1. The plaintiff is the widow of Mohan Chandra Roy Chaudhury, zemindar of Atharbari, who was possessed of extensive zemindaries in Mymensingh. He died thirteen years ago in January 1895, leaving a will; of which he appointed the plaintiff executrix. The latter obtained probate on the 8th May 1895. Prior to his death he gave power to adopt and the plaintiff has adopted a son to him, Promode Charan Roy, now about 11 years old. The estate was at the testator's death and now is in debt and certain directions of the testator have not yet been carried out. The plaintiff says that she in May 1908 came to learn that the Court of Wards of Eastern Bengal intended to take possession of the estate. On the 3rd June 1908 that Court issued a notification assuming charge of the estate in suit, which was described to be the property of the minor.
2. It is of this order that the plaintiff complains. She says that the estate is vested in her as executrix and it is not the property of the minor so as to enable it to be taken possession of under the Court of Wards Act. She seeks to avoid a threatened interference with her possession. The suit is not against the Court of Wards, but against those defendants, who are sued in their individual capacity. The first defendant is a Deputy Collector at present on deputation as Manager under the Court of Wards of the estate in suit. The second defendant is the Collector and District Magistrate of Mymensingh and is Managing Collector. The third defendant is the Commissioner of the Dacca Division and is Managing Commissioner. As I have said the suit is not against them in their official capacity, but in their private individual capacity as alleged trespassers. They are sued not because of, but in despite of the fact that they are public officers. The suit as originally framed proceeded on the assumption that the plaintiff was in possession. It asked for retention in and maintenance of possession and for an injunction restraining interference with such alleged possession. At the trial Counsel for the plaintiff asked to amend the plaint so as to ask for recovery of possession should the Court hold (which is not admitted) that the plaintiff was not in possession of the estate or some part of it. No notice of suit has been given. All the estate is without the jurisdiction with the exception of a small parcel, which is stated to belong to it and which was purchased for Us. 10,000 out of funds belonging to the estate some short time ago, namely, house in Calcutta, 6, Bechoo Chatterjee's Street
3. The first objection taken is that the suit is bad, because no notice has been given and it is contended that notice is necessary under Section 424 of the Civil Procedure Code. It is argued, however, that Section 424 has no application as the defendants are not sued in an admitted official capacity, but as individual trespassers. I think this contention is correct. But apart from this and assuming that the section was otherwise applicable, it would not, I think, apply, so as to render notice necessary so far as the suit seeks relief by injunction. The section doubtless says 'in suit' but it also speaks of an act 'done' and would not therefore apply to prohibit a suit for an injunction to restrain the commission of an act not done, but threatened to be done. And it has been so held. Were this not so a party would be deprived of relief: as the threatened act might and probably would take place before the expiry of the period of two months. I hold therefore that no notice is necessary. The second preliminary objection is that, even if notice is not necessary, the Court has no jurisdiction to entertain the suit. In my opinion it has. This is not a case in which jurisdiction is sought to be founded on the fact that a portion of the cause of action arose within the jurisdiction, in which case it might be necessary to prove that the threatened disturbance of possession took place within the local limits. Evidence has been tendered to meet the denial of the defendants that they are threatening to obtain possession of the Calcutta house and their allegation that the Court of Wards of Eastern Bengal have in fact no power to take charge of the house in this province except through the intervention of the Bengal Government; a matter, I may here interpose, of mere machinery. It is in fact charged that the allegation in the 13th paragraph of the plaint was made only with a view to give this Court jurisdiction to entertain the suit. The plaintiff has on the other hand sought to prove that the defendants have attempted to interfere with the plaintiff's possession of the Calcutta house.
4. It is said that the first defendant asked Kader Nath Ray, an employee of the Atharbari estate to write to ascertain the rent paid for the Calcutta house, and to demand payment of the rent. This is denied. A letter was then written by the Naib Krishna Das Chaudhury to the tenant of the Calcutta house. This man was formerly in the service of the estate and was with other servants continued by the Court of Wards. This letter purports to be written on behalf of the Court of Wards and claims payment of rent. This was followed by a letter from the tenant to the plaintiff, in which he writes that he owes rents, but that as he has received a letter directing him to pay to the Court of Wards manager, he says: 'I cannot decide whether I should send rent to the said Babu.'
5. I have not heard the plaintiff's Counsel's argument as to this part of the case and I express no opinion on it so far as it consists of the evidence of the plaintiff's witnesses, as in my opinion a finding on it is immaterial, the Court possessing jurisdiction for the reasons to be stated. I may however in passing point out that apart from this evidence Exhibit I constitutes a threat against the Calcutta property, which the first defendant appears to have been desirous of dealing with, as also the second defendant, the direction of the latter to wait having, I think, been given in order that mutation of names might be first effected.
