1925, and that therefore the.....
Judgment:

S.S. Rangnekar, Ag. C.J.

1. The appellants brought a suit to recover Rs. 4,000 odd and interest thereon, on a promissory-note executed by one Sardar Dabhade in favour of one Murlidhar on August 19, 1925, and assigned by the latter to them. The suit was brought against the Sardar by his guardian ad litem the Collector and Court of Wards, Poona. The main defence to the suit was that the Court of Wards had assumed superintendence of the property of Sardar Dabhade on April 22, 1925, and that under Section 37 of the Court of Wards Act (Bom. I of 1905) the Sardar was incompetent to enter into any contract involving pecuniary liability. It was contended on behalf of the plaintiffs that the Court of Wards assumed superintendence on July 10, 1926, and not on April 22, 1925, and that therefore the promissory-note, having been executed prior to the assumption of the superintendence of the property of the Sardar by the Court of Wards, was outside the prohibition of Section 37 of the Act. This contention was rejected by the learned First Class Subordinate Judge, who held, having regard to the documentary evidence tendered on behalf of the defendant, that the Court of Wards had assumed superintendence on April 22, 1925. The plaintiffs now appeal from that decision.

2. The material facts are as follows : On April 9, 1925, the District Judge of Poona on the application of the Collector of the district, passed an order under Section 10(1)(a) of the Act for the temporary custody and protection of the property of the Sardar, as he was heavily involved in debts and was therefore unable to manage his property. The actual order was : 'the Court of Wards may take into its possession the property of the said Sardar... and assume its superintendence until further orders.' As it would be seen hereafter, the order goes beyond the terms of Section 10(1)(a). On April 11, this order was communicated to the Collector, and on the 13th the Collector reported the same to the Commissioner, who under the Act is the Court of Wards. On April 22, the latter made the following order :-

In accordance with the authority granted by the District Judge, Poona, on April 9, 1925, the Court of Wards, Central Division, hereby assumes the temporary management of the property of Shrimant Yeshwantrao Khanderao Dabhade in the Mawal Taluka of the Poona District, and authorises the Collector of Poona to take steps for the temporary custody and protection of that property under Section 19(2) of the Bombay Court of Wards Act, 1 of 1905.

3. This order apparently was made under the terms of Section 19 of the Act which enables the Commissioner as the Court of Wards to delegate his powers to the Collector or any other competent subordinate officer. A copy of this order was sent to the Collector apparently on the same day, and on April 23, 1925, the Collector in his turn sent it to the Mamlatdar for taking action in accordance with the order. On April 22, 1925, the Commissioner reported the order made by the District Judge to Government. On August 24, 1925, the District Judge made another order certifying that the Sardar was a landholder unfitted to manage his own property by reason of his improvidence and extravagant habits. This order, it is clear, was made operative by the District Court under Section 5 of the Act. The order was reported to Agency, the Commissioner on August 31, 1925, by the Collector, and the Commissioner in his turn, communicated the same to Government and requested Government for their sanction to the assumption of the superintendence of the property of the Sardar by the Court of Wards. Accordingly on July 10, 1926, a resolution was passed by the Government according sanction to the assumption by the Court of Wards of the superintendence of the property of the Sardar, upon which the Court of Wards assumed superintendence of the property of the Sardar on July 16, 1926, and a notification to that effect was published in the Bombay Government Gazette, dated July 22, 1926, as required by the provisions of Section 13 of the Act. It is not clear from the record whether the Government Gazette, proving that the Court of Wards had assumed superintendence of the property of the Sardar, was tendered in evidence, and as we felt some doubt on the point, we called for the original which the learned Government Pleader was good enough to produce this morning. It is clear that the burden of proving that the Court of Wards had assumed superintendence of the property of a disqualified landholder, is on those who set up that case, and they have to prove strictly that the notification as regards the assumption of the superintendence was published in the Government Gazette. As, however, the original Government Gazette is now produced, the point need not be pursued further.

