1. R.S.A. No. 650 of 1976 arises out of O.S. No. 200 of 1971 on the file of the Second Additional Munsiff, Hubli. The concerned appeal before the Additional Civil Judge, Hubli, is R.A. No. 78 of 1974. R.S.A No. 651 of 1976 arises out of O.S. No. 198 of, 1971 of the same Court. The concerned appeal is R.A. No. 79 of 1974 of the same Court. R.S.A. No. 651 of 1976 arises out of O.S. No. 199 of 1971 of the very Court. The appeal concerned is R.A. No. 80 of 1974 of the very Court of the Additional Civil Judge, Hubli.
2. The three suits were based on a similar set of facts, for the same reliefs and gave rise to common issues of questions of law and facts. The Additional Munsiff dismissed the suits both on facts and law. The Additional Civil Judge has allowed the appeals and set aside the judgment and decrees dated 16-4-1974 passed by the Second Additional Munsiff in all the three suits by his judgments and decrees dated 17-2-1976. These judgments and decrees of the Additional Civil Judge are challenged in these appeals.
3. The Respondents in these appeals are the plaintiffs in the respective suits. The facts relied upon by the plaintiffs are similar and many of them are undisputed. Theundisputed facts are that the suit properties belonged to Sardar Mahaboob Alikhan and they were handed over to the Court of Wards under the Bombay Court of Wards Act, 1905(hereinafter referred to as the 'Act'). His two sisters were Munvar Khatoon Bi and Navaz Khatoon Bi. Munvar Khatoon Bi died in 1947 and Navaz Khatoon Bi died on 1-7-1968. Even after the death of Navaz Khatoon Bi the State gave sanction to the Court of Wards to continue to exercise all the powers of superintendence over the properties by its Order No. RD 9 THE 68 dated 15-1-1969. The plaintiffs were and are in possession of certain portions situated on thekattas. The properties are in a prominent locality of Hubli. They are running some business. After some correspondence, the Court of Wards, namely, the appellant, issued notices to the plaintiffs under Section 28 of the Act read with Section 39 of the Mysore Revenue Act informing them to handover vacant possession of the properties in their possession, if not, they would be summarily evicted within seven days. Theplaintiffs filed the said suits requesting for decree of permanent injunction against the appellant as defendant. Theycontended that Navaz Khatoon Bi had inducted them as tenants on the suit properties; since about 15 years they were paying rents to her; after her death, they paid rents to thedefendant and the rents were accepted. Therefore, they were also the tenants of the defendant and as such the defendant could not, without taking recourse to the provisions of the Rent Control Act, evict them by exercising the powers of the Deputy Commissionerunder Section 202 of the Bombay Land Revenue Code.
4. The Trial Court framed the following issues :
1. Does plaintiff prove that he is a tenant of the suit property since the last 15 years under the defendant ?
2. If so, is he entitled to protection under the Mysore Re t Control Act, 1961?
3. Is the defendant entitled to summarily evict the plaintiff under Section 28 of the Court of Wards Act r/w Section 39 of the Mysore Land Revenue Act ?
4. Is the plaintiff's suit bad for want of notice under Section 31 of the Bombay Court of Wards Act ?
5. Is the plaintiff entitled to the injunction sought for by him ?
6. To what reliefs is the plaintiff entitled ?
5. The aforementioned issues arose in view of the contention of the appellant that notice under Section 31 of the Act was mandatory before the institution of the suits and no such notice having been undisputedly given, the suits are not maintainable and that the defendant was entitled to summarily evict the plaintiffs from the suit properties in exercise of his power under Section 28 of the Act read with Section 202 of the Bombay Land Revenue Code which is akin to Section 39 of the Mysore Land Revenue Act.
6. The Trial Court has, in all the cases, held that the amount paid by various plaintiffs to the defendant even after the death of Navaz Khatoon Bi did not constitute rent but was by way of compensation for actual occupation of the properties and that Navaz Khatoon Bi was not competent to lease out these properties to the plaintiffs when the Court of Wards saddled with the management of the properties in view of Section 37(1) of the Act and further that notice under Section 31 of the Act was mandatory and the same having not been issued prior to the institution of the suits, the suits were not maintainable.
7. The learned Additional Civil Judge has come to the conclusion that the amounts paid by the plaintiffs to the defendant must be regarded as rents paid by the plaintiffs and accepted by the defendant as such; much more so when the defendant had not produced any register admittedly maintained by him showing the amounts received by the defendant and that the fact that the defendant has accepted rents from the plaintiffs would fall within the ambit of the words 'with the approval of the Court of Wards' occurring in Section 37(1) of the Act. In other words, he has held that though Navaz Khatoon Bi has leased out the properties to the plaintiffs, that lease has been approved by the defendant even after the death of Navaz Khatoon Bi and therefore theconclusion of the Trial Court on this question of law is not correct. He has nextly held that Section 78 of the Act would be applicable only when the use and occupation of a propertyenvisaged by Section 28 is in contravention of the provisions of the Act, but, in this case, the use and occupation of theproperties by the plaintiffs is not in contravention of any of the provisions of the Act, in view of Section 37( 1) of the Act not being applicable to the facts and circumstances of the cases. Lastly he has held that as the remaining Ward, namely, Navaz Khatoon Bi expired on 1-7-1968, there was no Ward who could be regarded as Government Ward and therefore the provisions of Section 31 of the Act would not be attracted. One more contention urged before the Additional Civil Judge was that no notice was required to be issued to the defendant in view of the fact that the defendant had called upon the plaintiffs to vacate the suit premises within seven days. This contention also appears to have been accepted by the Additional Civil Judge. It is regrettable that the Additional Civil Judge has not given any reasons, cogent enough, for accepting this contention.
