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NaraIn Mal and ors. Vs. Ganpat Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberFirst Appeal No. 26 of 1953
Judge
Reported inAIR1957Raj73
ActsRajasthan Court of Wards Act, 1951 - Sections 55; Constitution of India - Article 14
AppellantNaraIn Mal and ors.
RespondentGanpat Singh and ors.
Appellant Advocate Chandmal, Adv.
Respondent Advocate Thanchand and; Sawaimal, Advs.
DispositionAppeal dismissed
Cases ReferredIn Hari Kishun Das v. Mahammad Safi Jan
Excerpt:
- - it may be mentioned that ganpat-singh has now been recognised as the heir of zalamsingh, and so the suit against the other minor jeevraj singh would in any case fail......that as both the minors were under the superintendence of the court of wards on the date of the suit, notice should have been given to the collector or collectors in charge of their estates under section 55 before the present suit was brought against them,8. in balwant singh v. collector of sharanpur air 1930 all 602 (a), a similar provision contained in section 55 of the u.p. court of wards act came up for consideration, and it was held that section 55 was not confined to suits relating to properties over which superintendence had been actually taken.9. in hari kishun das v. mahammad safi jan, air 1924 oudh 438 (b), it was held that though the property was not actually under the management of the court of wards, which never took pos-session of the property of the disqualified.....
Judgment:

Wanchoo, C.J.

1. This is an appeal by Narain Mal and others who are plaintiffs in a suit brought by them in the Court of the Civil Judge of Balotra.

2. 'The plaintiffs' case was that Zalam Singh jagirdar of Ratora was indebted to them, and in that connection he executed three bonds on Poh Badi 3rd St. 2005 for Rs. 2,526-4, Rs. 199/- and Rs. 256/4/- respectively, and the rate of interest in each case was 12 per cent per annum. The suit was brought after the death of Zalamsingh. The defendants were the State of Rajasthan, Mst. Pep-kunwar and Mst. Vishankunwar widows of Thakur Zalamsingh, and Ganpat Singh and Jeevraj Singh. In this appeal, we are concerned with Ganpatsingh and Jeevraj Singh only. They were made parties on the ground that they were claiming the right to succeed to Zalamsingh on the basis of adoption. As they were both minors, they were sued through their mothers. The case against them was that as both of them were claiming to be heirs of Zalamsingh by virtue of adoption, they were made parties as the dispute as to who should succeed to Zalamsingh's jagir was still going on before the proper authorities.

3. Among other defences, it was pleaded on behalf of these two minors defendants that as they were minors, and their estates were under the management of the Court of Wards, they could not be made Parties to the suit, and the suit was not maintainable against them, and that in any case no suit was maintainable against them without notice to the Court of Wards, and making the Court of Wards a party. These objections were based on Sections 55 and 56 of the Rajasthan Courtof Wards Act (No. XXVIII) of 1951.

4. Two issues were framed with respect to these pleas, and were decided as preliminary issues against the plaintiffs, and the suit against these two minor defendants was dismissed. Thereupon, the present appeal was filed by the plaintiffs praying that the order dismissing the suit against these minor defendants be set aside, and the court below be ordered to proceed against these minor defendants also. It may be mentioned that Ganpat-singh has now been recognised as the heir of Zalamsingh, and so the suit against the other minor Jeevraj Singh would in any case fail.

5. Section 55 of the Court of Wards Act provides for notice of a civil suit, and is in these terms :

'No suit relating to the person or estate of any ward shall be instituted in any Civil Court until the expiration of two months after notice in writing has been delivered to or left at the office of the Collector or other person in charge of estate etc., etc.

The court below has held that notice under Section 55 was necessary, and as no such notice was given the suit against these two minors could not proceed as they were wards within the meaning of the Court of Wards Act. It seems that the two minors have estates of their own, and these estates are under the management of the Court of wards. In addition, they have made rival claims to the estate of Zalamsingh oh the basis of adoption. The question that arises therefore is whether in these circumstances where the suit is with respect to the estate of Zalamsingh, it was necessary to give notice under Section 55 of the Court of Wards Act.