4. These then being the material facts, the question is on what date the Court of Wards assumed superintendence of the property of the Sardar. The learned Judge held that the Court of Wards 'assumed temporary superintendence on April 22, 1925 'after the District Court had authorised it to do so, and that as subsequently the Government had sanctioned the assumption of the superintendence by the Court of Wards, the Sardar became a Government ward on April 22, 1925. With all respect to the learned Judge, I am unable to accept his conclusion or the reasoning on which he has come to this conclusion, nor has the whole of that reasoning been supported before us by the learned Government Pleader. He, however, argues that the scheme of the Act provides for two separate methods by which a Court of Wards can assume superintendence of the property of a disqualified person. The first method is under Section 4, Sub-clause (1), and the second is under Section 10, Sub-clause (1). He further says that on the information of the man on the spot, that is the Collector, it is only the District Court which can be moved in regard to all persons mentioned in Section 5, except in the case of a minor, and it is not necessary in such cases where the District Court is moved to obtain the previous sanction of Government, and that such previous sanction is only necessary in cases which fall under Section 4, Sub-clause (1). The learned Government Pleader is not strictly right in saying that in all cases under Section 5, excepting the case of a minor, the declaration of the Court is all that matters. There is one more case in which also the R. 25 interference of the District Court as such on the application of the Collector is not necessary, and that refers to the case of a person who has been adjudged by a competent civil Court to be of unsound mind. It is therefore necessary to consider the relevant sections of the Act, and the scheme appearing therefrom.

5. Section 4 provides that the Court of Wards, which under Section 3 was the Commissioner, may, with the previous sanction of the Governor in Council, assume the superintendence of the property of any land-holder holding lands within the local limits of its jurisdiction who is disqualified to manage his own Property. 'Land-holder' is denned in Section 2(6) and there is no dispute in this case that the Sardar was a land-holder within the meaning of the Act. It follows from the terms of this section that unless there is a land-holder as defined by Section 2(6), and unless such land-holder is disqualified to manage his own property, the section does not come into operation. The next section is Section 5 which is in these terms : 'The following land-holders shall for the purposes of Section 4 be deemed to be disqualified to manage their property'. Then it enumerates such persons. Among them are (e) persons declared by the District Court, on the application of the Collector, and after such judicial inquiry as it thinks necessary, to be incapable of managing, or unfitted to manage, their own property owing to (i) any physical or mental defect or infirmity, or (it) such habits as cause, or are likely to cause, injury to their property or to the well-being of their inferior holders. I have no difficulty therefore in rejecting the learned Government Pleader's argument that Section 5 applies to' a class of land-holders whose property may be taken under the superintendence by the Court of Wards on the action of the District Court, different from the class of land-holders falling within Section 4 of the Act. In my opinion Section 4 must be read with Section 5, and unless the latter section is complied with no action is possible under Section 4.

6. Then comes Section 10, and it is in these terms :

(1) Whenever the Collector receives information that any land-holder is, or should be, disqualified under Sub-section (2) of Section 5, or that any landholder...has died and that his heir is, or should be, so disqualified, he may apply to the District Court and the District Court may authorise the Court of Wards to.

(a) take such steps and make such order for the temporary custody and protection of the property as the Court of Wards thinks fit; and

(b) where the land-holder...or heir is a minor, direct that the person (if any) having the custody of the minor shall produce him or cause him to be produced at such place and time and before such person as the Court of Wards may appoint, and make such order for the temporary custody and protection of the minor as the Court of Wards thinks fit.

Sub-section (2) provides that whenever the Court of Wards is authorised to proceed under Sub-section (1) it shall forthwith report its action for the information of the Governor in Council.

