1. This is the appeal of Rai Shiva Prasad against the judgment of a learned single Judge of this Court, whereby in effect he dismissed the plaintiff's claim for ejectment against a tenant and, incidentally, and what is of more practical importance, declared certain acts of the Court of Wards to be ultra vires.
2. On the 17th of September 1909 Shiva Prasad and Shambhu Prasad, brothers, of full age, on their own application, had their estate put under the superintendence of the Court of Wards. On that date the Act of 1899 was in existence. By 1919 presumably the estates had been cleared of its embarrassment, and the time was arriving when the Court of Wards wished to be free of this superintendence and on the 18th of December 1919 there was an agreement executed by the Court of Wards and by a lady named Gopi Kunwar, who was the mother of the plaintiff and defendant. The Court of Wards were of opinion that there should be a partition of the estate before it passed put of their control, and that gave rise to a question as to the position of the lady Mt. Gopi Kunwar. It transpired that she was willing on the partition to have maintenance instead of any share in the estate of her late husband. By the agreement of the 18th of December 1919 the lady expressed herself satisfied with the appointment of Mr. Lalit Mohan Banerji as arbitrator, and shortly before that Mr. Wallach and Dr. Sen had been appointed the representatives of Shiva Prasad under the provisions of Section 58 of the Court of Wards Act of the United Provinces (No. 5 of 1912). For the purposes of this case we assume that with regard to the appointment of Mr. L.M. Banerji there was no discussion, no agreement between the parties' representatives, Mr. Wallach and Dr. Sen. The procedure adopted by the Court of Wards in the appointment of Mr. Lalit Mohan Banerji was based upon the view taken by the Court of Wards that just as they had an undoubted right to appoint a representative on behalf of each such ward without the ward being in a position to raise any question as to the representative, so equally they had a right to appoint any person as arbitrator, and in the words of Section 58 to
require the said representatives to submit the question or dispute to the arbitration of such Person.
3. That is the position for which the plaintiff contends today, asserting that what the Board did shortly prior to and on the 18th of December 1919 was done entirely within the powers of the Court of Wards, and was in every way regular and proper. The question of the propriety of the acts of the Court of Wards came up in rather a curious manner. There is no evidence to suggest that Shambhu Prasad or his representative, Dr. Sen, even raised any question that the appointment of Mr. Lalit Mohan Banerji should in the first instance have emanated from Mr. Wallach and Dr. Sen. The arbitration was held, the matter was debated before Mr. Lalit Mohan Banerji and he, on the 31st of January 1920, gave an award.
4. We are not concerned with the details of that award other than the question of four shops in Benares. These, together with other immovable property, were allotted to the plaintiff as his share, and the plaintiff served notices upon four tenants that the shops had become his by virtue of the award, and that henceforth rent was to be paid to him. Rent in fact was paid in respect of these four shops down to the 31st of January 1921, and then it appeared that Shambhu Prasad instigated the tenants to refuse to pay the rent to Shiva Prasad, and on a suit for ejectment being brought the tenants set up the story that they had in fact paid the rent to the co-owner Shambhu Prasad. In that suit Shambhu Prasad asked to be impleaded. For some reason not very clear to us the Munsif did allow his application. When he appeared in this action, he raised the question as to the Validity of the acts of the Court of Wards, and he contended that he was not bound by the award, that the appointment of Mr. Lalit Mohan Banerji was invalid, and he sought in that way to obtain from the Court a decision that although by the award the shops had been declared to be the sole property of Shiva Prasad, nevertheless by virtue of the invalidity of the acts of the Board the partition was null and void in law, and therefore he still remained co-owner with Shiva Prasad of these shops. The case was transferred to the Court of the Subordinate Judge, who said that he was not going into the question with regard to Shambhu Prasad's complaint against the Court of Wards, and intimated his view that if Shambhu Prasad was dissatisfied with the validity of the award, he should take appropriate steps, or should have taken appropriate steps in the civil Court.