8. Though the suits have been disposed of by separate judgments and the appeals also have been disposed of by separate judgments, in view of the facts, circumstances and the questions of facts and law arising in the suit being almost common as clarified in the preceding paragraphs, I propose to dispose of these appeals by this common judgment.
9. I am clearly of opinion that the question whether the amounts paid by the plaintiffs to the defendants even after the death of Navaz Khatoon Bi constituted rents orcompensation for use and occupation of the suit schedule properties is not necessary to be gone into in these appeals in view of the clear provision in Section 31 of the Act, namely, pertaining to issue of notice prior to the institution of suits. Moreover, the finding of the Additional Civil Judge on that question, namely, the amounts paid by the plaintiffs to the defendant being rents and not the amounts for use and occupation, is more or less, a question of fact which may not, according to me, be open for disturbance in exercise of the power of this Court under Section 100 of the Code of Civil Procedure. In that view of the matter, questions of law arising from the provisions in Sections 28 and 37 (1) of the Act would not be called upon to be entered into in these appeals. Therefore, I propose to deal with Section 31 of the Act.
10. Before proceeding to the afore mentioned aspect, it is necessary to reiterate that the State in exercise of its power under Section 39 of the Act, sanctioned furthersuperintendence of the properties in question by the Court of Wards by its order No. RD 9 IHE 68 dated 15-1-1969. That shows that the Court of Wards namely, the appellant, continued to exercise his power of superintendence and therefore managed the properties in question.
11. Section 31 of Act the reads as follows :
31. 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 afternotice 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 Words ; and the plaint shall contain a statement that such notice has been so delivered or left ;
Provided that notice under this Section shall not be required in the case of any suit the period of limitation for which will expire within three months from the date of a notification issued under Section 13, sub-section (1).
If the proviso to Section 31 is applicable, then notice contemplated by the main Section would be dispensed with.
12. Section 13(1) of the Act reads as follows :
13. (1) Whenever the Court of Wards assumes the superintendence of the property of any land-holder or pension-holder under this Act the fact of such assumption, and the date on which it was sanctioned by the State Government, shall be notified in Official Gazette and in such other manner as the State Government may, by general or special order, direct.
It is not the order dated 15-1-1969 issued by the State in No. RD 9 IHE 68 that is in question in the suits. Therefore, theproviso to Section 31 of the Act is clearly inapplicable.
13. Now it is to be seen whether the understanding of this provision by the Additional Civil Judge, bearing in mind the fact that the last Ward Navaz Khatoon Bi expired on 1-7-1968 is borne out from the wording in the provision. It has been already stated by me that the reasoning of the Additional Civil Judge is Navaz Khatoon Bi having died, no Ward remained in the picture and therefore Section 31 would not be applicable as the properties in question were not the properties of any Government Ward. This reasoning is, on the face of it, fallacious. Death of the ward cannot, by any stretch of imagination render the properties of the ward to any other type of properties. It continues to remain the properties of the Government Ward who was expired. In this connection, what would be the legal effect, is clearly laid down by a Division Bench of the Bombay High Court in Parshram v. Gulabsing, AIR 1937 Bombay 313. Thejudgment has been rendered by Their Lordships Broomfield and Tyabji, .JJ. It has been laid down that in Section 31 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 assumedsuperintendence including that part of the estate which may be subject to pre-existing liabilities and a suit instituted without notice by a promisee against a Government ward holding Property of deceased promisor as his legal representative would not be maintainable.
14. Now the question that is to be gone into is what would be the legal effect of the death of a ward whoseproperty is under the superintendence and management of the Court of Wards by virtue of the sanction under Section 39 of the Act. In the decision in Firm Gabrulal-v.- Court of Wards, AIR 1933 Nagpur 857 it has been held that when a ward dies, the Court of Wards is legally competent to continue a suit being the legal representative and not the next friend of the deceased ward as the Court of Wards falls squarely within the definition of a legal representative inSection 2(11) of the Code of Civil Procedure. I respectfully agree with this proposition of law laid down by the Nagpur High Court.
15. Section 2(11) of the Code of Civil Procedure defines legal representative as a person who in law represented the estate of a deceased person ... So long as the ward is alive the Court of Wards would be administering the property by exercising superintendence over the property and managing the property on behalf of the ward. On the death of the ward, the Court of Wards would represent the estate of the ward. Therefore, it becomes legal representative of the ward. But, by becoming the legal representative of the ward underSection 2(11) of the Code of Civil Procedure, it never ceases to bethe Court of Wards functioning under the Act entrusted with the power of superintendence and management by virtue of the sanction issued by the State under Section 39 of the Act. It may be that it will be acting in dual capacity under such circumstances. Therefore, the understanding of the Additional Civil Judge of the provision in Section 31 of the Act cannot at all be upheld. Section 31 of the Act, makes the notice being issued to the Court of Wards before instituting a suit relating to the person or property of any Government Ward, mandatory.
16. Sri V. Tarakaram, Learned Advocate appearing on behalf of one of the plaintiffs in these appeals attempted to make a distinction by arguing that the suits in question are for a decree of injunction and therefore, it cannot in law, be said that the suits relate to the property of any Government ward. I am not impressed by this distinction attempted to be so made for reasons which are plain enough.
17. My view of the foregoing reasons, I allow these appeals and set aside the judgements and decree passed by the Additional Civil Judge, Hubli, on 17-2-1976 in R.A. Nos. 78,79 and 80 of 1974. It is held that the suits are not maintainable for want of notice mandatorily provided by Section 31 of the Act and therefore they are liable to be dismissed. Hence the conclusion of the Trail Court in dismissing the suits in question on this score is to be upheld and restored. Therefore the suits of the Respondents are dismissed.