7. It is clear from this section that three possible cases would arise : (1) that a land-holder as denned by Section 2 is disqualified under Sub-section (1), that is to say, he is already disqualified prior to the Collector seeking intervention of the Court under this section; (2) that a land-holder is to be disqualified under Sub-section (1) of Section 10; and (3) that the land-holder is dead and his heir is or should be disqualified. The distinction between the first two cases is that a land-holder is already disqualified within the meaning of Section 5, and the Collector thinks it necessary to move the District Court for an order under Section 10, or that the Collector proposes to apply to the District Court for an order under Section 5, but considers it necessary that before the Court of Wards assumes under Section 4 an order for the temporary custody and protection of the property should be obtained under Section 10. It is also possible that an application may seek both kinds of orders, one as to a declaration of disqualification, and the other as to temporary custody. In the present case it is clear that there were two separate orders. The one for temporary custody was made on April 9, 1925, and the other for a declaration of disqualification under Section 5 was made on August 24, 1925 (vide exhibit 30). It is clear therefore from the terms of the order of April 9, 1925, that the District Court had no jurisdiction to authorise the Court of Wards to assume 'superintendence', nor had the Court of Wards after the receipt of the order any jurisdiction to make a declaration that it had assumed temporary superintendence of the estate of the Sardar. The Collector is not bound to act under Section 10. Obviously in cases, where he thinks that there is immediate danger to the estate of a particular land-holder and immediate intervention is necessary in the interest of the estate or a particular land-holder or his family, the Collector is empowered to act immediately as obviously some time must elapse before Government is moved, its sanction obtained and the Court of Wards assumes superintendence after such sanction. The point to note, however, is that there is no method provided either for notifying the order for temporary custody and protection of the property, or for its publishing in any manner, nor are any means provided by which such temporary custody or even the management of the estate by the Court of Wards under an order made by the District Court under Section 10 would come to be published or brought to the notice of the public, and would put them on guard before they proceed to deal with the particular land-holder. On the other hand, as will appear presently, the Act specifically provides for proper and efficient publication of the declaration by the Court of Wards of its assumption of the superintendence, and this in my opinion is the most important factor which serves to distinguish the nature and importance of the two kinds of orders, viz., the mere custody of the property of a disqualified land-holder and the assumption of the superintendence of his property under Section 4(1). It again is important to notice that no sanction as such of the Governor in Council, which, according to the learned Government Pleader, is the ultimate authority in such matters, is necessary before the Court of Wards assumes temporary custody of the property. All that the section provides is, that, after the Court of Wards has taken action in pursuance of the authority conferred upon it by the order of the District Court, it has forthwith to report the matter to Government, and it is clear that Government may either ask him to continue to hold temporary custody of the property or may ask him to withdraw from it. If it was intended that the assumption of the superintendence by the Court of Wards relates back to such temporary custody or the order for it, one would ordinarily expect the legislature to say so. The next section is Section 13. Section 13, Sub-section (I), provides as follows : Whenever the Court of Wards assumes the superintendence of the property of any land-holder under this Act, the fact of such assumption, and the date on which it was sanctioned by the Governor in Council, shall be notified in the Bombay Government Gazette and in such other manner as the Governor in Council may, by general or special order, direct. Sub-section (2) is in these terms : On and with effect from the date of such sanction the whole of the property, moveable and immoveable, of such land-holder, whether the existence of such property is known to the Court of Wards or not, shall be deemed to be under the superintendence of the Court of Wards. It is important to notice that the superintendence under this sub-section begins not from the declaration made by the Commissioner of the assumption of the superintendence of his property, but from the previous sanction given by the Governor in Council, which must precede the actual declaration of the assumption of the superintendence by the Court of Wards. Then Section 14 which is not very relevant to the issue raised in the appeal, but which throws some light on the point, provides that on the issue of a notification under Section 13, Sub-section (1), the Court of Wards is bound to publish in the Bombay Government Gazette a notice inviting claims against the Government ward. It is significant to notice that there is not a single section in the whole of the Act which provides for what is to be done after the temporary custody is assumed. There is no provision that any claims against the Government ward are to be invited after the Court of Wards has assumed temporary custody or temporary superintendence.

8. I have so far dealt with the material sections and the scheme appearing from them. The scheme then as I gather from the Act appears to be as follows. A land-holder defined by Section 2 has to be disqualified in the manner provided by Section 5. The Court of Wards then acts under Section 4. Obviously it may take time to move the Governor in Council to obtain the necessary sanction. The Collector or the Commissioner may consider it expedient to take immediate steps to take the property of a land-holder who is disqualified or about to be disqualified under their custody, and so Section 10 provides for the requisite order to be obtained from the District Court. But taking temporary custody is not the same thing as assuming superintendence. The conditions necessary for the latter are (1) disqualification under Section 5; (2) previous sanction of Government; (3) the actual assumption by the Court of Wards or some declaration to that effect; (4) notification in the Government Gazette setting out the fact of assumption and the date of the sanction. When these conditions are fulfilled, then only the property of the land-holder is deemed to be under the superintendence of the Court of Wards [s. 13 (2)].