6. The contention of the appellants in this connection is that as the Court of Wards was not in charge of the estate of Zalamsingh, it was not necessary to give notice to the Court of Wards under Section 55 in a suit which concerned only the estate of Zalamsingh. Now the word 'estate', as defined in the Court of Wards Act means any land or interest in land held by a person under a State grant and includes any other properties held by such grantee. Further under Section 16, the whole estate of a ward including ail his movable and immovable properties shall be deemed to be under the superintendence of the Court of Wards, and any property, which the ward may inherit subsequent to the date of such assumption or dec-laration, shall be deemed to Be under the superintendence of the Court of Wards, though the Court of Wards may in its discretion refrain from assuming the superintendence of any property which the ward may acquire otherwise than by Ineritance subsequent to the date of such assumption. A notice will be necessary in this case if the assets of Zalamsingh can be said to be the estate of either of the minors. Now it is true that at the time when the suit was filed by the plaintiffs, there was dispute as to which of the minors was entitled to the estate of Zalamsingh. But that) would in our opinion make one or the other minor the holder of the estate of Zalamsingh even on the date of the suit, for as soon as the proper authority recognised the adoption of one of the minors, he immediately became the holder of the estate of Zalamsingh from the date of Zalamsingh's death.

We are told that Ganpat Singh has been recognised as the adopted son, and therefore he became the heir of the deceased Zalamsingh from the date of his death. The result therefore is that either one minor or the other on the date of the suit was entitled to the estate of Zalamsingh. No suit relating to that estate could be commenced without notice under Section 55 as both the minors' estates were then under the superintendence of the Court of Wards. It was argued on behalf of the appellants that even though one minor or the other might be entitled to the assets of Zalamsingh those assets had not been actually taken over by the Court of Wards, and therefore no notice under Section 55 was necessary.

7. That brings us to the question whether actual taking over of the entire estate was necessary before Section 55 could come into play, or it would be enough if the Court of Wards assumed superintendence as provided under Section 16 of some part of the estate to bring Section 55 into force. We are of opinion that there is no warrant for holding that Section 55 requires that all the estate should be actually under the charge of the Court of Wards, and that if any part of the estate is not under the charge of Court of Wards, the suit with respect to that part of the estate can be brought without notice under Section 55. A notice has been made obligatory as soon as the Court of Wards assumes superintendence of the estate, and it is immaterial if some part of the estate is not under the actual superintendence of the Court of Wards. Our attention in this connection was drawn to the words 'the Collector or other person in charge of estate' in Section 55, and from these words it was argued that it meant that the actual charge of the entire estate must have been taken over. We cannot agree with this.

The words 'in charge of estate' have been, used in order to denote the particular officer to whom the notice should be given for there are so many-Collectors for example in Rajasthan, and the person giving notice must know to which collector he has to give notice. It has nothing to do with the actual possession of the entire estate by the collector. We are, therefore of opinion that as both the minors were under the superintendence of the Court of Wards on the date of the suit, notice should have been given to the Collector or Collectors in charge of their estates under Section 55 before the present suit was brought against them,

8. In Balwant Singh v. Collector of Sharanpur AIR 1930 All 602 (A), a similar provision contained in Section 55 of the U.P. Court of Wards Act came up for consideration, and it was held that Section 55 was not confined to suits relating to properties over which superintendence had been actually taken.

9. In Hari Kishun Das v. Mahammad Safi Jan, AIR 1924 Oudh 438 (B), it was held that though the property was not actually under the management of the court of Wards, which never took pos-session of the property of the disqualified proprietor, still the legal character of the wards and their property was not affected, and in law they were deemed, to be under the superintendence of the Court of Wards. This case was in a different content namely whether the ward, whose property had not been taken in possession, could make contracts; but the principle is that the actual possession over the property is not necessary to bring the various provisions of the Court of Wards Act into play.

10. Lastly, it was urged that Section 55 is ultra vires as it is hit by Article 14 of the Constitution. The argument is that this provision is favouring certain private persons whose estates have been taken aver under the superintendence of the Court of Wards. We are of opinion that there is no force in this contention. There is a reasonable basis of classification in as much as the State takes over the superintendence when the Court of Wards Act is applied to the estate of a particular jagirdar. As the State is looking after the property of the jagirdar, the same considerations which apply to giving of notice under Section 80 of the Code of Civil Procedure to the State, apply to the jagirdar whose estate is under the superintendence of the Court of Wards.

Just as the State on getting a notice under Section 80 may compromise a matter and avoid un-necessary litigation, so the Court of Wards, which is a department of State, can come to terms on receiving notice and avoid unnecessary litigation.

We are, therefore, of opinion that there 'is a reason, able basis for classification and Section 55 is not hitby Article 14 of the Constitution.

11. It follows, therefore, that as there was no notice in this case as required by Section 55, the suit against the two minors was not maintainable.

12. The other objection was with respect to Section 56. That section provides the form of suit In view, however, of our decision on the objection relating to Section 55, We do not consider it necessary to go into the objection based on Section 56 as to the form of the suit.

13. We, therefore, dismiss the appeal with one set of costs to respondents, 1, 2 and 3.


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