6. It is well settled that this Court may entertain an action in respect of immoveable property provided that a portion of such property is within the jurisdiction. This no doubt is contested on the ground that, though there is a house in Calcutta, it was purchased after the Court of Wards' declaration and does not, it is said, belong to the estate. This contention however is in my opinion not well founded. The assets, with which it was purchased, formed part of the estate and that, into which the assets were converted, whether before or after the declaration, equally belong to the estate. An acquisition by the executrix for the estate is part of it. And this is so as regards the defendants none the less that as between the executrix and the ultimate beneficiary, the latter might for one reason or other challenge or refuse to adopt the conversion effected. This being so a portion of the estate is in Calcutta. The suit seeks first a declaration and as portion of the estate, in respect of which that declaration is sought, is within the local limits, this Court can grant a declaration as regards the whole estate. And for the same reason it may grant an injunction. A distinct threat has been made and attempted to be given effect to in respect of the estate without the jurisdiction, that is against an estate, a portion of which is within the local limits. It is not necessary, as I have said, that that threat should either have been made or attempted to be given effect to within the local limits or specifically with reference to property within those limits. I hold therefore that this Court has jurisdiction to entertain the suit. But then it is said that relief should be by ejectment it being contended that the Court of Wards have already taken possession, the amendment, which I allowed, being the subject of objection. Undoubtedly there has been a disturbance of possession. Some rents and other monies have been collected and appropriated and the plaintiff's establishment directed to obey the order of the defendant appointed manager. But these rents have been collected in the name of the plaintiff and necessarily so, until mutation of names has been effected, which has not yet been done. The money orders cashed were in the plaintiff's name and the establishment was taken over in the plaintiff's absence and without her consent. Indeed she protested at once and has since made certain collections on her own behalf. Since the rule all collections on either side have stopped. There has been, therefore, in my opinion no such possession as would disentitle the plaintiff to an injunction and necessitate resort to an action of ejectment. I am of opinion that possession has really remained with the plaintiff, though there has been a continuing trespass, against which she is entitled to relief by way of injunction. I now come to the merits and as regards these the plaintiff has in my opinion a very clear case. The Court of Wards can only take possession of the estate, if the plaintiff's minor adopted son can be said to be its 'proprietor' within the meaning of the Court of, Wards Act. That term is not defined and it is therefore necessary to ascertain its meaning in this connection. It is contended for the defendants that the executrix is not the proprietor. But this is not the proper form of the question, which rather is-is the minor the proprietor If he is not, the Court of Wards have clearly no right to take it from the plaintiff, in whom as executrix it is vested in law. It is contended further that the position created for the plaintiff by the will is that merely of a manager for the infant proprietor. But however this may be we must look at the grant of probate. Under that grant the plaintiff is the representative of the testator and the estate vests in her as such. But then it is said that, even assuming this to be so, 'proprietor' in the Act does not mean a person representatively entitled, but the beneficiary, and that, as the minor is the ultimate beneficiary, the property is his notwithstanding that the estate has admittedly not yet been administered. I cannot however accept this contention. If it were sound the Court of Wards would be entitled to override the wishes of testators and proprietors generally. A person may desire and direct that his estate should vest in and be managed by an executor. The Court of Wards can, it is suggested, at any time override this direction and notwithstanding the grant of probate take the estate out of his hands (notwithstanding moreover that as Court of Wards it has no power of administration); or a trust might be created inter vivos for the benefit of an infant and the Court of Wards might according to the argument, come in with or without any pretext and dispossess the trustee. It can never have been intended that the Court of Wards Act was to have power to override private rights in this way. And the language of the Act does not warrant this construction. The residuary legatee does not become 'proprietor,' until after the administration has been completed and his interest thus ascertained. This interest is subject to the payment of debts and legacies and the discharge of other trusts contained in the will. No doubt he is beneficially interested in the estate subject to these payments and the discharge of these trusts, but he is not proprietor, except when a residue has been ascertained, which on completion of administration is made over to him by the executrix. It is admitted that the estate is unadministered. But it is said that the testator died thirteen years ago and there has been maladministration. If this be so it may be ground for an action for administration on behalf of the minor, but it is no ground for taking possession by the Court of. Wards. The argument even goes the length of asserting that the Court of Wards may determine, whether there has been mal-administration and on its own determination take possession of property vested in the executrix. No authority has been cited or any of these propositions, which appear to be clearly unsustainable. In my opinion the minor is not the proprietor of the estate so as to enable the Court of Wards to take possession of it. The plaintiff is then entitled to a declaration in terms of Clause 3 of the prayer of the plaint and to the injunction sought in Clauses 4-6 of the same. The plaintiff is entitled to relief against all the defendants. The documents and evidence show that the defendant Mr. Nathan directed the defendant Mr. Blackwood to assume charge of the Atharbari estate and that the latter by an order directed the first defendant to carry this out, which he has attempted to do. It is not necessary that all the defendants should actually commit the trespass and a trespass committed by order of a higher official is in substance the act of that official, who can be sued as a trespasser.
7. The rule is therefore made absolute with costs and the suit is decreed in the terms stated as against all the defendants with costs.