1. This is an appeal by the Collector as manager of the Court of Wards against the plaintiff who was the creditor of the wards. In August 1927, the estate of the wards was taken over under the superintendence of the Court of Wards and the Collector of Bulandshahr began to manage the estate. The plaintiff Gokal Chand held a promissory note dated June 26, 1926, said to have been executed by the wards for Rs. 5,000, which together with interest amounted to Rs. 6,750 on June 10,1929, when the present suit out of which this appeal has arisen was tiled. Originally the Collector was not impleaded as a defendant but on his own application, dated July 23, 1929, he was made a defendant. In this application he alleged that the estate had not till then been released by the Court of Wards and that the suit as against the defendants named in the plaint was improper and contrary to law and that the Court of Wards proposed to set up a defence in the case on behalf of the defendants and could not do so unless it was made a party. He accordingly prayed that he might be made a party and allowed an opportunity to set up a defence. The Court on July 31, 1929, made the Collector a party. In the written statement filed on his behalf he took the plea inter alia that the estate had not been released by the Court of Wards and inasmuch as no notice had been given to the Collector under Section 54, Court of Wards Act, the suit was not maintainable. It may be added that a similar plea had been taken by the other defendants in their written statements.
2. The Court below has come to the conclusion that the estate had in fact been released on June 10, 1929, and that accordingly there was no defect in the suit either on the ground of original non-joinder of the Collector or on account of want of proper notice to him. The learned Sub-Judge has further held that a previous notice given by the creditor under Section 16, Court of Wards Act in substance complied with the requirements of the provisions of Article 54 of that Act. There were other pleas as regards absence of due execution and want of consideration which have all been decided against the defendants and which are not now seriously pressed before us in appeal. The two main points for consideration before us are: (1) whether the estate had or had not been released by the Court of Wards on June 10, 1929, and (2) if it had not been released then whether any notice as required by Section ,54 of the Act was served on the Collector.
3. It appears that owing to difficulties experienced in pacing off the large debts that were out-standing the Collector reported to the Court of Wards for the release of the estate and the Court of Wards applied to Government for sanction to release the estate. On May 3, 1929, the Governor-in-Council granted the necessity sanction under the third proviso to Section 44, Court of Wards Act IV of 1912 to the release of the estate from the superintendence of the Court of Wards. This sanction was communicated to the Board of Revenue, and the Secretary to the Board of Revenue forwarded a copy of the sanction to the Commissioner of the Division for information and necessary action. The letter further drew the attention of the Collector to Rules 341, 342 and 315 of the Court of Wards Manual and asked that actual date of release be reported for publication in, the U.P. Gazette.
4. On May 29, 1929, the Commissioner forwarded a copy of that letter to the Collector of the district for necessary action. On May 30, 1929, the Collector on receipt of it sent it on to the Special Manager, Court of Wards, for compliance. On June 1, 1929, the Special Manager of the Court of Wards addressed a notice to the Collector saying 'if you say I may fix June 10, as the date for the release of Fatima Begam's estate.' The Collector thereupon said 'yes' on June 3, 1929. This endorsement was received by the Special Manager on June 4, 1929, and on the same date he noted thereon 'orders issued'. On June 26, 1929, the Special Manager forwarded it to the head clerk saying:
Issue orders to all the creditors and inform the ward: hand over all the papers to her son on June 10, 1929.
5. One more document is parwana issued by the Special Manager to the plaintiff in which he stated that as the order of the release of the estate had been received from Government, information was given that the estate 'will soon be released from the management of the Court of Wards.' In this parwana no specific date was mentioned for the release. Apparently something more was done in pursuance of the order referred to above, but we are somewhat in the dark as to what exactly happened on June 10, 1929, which had been the date fixed for the release of the estate. All that we know is that on July 23 following, the Collector applied to the Court asserting that the estate had not in fact been released till then. Subsequent correspondence to some extent indicates the same. We have not got before us all the correspondence, but on October 10, 1929, a Government order was issued from the Revenue Department to the Secretary, Board of Revenue, in the following terms:
With reference to your letter No. 631-X-127 (22) 29, dated October 1, 1929, I am directed to say that in the circumstances stated Government are pleased to cancel the order issued in Government Order No. 732-A-184, dated May 3, 1989, sanctioning the release of the Fatima Begum's estate, Bulandshahr District, from the Superintendence of the Court of Wards.
6. A copy of this order was forwarded in the usual course by the Board of Revenue to the Commissioner who sent it on to the Collector for information and necessary action. It seems to us that the Government order proceeded on the assumption that the estate had not been released and that it was not necessary to assume superintendence afresh but that it was sufficient merely to cancel the previous sanction which had been issued. It is also an admitted fact that no notification was published in the Government Gazette announcing that this estate was ever released or that it was taken over under the superintendence again. On; the other hand all the proceedings up to June 6, 1929, point to the conclusion that the estate was to be released on June 10, 1929, and would have been so released in the ordinary course.
