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Balwant Singh Vs. Collector of Saharanpur and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1930All602
AppellantBalwant Singh
RespondentCollector of Saharanpur and anr.
Excerpt:
- - in support of this contention strong reliance is placed on the judgment of their lordships of the privy council in the case of krishna prasad singh v. the section is quite wide in its scope and there is no good ground for restricting its meaning. we have no doubt that if all the circumstances are brought to the notice of the collector, and he is satisfied that there is a bona fide claim of the plaintiff to some or all of the properties in dispute in this case, he may be induced to take action under 8. 57 of the act, unless there has been some conduct of the plaintiff which amounts to an estoppel in law against him or any specific statutory provision like section 66, civil p......upon by the learned advocate for the appellant are easily distinguishable. in the case of lal singh v. collector of etah [1914] 36 all. 331 section 48 (now corresponding to section 54) was held inapplicable inasmuch as the property in dispute did not belong to the ward at all, and the validity of the decree in his favour was not at all challenged, so that the suit did not relate either to the person or property of the ward. all that was held in sri thakurji v. hira lal a.i.r. 1922 all. 408, was that the disability of a disqualified proprietor extends to the property which he owns and not to that which he holds as a trustee. in that case the ward was not suing in his own capacity, but was merely acting as guardian or sarbarehkar of the idol who of course was not a ward. the.....
Judgment:

Sulaiman, J.

1. This is a plaintiff's appeal arising out of a suit for recovery of possession of properties in lists A, B and C of the plaint and for a declaration of title as regards the properties in lists 0 to G. It appears that the plaintiff succeeded to what is called Landhaura estate in 1913, and in 1916, 1917 and 1918 he executed deeds of gifts and exchange in favour of his wife relating to properties A, B and C which he now says were fictitious transactions, the title never having passed to his wife. The bulk of the property in list C was acquired at public auction by a sale which the plaintiff alleged was benami. The property in list D was acquired by a pre-emption suit, and those in E, F and C under private deeds. All these were alleged by the plaintiff to belong to him and not to his wife. In 1923 the plaintiff himself applied that his estate should be taken by the Court of Wards under its own superintendence, and in his declaration expressly excluded the properties in dispute in the suit on the ground that they belonged to his wife. The Court of Wards took over the superintendence of his property, excluding those now in suit. Later on the Court of Wards also took over the management of the estate of the plaintiff's wife Mt. Ram Kunwar in 1924, and in that connexion took possession of these properties which are now in dispute in the suit.

2. The plaintiff himself filed this suit on his behalf and impleaded the Collector as representing Mt. Ram Kunwar. The suit has been thrown out by the learned Subordinate Judge on the preliminary ground that it was not maintainable. The main questions of fact have not been tried. Nor has the Court had any occasion to consider the effect of Section 66, Civil P.C., with regard to the properties purchased at auction.

3. The plaintiff has preferred this appeal from the decree, and it is urged on his behalf that inasmuch as the properties now in dispute had never been taken possession of by the Court of Wards, his suit relating thereto is not barred by the provisions of Section 55, Court of Wards Act. In support of this contention strong reliance is placed on the judgment of their Lordships of the Privy Council in the case of Krishna Prasad Singh v. Moti Chand [1913] 40 Cal. 635, which turned on the provisions of the Bengal Court of Wards Act 9 of 1879. This case was naturally followed in Krishna Parsad Singh v. Gosta Behari Kundu [1907] 5 C.L.J. 434 and Mohammad Abduz Salam v. Hani Kamalmukhi [1918] 5 Pat. L.W. 92.