9. I now come to Section 37 which is the only other relevant section, but before doing so, I shall briefly refer to Section 40 which has been apparently relied upon by the learned trial Judge. In his opinion that section seems to show that the Act contemplates two sets of wards. It is enough to state that the learned Government Pleader has not even referred to the section. Apart from that, all that the section says is that the Court of Wards may with the sanction of the Governor in Council at any time withdraw its superintendence from the person or property or both of a Government ward, and shall do so if the District Court certifies that the disqualification is at and. The reason for this distinction seems to be that in all cases of disqualified land-holders the Court of Wards may consider it inexpedient to continue the superintendence or unnecessary to do so, and then move Government for sanction to withdraw from it. It is bound, however, to give up the superintendence as soon as the authority which declared that there was a disqualification certifies that it is over and it is not necessary to continue the protection given to the disqualified land-holder by the Act.

10. I now come to Section 37. Section 37 merely provides that 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 to enter into any contract which may involve him in pecuniary liability; and 'Government ward' is defined in Section 2, which says that 'Government ward' shall mean any person of whose property, or of whose person and property, the Court of Wards may, for the time being, have the superintendence under this Act'. If the section applies, the decision of the learned trial Judge is correct. In my opinion it does not apply as the promissory-note in the suit was executed by the Sardar on August 19, 1925. The sanction for the assumption of the superintendence by the Court of Wards was given by the Governor in Council on July 10, 1926, and therefore under Sub-clause (2) of Section 13 the property of the Sardar must be deemed to be under the superintendence of the Court of Wards from that date, and he became a Government ward as and from that date. That being so, the promissory-note does not fall within the prohibition imposed by Section 37.

11. The learned Government Pleader has relied upon some passages in Maxwell. But I do not think that the present case falls within the observations in those passages. Here it is not a question of explaining a mere word or changing the order of words in a sentence. If the respondent's argument is to be accepted, the Act will have to be re-cast in more than one place, It would be necessary to alter again the terms of Section 13.

12. The tendency of modern decisions, as Maxwell points out, is upon the whole to narrow the difference between what is called a strict interpretation and what is called a beneficial interpretation. It is a well established canon of construction that every statute is to be expounded according to its express or manifest intention, and that all cases within the mischief aimed at are, if the language permits, to be held to fall within its remedial influence : The Sussex Peerage (1844) 11 Clause &. F. 85 and Fennel v. Riddler (1826) 4 L.J.K.B. (O.S.) 207. Statutes which encroach on the rights of the subject whether as regards person or property are subject to a strict construction in this sense, and it is a recognised rule that they should be interpreted if possible so as to respect such rights. As Brett M.R. observed in Attorney General v. Horner (1884) 14 Q.B.D. 245: 'It is a proper rule of construction not to construe an Act of Parliament as interfering with or injuring persons' rights without compensation, unless one is obliged so to construe it.' I am satisfied that I am not obliged to construe Section 10 as the respondent desires, and I cannot accept the argument that otherwise it would be a dead letter. After all the Collector is not bound to act under Section 10 in every case though it may be necessary to proceed under Sections 4 and 5. It is easy to conceive of many cases where the Court of Wards has assumed temporary custody, yet, nothing has happened to the detriment of the estate before the sanction of the Governor in Council to the assumption of superintendence of the estate. Because in some cases, as in this, such consequences may take place, it cannot be said that the construction I am placing upon the Act would reduce Section 10 to a dead letter. The Act is an Act which infringes upon the ordinary rights of the citizens, and apart from the rules of construction which I have pointed out, it gives very wide privileges to the land-holders, as denned in Section 2, to the prejudice of the ordinary citizens. In my opinion there is no reason in this case, unless the legislature had compelled me, to extend its scope further.

13. I would, therefore, allow the appeal and decree the plaintiffs' claim with costs throughout.

14. After I delivered my judgment on this point, the Government Pleader stated that there was a question of limitation in the case. When he finished his argument, it was open to him to raise the point, but he clearly did not do so. Apart from that, it seems to me that there is no substance in that point. The point was decided against the defendant by the learned Judge on the strength of a decision of this Court in Shivajirao v. Hari : (1920)22BOMLR943 . The learned Government Pleader concedes that if that decision stands then the decision of the learned Judge on that point cannot be interfered with. We are bound by that decision and reject the contention now raised.

15. That being so, there must be a decree in favour of the plaintiff for Rs. 6,095 up to the date of the suit, and further interest on principal amount at six per cent, from the date of the suit till judgment, with costs throughout, and further interest on judgment at six per cent, till payment.

