Raman Nayar, J.
1. The question here arising is apparently covered by authority -- see AIR 1933 Nag 85 and the unreported decision in C. R. P. No. .1019 of 1958 of this court (since reported in 1959 Ker LT 868) following that case -- but there seem to be difficulties both big and small I think I had better leave it to a division bench to resolve them.
2. The suit relates to immovable property claimed in the plaint as belonging in kanom right to the then Kuthiravattath Nair. The Nair was a person who had been adjudged a lunatic and the superintendence of whose property had therefore been assumed by the Court of Wards under the provisions of the Madras Court of Wards Act, 1902. This was in 1949, and, in due course, a manager was appointed for the property under Section 24 of the Act. Under Section 50, the suit should have been brought in the name of the ward, namely, the Nair, with the manager representing him as next friend. Rut, if we turn to the plaint, we find the cause title saying 'Kuthiravattath Nair's Estate under the superintendence of the Court of Wards by Manager: Plaintiffs,'
In the description of the parties following the cause title it is, however, said that the plaintiff is the manager appointed by the Court of Wards. No objection has however been taken so far to the frame of the suit, and I am walling to assume that the suit is one brought by the Nair represented by the manager as required by Section 50 of the Act. The Nair died on 23-5-1957 and, on 30-7-1957, the manager filed an affidavit dated 25-7-1957 stating this fact. In this affidavit he averred that he was the plaintiff and that since, notwithstanding the death of the Nair, the Court of Wards was legitimately continuing in management it was not necessary to implcad the legal heirs of the Nair.
This affidavit was followed by a petition brought on 17-9-1957 in the name of the plaintiff as appearing in the cause title to the plaint, namely, 'Kuthiravattath Nair's Estate under the superintendence of the Court of Wards, by Manager'. The petition purported to be under Section 151 and Order XXII Rule 2 of the Code, and it prayed that the petitioner may be permitted to continue the suit asplaintiff for the reasons stated in the affidavit dated25-7-1957. The court below has allowed this petition holding that the Court of Wards was the legal representative of the deceased Nair within the meaning of Section 2(11) of the Code.
It repelled the contention of the defendants that the suit had already abated since no legal representative had come on record within the time prescribed, stating, what is obviously incorrect in whatever way the plaint is read, that the Court of Wards was already on record and that therefore no question of impleading a new party arose. According, to it the only question was whether the Court ot Wards could continue the suit; and, even assuming, that the Court of Wards had to come in as a new party, the petition filed on 17-9-1957 could be considered as an application to set aside the abatement under Order XXII Rule 9 (2) In so doing it followed the Nagpur case akeady referred to. Against this, order, defendants 1 and 2 have come up in revision, and the plaintif (as described in the cause title to the plaint) figures as the Ist respondent.
3. I am told by learned counsel for the 1st respondent that I must read the plaint as one brought by the Nair represented by the manager, and this, as I have already said, I am willing enough to do. I am told next that I must treat the affidavit filed by the manager on 30-7-1957 (in which affidavit it will be recalled he claimed that he was the plaintiff and asserted that it was not necessary to implead the heirs of the deceased Nair) as an application brought by him under Order XXII rule 3 for coming on record as the legal representative of the deceased Nair, an application for which the necessary court-fee wa.s paid in the petition of 17-9-1957. In the alternative, I must read the petition of 17-9-1957 as an application brought by the manager under Order XXII Rule 9 (2) for setting aside the abatement and continuing the suit as the legal representative of the deceased Nair; this notwithstanding that no cause whatsoever is alleged for suffering the suit to abate.
4. But, when all these feats have been performed, the question still remains, whether the manager is the legal representative of the deceased ward and this is a matter on which I entertain doubt notwithstanding the two decisions which I have already mentioned. I must first point out that there is here no application whatsoever by the Court of Wards to come on record; the application is if at all, only by the manager. In the Nagpur case the application was by the Court of Wards, but, in C. R. P. No. 1919 of 1958 of this court (1959 Ker L. T. 868) it was, as in the present case, by the manager.
5. In the present case there has been no notification of release from superintendence under Section 62 of the Act, and it is said that the Court of Wards has retained superintendence under Section 61. A manager is appointed under Section 24 (1) of the Act, and. under Section 24 (2), his appointment terminates only when the Court of Wards ceases to exercise superintendence. Therefore, as pointed out in C. R. P. 1019 of 1958, (1959 Ker. LT 868) the manager continues in office. So far I am able to go, but I am by no means certain that, because the manager lawfully continues in office, ho is a person who in law represents the estate of the deceased ward and is therefore his legal representative within the definition in Section 2(11) of the Code. Section 50 of the Act makes it clear that the manager has no right to sue in his own name in respect of the property of a ward and that he can only represent the ward as next friend. It is not pretended that a next friend is a party to a suit or can come in as a party on the death ofthe ward--this is clearly recognised in the Nagpurcase.
The question then is whether, by reason of the powers given to the manager under the Act, powers which notwithstanding the death of the ward continue until the Court of Wards ceases to exercise superintendence, the manager can be said to be a person who in law represents the estate of the deceased ward, or at least a person who intermeddles with the estate of the ward. Now, if we turn to Section 20 we find that, on the Court of Wards assuming superintendence of the property of a ward, the Collector of the district takes possession of the property on behalf of the Court. This possession is not, under any of the provisions of the Act, made over to the manager so that it is clear that it is the Court of Wards and not the manager that is in actual possession of the property. The powers of the manager are given in Section 28 and his duties in Section 29. He is just what his name implies and nothing more, and I see nothing In these sections to indicate that, on the death of the Ward, the manager is competent to re-present his estate.
As I have said, the manager is not even in possession, and I doubt if it can be said that he intermeddles with the estate merely because he continues to manage even after the death of the ward. It is to be noted that in the present case the manager has no pretence that he is the executor of the deceased ward; and if he has performed any acts of management under Section 28 of the Act, those acts being in exercise of the lawful powers cannot make him an intermeddler and can, in any case, put him in a position analogous to that of an executor in his own wrong only in respect of those particular acts. It is only when a person has actually intermeddled that hebecomes a legal representative. The court is not to allow a person to intermeddle by continuing the suit of a deceased plaintiff when he has no right to do so and thus make himself a legal representative.
6. In C. R. P. No. 1019 of 1958: (1959 Ker. LT 868) the right to represent the estate of the deceased ward was traced to Section 61 of the Act, and in the Nagpur case to the similar provision in Sec, 33 of the Central Provinces Court of Wards Act, 1899. The ratio dccidendi in both cases is that the relevant section places the Court of Wards in the position of an executor or an administrator and therefore in the position of a person Who, in law represents the estate of the deceased ward. (I might here say that learned counsel for the 1st respondent does not accept this; according to him mere superintendence without any actual vesting is insufficient). But it is the Court of Wards and not the manager that is placed in this position, and I find difficulty in tracing any right of representation in the manager either to Section 61 or to any other provision of the Act. As I have already pointed out, there is in this case no application whatsoever by the Court of Wards.
7. I might add that the 1st respondent has the contention that it is nowhere alleged that the succession to the property of the deceased Nair is in dispute so as to bring Section 61 into play.
According to him, when the disqualified proprietor of whose property the Court of Wards has assumed superintendence dies, and somebody else becomes the proprietor, the superintendence automatically ceases and this cessation is in no way dependent on a notification under Section 62. It is only when, as a result of dispute regarding succession the Court of Wards decides to retain superintendence under Section 61 until the dispute is settled by acourt of law, that any question of the Court of Wards functioning as a sort of executor can conceivably arise.
8. Let the case be posted before a Division Bench.