5. The defendants appealed to the District Judge, and the District Judge, having considered Section 58 of the Court of Wards Act, came to the opinion that the award was a valid one. From that decision Shambhu Prasad appealed, and although Mr. Harper had stated that the only question raised in the appeal before him was as to the validity of the award, the discussion in the second appeal before Mr. Justice Lal Gopal Mukerji ranged over a diversity of subjects. We have decided to-day that we could not allow Mr. Narain Prasad Asthana to argue that the whole arbitration was ineffective inasmuch as no question or dispute had arisen between the two wards. Whether there was a question or a dispute was a matter of fact, appropriate to be decided in evidence given in the Court of first instance, if Shambhu Prasad desired to challenge the propriety of the proceedings on that ground. A reference to the written statement filed by him indicates that indeed there was a dispute between the parties relating to jewellery, and the burden of his complaint in the written statement was not that there was no question of dispute but that the question of jewellery was not a matter referred to the arbitrator. However, on the ground that this point was not taken in the Court of first instance, and before Mr. Harper, we refuse to allow it to be discussed before us.
6. The first point which was argued by counsel on behalf of Shambhu Prasad was that when he and his brother of their own free will requested the Court of Wards to take their estate under its superintendence, the Court of Wards at that time was working under the Act of 1899; and that in that Act is to be found no provision analogous to Section 58 of the Act of 1912, and that therefore the parties who voluntarily requested the Court of Wards to superintend their estate in 1909 cannot be bound or affected by any subsequent legislation. This argument has appealed to Mr. Justice Lal Gopal Mukerji; but we find ourselves in disagreement with the contention of Shambhu Prasad. We are of opinion that when parties like the present plaintiff and defendants submitted their request to the Court of Wards, that their estate should be taken under its superintendence, they must have contemplated that legislation might be passed which might affect their rights, and that the Court of Wards Act of 1899 was no more an immutable eternal statute than any other statute. It is an impossible position for Shambhu Prasad to take up, namely, that he is entitled to be bound by only the provisions of a wholly repealed Act, and that neither he nor his estate has any concern with subsequent legislation designed to meet the working of the Court of Wards Act in the interest alike of the Court of Wards and the people whose estates are subject to its jurisdiction. By Clause (1) of Section 2 the Act of 1899 was repealed in toto. Clause (2) saves certain acts which had already been done, and pronounced that those acts which had been done by virtue of the repealed enactment should, as far as possible, be deemed to have been done under this Act, namely the Act of 1912. We find ourselves unable to appreciate how it can be said that the voluntarily putting up of an estate into the hands of the Court of Wards in the year 1909 amounted to a bargain, or created in Shambhu Prasad any right to insist that during the continuance of the estate in the hands of the Court of Wards no legislation which should be passed should affect him or the estate. We take it that the Local Government had full power to repeal the Court of Wards Act in 1912, as in fact they did, and substitute for it such an enactment as seemed in their opinion to be for the greater benefit of the estates and persons whose estates it held and for the Court of Wards.
7. We, therefore, hold that Shambhu Prasad was bound by Section 58, and that there was on the true construction of that section no obligation on the part of the Court of Wards to await an agreement between the representatives, whom they had appointed, as to an arbitrator who should sit to decide the question or dispute. The contention of Shambhu Prasad was that if he were bound by Section 58 he could not resist the appointment of a representative on his behalf, nor would he have any say as to who that representative should be; and similarly Shiva Prasad could not resist the appointment of a representative, but it was argued on his behalf that as soon as the representatives were appointed, it was their duty to agree between themselves as to a suitable arbitrator and to submit the name of that arbitrator for the approval of the Court of Wards. We think that was a strange construction of the section, because the section, when looked at as a whole, is imperative in its terms as between the Court of Wards and the wards. It appoints a representative for a ward, whether the ward likes the representative or not. Having appointed the representatives for as many wards as may have disputes amongst themselves, it requires the representatives to submit the question of dispute to arbitration of person or persons as it may approve.
8. We think the word of importance in the latter part of the section is 'require' and we think this section contemplated an absolute right in the Board to nominate any representative they chose and a further absolute right to require those representatives to conduct the cases of the wards whom they were representing before such a person as the Board might approve, and that in practice the Board indicated their approval of the person as arbitrator to the representatives, and whether the representatives liked the appointment or not they were required to submit the question of dispute to that approved arbitrator. In other words, no choice by this section is given to the ward as to the representative who should appear for him nor is any choice given to the representative as to the arbitrator. All that is required is that the arbitrator shall be approved by the Court of Wards and thereupon the representatives are required to conduct the case before him. In that view of the section the decision of Mr. Harper was in every way right.
9. In these circumstances we are of opinion that we must allow the appeal of Shiva Prasad and set aside the decision of the learned single Judge of this Court and restore the decision of the District Judge. We, therefore, allow this appeal with costs and fees of both hearings in this Court, which in the special circumstances we certify at Rs. 50 in each of the four cases, making one fee of Rs. 200.