Tyabji, J.

16. I am of the same opinion.

17. The suit is based on a promissory note. The defence is that when the defendant executed the promissory note he was a Government ward, i.e., a person of whose property the Court of Wards had for the time being the superintendence, under the Bombay Court of Wards Act (Bom. I of 1905), Section 2(a); and that therefore under Section 37 of the Act he was incompetent except with the approval of the Court of Wards (which had not been obtained) to enter into any contract which may involve him in pecuniary liability.

18. The learned Judge has upheld the defence.

19. The question depends upon the date from which the defendant must be deemed to be a Government ward.

20. The relevant facts are very few : (1) on April 22, 1925, the Commissioner acting as the Court of Wards passed the following order : 'In accordance with the authority granted by the District Judge, Poona, on 9th April 1925,'-under Section 10(1)(a)-'the Court of Wards, Central Division, hereby assumes the temporary management of the property of Shrimant Yeshwantrao Khanderao Dabhade' i.e., the defendant 'in the Mawal Taluka of the Poona District, and authorises the Collector of Poona, to take steps for the temporary custody and protection of that property, under Section 19(2) of the Bombay Court of Wards Act of 1905'. (2) On August 19, 1925, the defendant executed the promissory note sued upon. (3) On August 24, 1925, the District Judge, Poona, by an order of that date, certified that the defendant was a land-holder unfitted to manage his own property by reason of his improvidence and extravagant habits : Court of Wards Act, Section 5(2)(c)(4) On July 12, 1926, the Governor in Council sanctioned the assumption of the superintendence of the defendant's property. The learned Judge has held that the defendant became a Government ward from April 22, 1925, when the Commissioner assumed under Section 10(1)(a) what has been called temporary superintendence. The Government Pleader who appears for the respondent admits that unless the Court of Wards has under its superinten0dence for the time being, the property of any person, there cannot be a Government ward as defined in Section 2(a); and that Section 10(2)(a) does not empower the District Court to authorise the assumption by the Court of Wards of the superintendence of any property : but only to take steps and make orders for the temporary custody and protection of the property. The Government Pleader, however, argues that the clause in Section 10 must be so read as to give some efficacy to the Act: and that the whole purpose of the Act would be frustrated, unless the clause is so interpreted as to empower the District Court to authorise what must have the same effect as assumption of superintendence of the property under the Act : and what must have the effect of making the person whose property is taken under temporary custody, a Government ward, and of subjecting his contracts to Section 37.

21. It is therefore necessary to consider the scheme and purpose of the Act.

22. The preamble to the Act recites that it is expedient to establish a Court of Wards in the Bombay Presidency. That purpose is fulfilled by the first operative section-s. 3-which provides that the Commissioner shall be the Court of Wards. The rest of the Act lays down the functions and duties to be performed by the Court of Wards, and defines over what persons and property it shall have authority, and in what manner its authority shall be exercisable.

23. The function of the Court of Wards appears from Section 4 to be to assume superintendence of the property or the person and property of disqualified land-holders. Under that section this function may be exercised-i.e., superintendence may be assumed,-on two conditions being satisfied : first, previous sanction of the Governor in Council being obtained, and, secondly, the landholder being disqualified to manage his own property.

24. The first mentioned condition, viz., the previous sanction of the Governor in Council to assume superintendence, is further referred to in the proviso to Section 4 and in Section 13, which latter section requires the assumption of the superintendence under the Act to be publicly notified. I shall refer to Section 13 later. The condition secondly mentioned in Section 4 as necessary to be fulfilled, before the Court of Wards can exercise its function of assuming superintendence, is that the land-holder shall be disqualified to manage his own property. This condition, though it is mentioned in the second place, must in the nature of things be fulfilled before the sanction of the Governor in Council can be obtained. Which land-holders shall be deemed to be so disqualified is laid down in general terms in Section 5. Sections 6, 7, 8, 9, 11 and 12 deal more particularly with special cases or circumstances in connection with this condition. Of these, Section 9 provides that a land-holder may himself apply in writing to the Governor in Council to have his property placed under the superintendence of the Court of Wards. In that case the Governor in Council may, on being satisfied as to the two matters stated in Section 9, order the Court of Wards to assume superintendence. This section may be taken as a special form of both the conditions to assumption of superintendence being fulfilled: (a) the land holder is deemed to be disqualified by his own application, and (b) the sanction of the Governor in Council is included in his order.

