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Court of Wards Amb Estate Vs. Tikka ChaIn Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberFirst Appeal No. 41 of 1952
Judge
Reported inAIR1954P& H103
ActsCode of Civil Procedure (CPC) , 1908 - Sections 88 - Order 35, Rule 5; Punjab Court of Wards Act, 1903 - Sections 48
AppellantCourt of Wards Amb Estate
RespondentTikka ChaIn Singh and ors.
Appellant Advocate S.M. Sikri, Adv. General and; Kartar Singh Chawla, Asst. Adv. General
Respondent Advocate Daya Krishna,; Mahajan,; Krishan Lal Kapur and;
Cases ReferredMahomad Azin Khan v. Mahomed Saadat Ali Khan
Excerpt:
.....interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a..........hoshiarpur district.3. on the 12th of march, 1951, the court of wards amb estate instituted civil suit no. 27 of 1901 under section 88 of the code of civil procedure, hereinafter referred to as the code. in paragraphs nos. 3 and 4 of the plaint it is stated that defendants nos. 1 and 2 claim that by the rule of primogeniture governing succession in the family deleiidant no. 1 is entitled to me possession of the property in suit, w(sic) defendants nos. 2, 4 and a claim that defendants nos. 1 to 5 are entitled to tne possession of the property in suit, rule of primogeniture being not applicable. in paragrph no. 6 ot the plaint it is stated that the court of wards for tne punjab does not claim any interest in the subject-matter of the suit other than for charges and costs.4. in the.....
Judgment:

Harnam Singh, J.

1. In order to appreciate the point of law that arises for decision in Regular First Appeal No. 41 of 1952, the facts of the case may be set out in some detail.

2. By Notification No. 601-133-1, dated the 29th of April, 1919, the Court of Wards for tne Punjab made an order under section 6 of tne Punjab Court of Wards Act, 1903, hereinafter re leered to as the Act, assuming superintendence of the persons and property of 'Mian' Lachhman Singh, Santdev Singh, Shivdev Singh and Hardev Singh sons of 'Raja' Ragnunath Singh of Jaswan, Hoshiarpur District.

3. On the 12th of March, 1951, the Court of Wards Amb Estate instituted Civil Suit No. 27 of 1901 under Section 88 of the Code of Civil Procedure, hereinafter referred to as the Code. In paragraphs Nos. 3 and 4 of the plaint it is stated that defendants Nos. 1 and 2 claim that by the rule of primogeniture governing succession in the family deleiidant No. 1 is entitled to me possession of the property in suit, w(sic) defendants Nos. 2, 4 and a claim that defendants Nos. 1 to 5 are entitled to tne possession of the property in suit, rule of primogeniture being not applicable. In paragrph No. 6 ot the plaint it is stated that the Court of Wards for tne Punjab does not claim any interest in the subject-matter of the suit other than for charges and costs.

4. In the written statement 'Kanwar' Shivdev Singh defendant objected 'inter alia' to the competency of the suit under section 88 of tne Coue.

5. On the pleadings of the parties the following preliminary issue was fixed; 'Whether an interpleader suit is competent in the present case?'

6. Finding that the interpleader suit was not competent the Court of first instance has dismissed the suit leaving the parties to bear their own costs.

7. From the decree passed in civil suit No. 27 of 1951 the Court of Wards for the Punjab appeals under section 98 of the Code.

8. Prom the provisions of Section 88 of the Code, it is plain that by interpleader suit a person in possession of property not his own is enabied to call upon the rival claimants to such property to appear before the Court, in order that the right to such property, as between such claimants, may be determined. 'Prima facie', civil suit No. 27 of 1951 falls within Section 88 of the Code.

9. Mr. Daya Kishan 'Mahajan' urges a double-barrelled objection to the competency of the suit. That objection may be stated as follows:

(a) that the Court of Wards for the Punjab being an agent for the wards, the suit is barred by Rule 5 of the Order XXXV of the Code; and

(b) that Section 48 of the Act by necessary implication bars an interpleader suit except in the case covered by that section.

10. Rule 5 of Order XXXV of the Code reads:

'5. Nothing in this Order shall be deemed to enable agents to sue their principals, or tenants to sue their landlords, for the purpose of compelling them to interplead with any person other than persons making claim through such principals or landlords,'

11. In order to bring the case within Rule 5 of Order XXXV of the Code it has to be shown that the Court of Wards for the Punjab is agent of the wards and has instituted the suit for the purpose of compelling the wards to interplead with persons other than persons making claim. through the wards. In illustration (a) appendedto that rule 'C' claims adversely to 'A' but not through 'A' whereas in illustration (b) 'C' claims through 'A'. In civil suit No. 27 of 1951 the rival claimants being the wards themselves, the suit does not come within the proh.billon enacted in Rule 5 of Order XXXV of the Code. Section 48 of the Act provides-

'Whenever, in the event of the death of any person of whose property the Court of Wares has assumed superintendence, the succession to his property or any part thereof, is unclaimed or disputed, the Court of Wards may either direct that the property, or part thereof be made over to any person entitled to or claiming the same, or 'may institute a suit of interpleader against the several claimants,' or may retain the superintendence thereof until a claimant has, in due course of law, established his title thereto in a competent Court.'

