1. This is a defendants' appeal arising out of a suit for recovery of an amount from the estate of Banke Bahadur Singh, deceased. The plaintiffs impleaded the minor sons of Banke Bahadur Singh under the guardianship of their mother, Mt. Janki Kunwar. She declined to act as guardian, and ultimately the Collector, as the manager of the Court of Wards, was appointed the guardian ad litem of the minors. One of the pleas raised in defence was that the minors were the wards of the Court of Wards and could not be sued in their personal capacity without impleading the Collector. The Court of first instance overruled this plea on the view that the presumption under Section 16, Court of Wards Act of 1912 was rebuttable and it was established by evidence that the Court of Wards had not in fact taken possession of some of the properties of the wards. An appeal was preferred by the Collector of Ballia on behalf of the minor defendants, and that appeal has been dismissed by the Judge, although he did not accept the interpretation of Section 16, as put upon it by the trial Court.
2. The whole of the Nagra estate of which some properties form part which are stated to be still in the possession of the wards and not in the possession of the Court of Wards, was taken over by the Court of Wards in 1904 when the defendants' grandfather was alive. Subsequently, the estate was released from its superintendence on 6th August 1920, and with effect from the same date there was a fresh assumption of superintendence under Section 12 of the new Court of Wards Act 1912, and there was a notification published in the Gazette in that month. Banke Bahadur Singh, the father of the present defendants, was declared to be a ward of the Court, and the entire estate was brought under the superintendence of the Court of Wards.
3. Between 1920 and 1922, the plaintiffs advanced some money to Banke Bahadur, who executed a sarkhat, dated 1st December 1922, which is the basis of the present suit. Banke Bahadur died in 1924, and the present suit was instituted against his sons in 1925. It is quite clear that Banke Bahadur, after his estate had been taken over by the Court of Wards was not competent to contract a debt and any money advanced to him was not legally recoverable. It is quite obvious that the view of the learned Munsif that the presumption under Section 16 was a rebuttable presumption is wrong. The section provides that the whole of moveable or immovable property of the ward shall be deemed to be under the superintendence of the Court of Wards. That section is imperative, and the presumption is not rebuttable.
4. Both the Courts below are wrong in thinking that the Court of Wards can under the law assume superintendence of part of the property of the minors and not be deemed to have assumed superintendence of another part when the notification related to the entire estate. The mere fact that the Collector has omitted to take the possession and custody of part of the property, assuming that this is the case here, would not in any way take that part of the property out of the superintendence of the Court of Wards. This point is well settled, and we may only refer to Lachmi Narain v. Fateh Bahadur [I903] 25 All. 195, which has been followed by the Oudh Court in the case of Hari Kishun Das v. Mohd. Shafi Jan A.I.R. 1924 Oudh 438. Section 55 of the Act also enjoins that:
No wards shall sue or be sued not 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 such other person as the Court of Wards may appoint in this behalf.
5. The present suit was, therefore, defective. The estate of Banke Bahadur Singh had devolved by inheritance on the minors, and they could not possibly have been sued in their personal capacity without impleading the Collector as a party.
6. An objection is taken on behalf of the respondents that the appeal as preferred to the Court of the District Judge was not competent, inasmuch as it was filed by the Collector who was not a party to the suit. This objection is, in our opinion, not tenable. The Collector was made the guardian ad litem of the minors, and he preferred the appeal on behalf of the minors. It may either be taken as an appeal by the guardian ad litem of these minors or an appeal under Section 65, Court of Wards Act, from a decree passed against a minor who was a ward. In this view of the case the appeal was rightly preferred to the District Judge, and a second appeal to this Court also lies. The result of our view is that the decrees of the Courts below cannot be maintained. We accordingly allow this appeal, and setting aside both the decrees, dismissed the suit with costs in all the Courts, including costs in this Court on the higher scale.