25. After these conditions for the assumption of superintendence by the Court of Wards are satisfied, Section 13 follows, which, as I have already stated, requires that the fact of the assumption and the date of the sanction of the Governor in Council shall be publicly notified. It also lays down the significant provision that on and with effect from the date of the sanction, the property shall be deemed to be under superintendence.

26. This completes the part of the Act (Sections 4-13) containing the procedure through which the Court of Wards is clothed with the authority to assume superintendence.

27. I have not so far had to refer to Section 10. And yet that is the section from which the assumption of temporary superintendence is said to be derived. It is argued that this section empowers the District Court to make an order placing the Court of Wards in the same position in which the Court of Wards is placed when it assumes superintendence in accordance with Sections 4, 5 and 13. Under the terms of Section 10 the District Court may authorise the Court of Wards to take steps for the temporary custody and protection of the property. I will for the present merely refer to the marked difference between the language of Section 10 and of the sections dealing with the assumption: of superintendence. The words 'temporary custody and protection' seem to occur nowhere else in the Act; and nowhere else is the 'assumption of superintendence by the Court of Wards 'referred to in any other language.

28. The Act then proceeds to what may be called its second part. The Court of Wards having been duly authorised to assume superintendence, and superintendence having been assumed and notified in accordance with Section 13 so as to give the fact wide publicity, the Court of Wards may exercise the power and authority conferred upon it by the succeeding sections.

29. This power and authority fall under two heads : first, the Court of Wards may deal with claims against the Government ward : Sections 14-18. For this purpose Section 14 requires a public notice calling upon all persons having claims against the Government ward or his property, to submit the same in writing. The next following sections provide for such claims being investigated and dealt with.

30. The second head of the functions and powers of the Court of Wards (Sections 19-38) refers to the management of the property under superintendence-apart from dealing with the claims existing at the time of assuming superintendence. The Court of Wards may do all such things as the owner of the property might do for its proper care and management (Section 23). It may (with the sanction of the Governor in Council) sell, exchange and mortgage the property of the ward (Section 27). These are powers that originally vested in the Government ward. It must follow as a corollary from the transfer of these powers to the Court of Wards, that they must be taken away from the ward. Having been conferred upon the Court of Wards, they cannot any more be exerciseable by the ward himself. It is in this connection that Section 37 is enacted. On the one hand, the Court of Wards is empowered to manage the property and deal with it as the owner, and on the other, the authority of the original owner to deal with it is taken away. It is obvious that the powers conferred upon the Court of Wards would be futile unless the ward were rendered incompetent to transfer or mortgage the property or to enter into contracts involving him in pecuniary liability. This is what Section 37 does. Section 37 complements the transfer of authority resulting from the assumption of superintendence by the Court of Wards.

31. Section 39 refers to the case of a Government ward dying : the Court of Wards is not authorized to retain the superintendence of the property without the sanction of the Governor in Council.

32. Then follow provisions mainly with regard to the withdrawal of the superintendence. For withdrawal also, the sanction of the Governor in Council and notification of the fact are necessary. The learned Judge has misunderstood the significance of the provisions for withdrawal of superintendence. They fall under different heads corresponding to the different ways in which the superintendence may initially be assumed. The case is the simplest, where on the application of the landholder himself, under Section 9 the Court of Wards has been ordered to assume superintendence : Section 40(2) deals with this case. In other cases the assumption of superintendence rests on two foundations : (1) the sanction of the Governor in Council, (2) the land-holder being disqualified : Section 40(2) deals with each of these conditions. The superintendence may end by either condition being removed : (1) the Governor in Council may authorise withdrawal of superintendence, (2) the District Court may certify that the land-holder is no more disqualified.

33. Section 44 seems also to have been misapprehended by the learned Judge. It merely provides for supervision and control by the Governor in Council over matters not dealt with by the District Court. The District Court's orders, as the orders of a civil Court, are already subject to appeal or revision.