4. In our opinion these cases can be no guide to us when considering the provisions of the U.P. Court of Wards Act. There are two main distinctions which cannot be lost sight of. Under Section 7, Bengal Act (referred to by Lord Moulton in the course of the argument at p. 519), the Court is given power to take charge of all the property of the disqualified proprietor but it is not expressly provided that it is bound to do so. The language of Section 16 of our Court of Wards Act, is specific, and is to the effect that the whole of the movable and immovable property of a ward shall be deemed to be under the superintendence of the Court of Wards. The only exception is with regard to properties acquired subsequently by the ward otherwise than by inheritance. That is not the case here. In the second place, there is a still more important difference in the provisions of the two Acts. Sections 51 to 55, Bengal Court of Wards Act, make it quite clear that the real party to the suit is the ward himself, and the suit is to be brought by him, but that the manager or the Collector is to act as his next friend or guardian. The sections in Chap. 7, U.P. Court of Wards Act, on the other hand, show that the ward himself has no locus standi to institute the suit, and that the real party to the proceeding is the Collector himself. The latter is not appearing as a next friend or a guardian of the ward, but is the real party to the suit. It would thus appear that in Bengal the omission of the Collector from the array of the parties would be a serious irregularity inasmuch as the proper guardian or next friend would be absent. In our provinces the omission of the Collector would amount to an absence of the real party to the litigation. It is, therefore, quite clear that we cannot allow ourselves to be influenced by the judicial pronouncements under Act 9 of 1879.

5. As pointed out above, the whole of the movable and immovable property of a ward is deemed to be under the superintendence of the Court of Wards. It is immaterial whether as a matter of fact the Court of Wards has discovered or taken possession of the entire estate or not. The definition of the word |'ward' in Section 3(3) also shows that a disqualified proprietor, any part of whose property is under the superintendence of the Court of Wards, is a ward within the meaning of the Act. It cannot, therefore be contended for a moment that Balwant Singh, whose main estate is under the superintendence of the Court of Wards, is not a ward within the meaning of the Act.

6. Now Section 55 provides;

No ward shall sue or be sued, nor shall any proceedings be taken in the civil Court otherwise than by and in the name of the Collector in charge of his property or some other person as the Court of Wards may appoint in this behalf.

7. That section is in no way confined to suits relating to properties over which superintendence has been taken. The section is quite wide in its scope and there is no good ground for restricting its meaning. It prohibits all suits by all wards otherwise than by and in the name of the Collector. The present suit undoubtedly is a suit by a ward and was not properly instituted.

8. The other cases relied upon by the learned advocate for the appellant are easily distinguishable. In the case of Lal Singh v. Collector of Etah [1914] 36 All. 331 Section 48 (now corresponding to Section 54) was held inapplicable inasmuch as the property in dispute did not belong to the ward at all, and the validity of the decree in his favour was not at all challenged, so that the suit did not relate either to the person or property of the ward. All that was held in Sri Thakurji v. Hira Lal A.I.R. 1922 All. 408, was that the disability of a disqualified proprietor extends to the property which he owns and not to that which he holds as a trustee. In that case the ward was not suing in his own capacity, but was merely acting as guardian or sarbarehkar of the idol who of course was not a ward. The disqualified proprietor was himself not personally interested in the property which was the subject-matter of litigation. He merely happened to be the manager of an endowed property and was, therefore, held not to have been disqualified from acting on behalf of the idol. While we are pronouncing our judgment our attention is drawn to the case of Lalta Singh v. Chattar Singh [1916] 19 O.C. 306, where the same view of Section 55 has been taken as has been expressed by us. We must, therefore, hold that the decree of the learned Sub-Judge was correct.

9. The learned advocate for the plaintiff has urged before us that a great hardship would be caused to his client if the Court of Wards does not allow the question of his title to these properties to be litigated, as his rights may become extinguished by lapse of time. The Court of Wards Act makes ample provisions for 'such contingencies. Under Section 57 where any question arises as between two wards of the same Court it is lawful for the latter to appoint a separate representative on behalf of each ward who can file a statement in a civil Court for being heard and disposed of. We have no doubt that if all the circumstances are brought to the notice of the Collector, and he is satisfied that there is a bona fide claim of the plaintiff to some or all of the properties in dispute in this case, he may be induced to take action under 8. 57 of the Act, unless there has been some conduct of the plaintiff which amounts to an estoppel in law against him or any specific statutory provision like Section 66, Civil P.C., creates a bar. We accordingly dismiss this appeal with costs.


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