12. From the provisions of Section 48 of the Act it is plain that the Section 48 does not define interpleader suit or give procedure governing interpleader suits. For the definition of the expression 'interpleader suit' and the procedure governing such suits, one has to fall back on section 88 and Order XXXV of the Code.

13. Section 88 of the Code re-enacts with modifications Section 470 of the Code of 1882, the modifications being that for the words 'payment or property' occurring in section 470 of tne Code of 1882, the words 'debt, sum of money or other properly, movable or immovable' have been substituted, End for the words 'whose only interest is that of mere 'stake-holder' occurring in section 470 of the Code of 1882, the words 'who claims no interest therein other than for charges or costs' have been substituted.

14. That Section 88 and Order XXXV of the Code proceed upon the provisions of Order LVII of the Rules of the Supreme Court, 1883 (England) cannot be doubted. Interpleader suit under Rule 1 of Order LVII falls under two heads :

(1) interpleader by a stake-holder or persons analogous thereto; and

(2) interpleader by a sheriff or officer 'ejusdem generis'.

15. Part (a) of Rule 1 of Order LVII deals with Interpleader by a stake-holder or persons analogous thereto; & part (b) of that rule deals with interpleader by a sheriff or officer 'ejusdem generis'.

16. In construing Section 470 of the Code of 1882, Nanavutty J. said in --; 'Mahomad Azin Khan v. Mahomed Saadat Ali Khan', AIR 1931 Oudh 177 (A) at p. 197 :

'The definition of 'person' as given in the Gene-ral Causes Act, Imperial Act 10 of 1897, and United Provinces Act 1 of 1904, includes a company or association or body of individuals whether incorporated or not. The Board of Revenue of the United Provinces in the Court of Wards Department was thus a juristic person within the meaning of the word 'person' as defined in the General Clauses Act; and this Juristic person was holding the property of 'Raja' Mohammad Siddique Khan as a stakeholder, and as such it could file under Section 470 of the old Civil Procedure Code, an interpleader suit, and it could sue and be sued as such. It is obvious that if the Court of Wards took wrongful possession of another person's property under pretext of acting under section 44 of Act 3 of 1899, a person aggrieved could sue the Court of Wards for recovery of his property. It is true that section 48 of the present Court of Wards Act (4 of 1912) gives theCourt of Wards a statutory capacity as a person to sue under Section 88 of the present Civil Procedure Code, but the mere fact tnat no such statutory capacity to sue or to be sued was conferred upon the Court of Wards by the old Court of Wards Act 3 of 1899, does not in any way oust the jurisdiction of the Civil Courts to take proceedings upon a plaint filed by a person holding as a stake-holder under the provisions of Section 470 of tne old Civil Procedure Code, Act 14 of 1882.'

In Section 2(40) of the Punjab General Clauses Act 1898 the word 'person' is defined to include a company or association or body of individuals whether incorporated or not.

16a. From what I have said above, it is plain that the substitution of the words 'who claims no interest therein other than for charges or costs for the words 'whose only interest therein is that of a mere stake-holder' occurring in Section 470 of the Code of 1882 does not affect the application of -- 'AIR 1931 Oudh 177 (A)', to the facts of the present case.

17. But it is said that section 18 of the Act by necessary implication bars interpleader suit except when such suit, comas within that section.

18. Section 48 of the Act gives power to the Court of Wards to institute interpleader suit against several claimants waen on tne death of any person of whose properly the Court of Wards has assumed jurisdiction the succession to his property is disputed. In my judgment, that provision was made ouf of abundant caution to prevent an argument beaig advanced that on the reading of Section 48 of the Act the Court of Wards was precluded from instituting an inter-pleader suit against several claimants in the cir-cumstances stated in that section.

19. For the foregoing reasons, I would allow Regular First Appeal No. 41 of 1952, and set aside the judgment & the decree passed by the Court of first instance on the 18th of December, 1951.

20. In the result, I remand civil suit No. 27 of 1951 with directions to the Court of first instance to readmit the suit under its original number in the register of civil suits and proceed to determine the suit.

21. Having regard to the circumstances of the case, I leave the parties to bear their own costs throughout.

22. Parties Ere directed to appear in the Court of first instance on the 9th of November, 1953.

Dulat, J.

23. I agree.


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