34. The learned Judge has dealt with the case on a footing that is not supported before us. He seems to have overlooked that superintendence cannot be assumed under Section 4 unless two necessary conditions are satisfied : (1) the sanction of the Governor in Council, and (2) the land-holder being held to be disqualified to manage his own affairs. The learned Judge has proceeded on the basis that since the District Court may in certain cases by its declaration put an end to the disqualification on the part of a Government ward to manage his own affairs : and since by putting an end to the disqualification, the District Court may consequentially put an end to the period of superintendence : therefore it must follow that even without declaring a land-holder to be disqualified, the District Court can give itself jurisdiction to sanction assumption of superintendence by the Court of Wards-a power that the Act reserves to the Governor in Council.

35. The powers conferred upon the District Court under Section 10 provide for cases where neither of the two conditions precedent may exist, viz., where the ward has not been declared disqualified to manage his own affairs, and prior sanction to the assumption of the superintendence of the ward's property has not been obtained. It provides for the preliminary stage where the land-holder may not even have been declared to be disqualified. The temporary custody and protection of the property is provided for, until after the land-holder having been declared to be disqualified, the sanction of the Governor in Council is obtained.

36. The scheme of the Act is clear. The first part of the Act provides that authority to assume superintendence may be derived only when there is a disqualified land-holder and when the sanction of the Governor in Council has been obtained. The second part provides for the exercise of the authority to superintend under two heads : dealing with existing claims against the ward, and managing the property as if the Court of Wards were the owner. The third part deals with the withdrawal of superintendence.

37. The two sections on which the decision of the case depends are Section 10 and Section 37, which are contained respectively in what I have referred to as the first and the second parts of the Act. I need not again emphasize the difference between the terms of Section 10 which gives powers to the District Court to authorize the Court of Wards to take steps and make orders for the temporary custody and protection of the property, and the terms of Sections 4, 6, 11, 13, 19, 27, 39, 40, and 44 all of which indicate that the sanction of the Governor in Council and notification of that fact are necessary for the assumption or withdrawal of superintendence.

38. The argument for the respondent requires the eyes to be closed upon the care with which on each occasion that superintendence or its withdrawal is authorised, the sanction of the Governor in Council has been insisted upon; and upon the fact that the authority given to the District Court under Section 10 may be exercised by it even in the case of a land-holder who is not disqualified at the time when the District Court makes the order. Moreover under Section 37 a person otherwise sui juris suffers a reduction of status and is made incompetent to contract. This affects the rights not only of the person directly concerned. The public are obviously interested in being warned against entering into contracts which are rendered unenforceable. This position is sought by the argument to be brought about, without the safeguard of the sanction of the Governor in Council, and without notification or publicity. The order for the temporary custody and protection of the property under Section 10 is not linked up with the scheme of the Act for assumption of superintendence; whereas Section 37 is a necessary corollary of the assumption of superintendence.

39. The learned Officiating Chief Justice has pointed out that the District Court's order dated April 9, 1925, was inaccurate in form and unauthorised, in so far as it purported to direct the Court of Wards not only to take temporary custody of the property but to assume its superintendence until further orders. It was evidently not realized that the expression 'assumption of superintendence 'has the special meaning that the Court of Wards Act gives to it : it connotes two main functions :

(1) calling upon all persons having claims against the Government ward to submit them and thereafter to deal with the claims, and

(2) doing all such things requisite for the proper care and management as the owner might do.

40. It is difficult to see how the exercise of either of these two functions can be deemed to be steps or orders which the Court of Wards may think fit to take or issue, for the temporary custody and protection of the property.

41. Section 10 seems to contemplate an application by the Court of Wards to the District Court particularising the steps and orders that the Court of Wards thinks proper, for the temporary custody and protection, and the District Court thereupon authorising those steps to be taken. It is necessary that the exact limits of the jurisdiction conferred by Section 10 should be borne in mind, so that it may be exercised by the District Court precisely in the manner in which the Act requires it to be exercised.

42. To give to an order under Section 10(2)(a) the effect for which the Act requires compliance with Sections 4, 5, 13 and 14, would, in my opinion, not be giving efficacy to the Act but setting the Act at nought.

43. In the result I am of opinion that the District Court is, not authorized by Section 10 to provide for the assumption of the superintendence of any property in the sense in which that expression is used in the Bombay Court of Wards Act, 1905; and that the order under Section 10 did not attract Section 37, nor has the effect of rendering the defendant incompetent to enter into contracts involving him in pecuniary liability. The defence, therefore, to the suit on the promissory note fails.

44. I agree in the order proposed by the learned Officiating Chief Justice.


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