7. The plaintiff asked for the inspection of all the papers and correspondence passing between the Collector and the Court of Wards from the time of the assumption of the superintendence till the time of the suit. The Court of Wards took the plea that most of these papers were confidential and could not be disclosed. The Special Manager, Babu Debi Charan, went into the witness box and although he stated that the estate had not been released by the Court of Wards, he declined to supply detailed information on certain questions put to him by the Counsel for the plaintiff. The Court also, considering that some of the correspondence was confidential, did not insist on its production. The learned Sub-Judge, however, has come to the conclusion that because the Court of Wards had done all that it would have done on May 21, 1929, the, estate was in the eye of the law released. His conclusion seems to be that in view of what had happened up to June 6, 1929, the estate must be deemed to have been duly released. In our opinion this view is not correct.
8. The order of the Board of Revenue, forwarding a copy of the sanction received from Government to the Commissioner for necessary action and directing the attention of the Collector to Rules 341, 342 and 345 as well as asking for a report as to the actual date of the release did not automatically bring about a release on May 21, 1929. Obviously a convenient date had to be fixed by the Collector on-which the requirements of the rules could be complied with and that date was to be reported to the Court of Wards. No doubt it was not necessary for the release to become operative that it should be notified in the Government Gazette. The notification referred to in Section 51 is of the fact of the release and the section does not mean that release cannot take effect till it has been notified in the Gazette gut there is no doubt that a date for the release has to be fixed and the release comes into effect on such date, and it is this date which has to be reported to the Court of Wards in order that necessary notification may be issued. We must, therefore, hold that the release did not come into effect earlier than June 10, 1929, and we must also hold that the Collector had in fact fixed that date for the release of the estate.
9. On the other hand, the mere fact that the Government proceeded on the assumption that the estate had not been released, and that the sanction previously given could be revoked of the fact that there had been no notification in the Government Gazette would not be absolutely conclusive. It may well be that although having regard to what happened on or about June 10, 1929, the estate was in the eye of the law released nevertheless the local authorities and the Court of Wards on their recommendation took the view that the estate had not in law been released. It seems to us that the Court Ought to have brought to its notice all the fact which happened on or about June 10, 1929, which had been fixed for the release and not merely the subsequent opinion of the higher authorities that the estate had not in fact been released.
10. We have already noticed that the plaintiff asked for inspection of the papers of the Court of Wards and for production of the correspondence. These were not produced on the ground that they were confidential. No doubt many of the papers must be confidential and it is for the Court of Wards in charge of those papers to consider whether it would or would not allow them to be produced in Court. But as the present claim is being defended in the interests of private owners, reports containing a recital of the facts as they happened on or about June 10, 1929, might not be so confidential as to make it impossible for the Court of Wards to allow them to be produced. But we undoubtedly find it very difficult to decide this question of fact without having before us the detailed particulars which must be contained in the reports submitted by the Special Manager and the Collector on or about that date. The defendant has undoubtedly these reports in his possession and it seems to be unfair to the plaintiff that it should beheld that the estate had not in fact been released when the important documents which would establish the fact, conclusively, are actually withheld.
11. We would accordingly allow this case to stand out for two weeks in order that the Counsel for the defendant may ascertain whether the Court of Wards would be prepared to produce in Court; (1) the report, if any, made by the Special Manager of the Court of Wards on or after June 6, 1929, recommending that the estate should not be released or that its release should be cancelled; (2) the report of the Collector made to the Court of Wards through the Commissioner on or after June 6, 1929, and before July 21, 1929, in which he might have recommended that the estate should not be released or that its release should be cancelled, and (3) the communications that passed between the Special Manager and the Collector between June 6, and July 23, 1929 which would show why the original intention of releasing the estate was abandoned, if at all.
12. In pursuance of our order dated October 10, 1933, the Court of Wards has now tendered 14 documents and one affidavit. As the plaintiff had insisted on the production of this correspondence in the Court below, these papers were brought to the Court, but an objection was taken on behalf of the Court of Wards that it should not be compelled to file them because they were confidential and that objection was allowed by the Court. These documents were not then filed. We have considered it necessary to examine these documents in order to enable us to pronounce our judgment. We have pointed out in our previous order that the events up to June 6, 1929, pointed to the release of the estate on that date, whereas events after July 21, 1929, pointed just the other way. There was therefore great difficulty in deciding what actually happened on June 10, which was the crucial date. In order to decide whether the estate was in the eye of the law released or not, we considered it absolutely necessary to bring on the record the additional correspondence which passed between the Special Manager and; the Collector and the higher authorities, as they would disclose all the facts in their true light. Counsel for the plaintiff does not consent to the production of this evidence but there is no doubt that on his behalf these very papers had been summoned in the Court below and were considered by his client to be essential. We accordingly admit them. Mr. Pearey Lal Banerji, Counsel for the plaintiff, states before us that he does not wish to produce any evidence to rebut this additional evidence. We accordingly direct that they be admitted and form part of the record under Order XLI, Rule 27, Civil Procedure Code, Documents Nos. 1 to 12 and 14 are original documents the genuineness of which is admitted by Mr. Banerji on behalf of the plaintiff. Document No. 13 is a copy of an original document which also has been produced and the correctness of the copy and the genuineness of the original are admitted by Mr. Banerji.