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Dhunput Singh Vs. Shoobhudra Kumari and anr. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal620
AppellantDhunput Singh
RespondentShoobhudra Kumari and anr.
Cases ReferredMusst. Kustoora Koomaree v. Monohur Deo W.R. January
Excerpt:
ward of court - how far incapacitated from contracting--reg. x of 1793--court of wards act (beng. act ix of 1879)--contract act (ix of 1872), section 11. - .....by or against any ward, he shall be therein described as a ward of court; and the manager of such ward's property, or if there is no manager, the collector of the district in which the greater part of such property is situated, or any other collector whom the court of wards may appoint in that behalf, shall be named as next friend or guardian for the suit, and shall in such suit represent such ward, and no other person shall be ordered to sue or be sued as next friend or be named as guardian for the suit by any civil court in which such suit may be pending.' this is, however, a provision of procedure. we think it was not intended to affect, and cannot affect, any liability which may be incurred by a ward in so far as he (and under the bengal general clauses act, v of 1867, the masculine.....
Judgment:

Field, J.

1. In this case the plaintiff, Rai Dhunput Singh Bahadoor, sues Rani Shoobhudra Kumari, a lady whose estate is under the management of the Court of Wards, and he seeks to recover Rs. 9,100, being Rs. 6,000 principal and Rs. 3,100 interest, due upon a bond dated 3rd February 1876, which is found to have been executed by the Rani. He also seeks to have certain property (which is specified in the schedule annexed to the plaint) declared liable to be sold in execution for the realization of the amount claimed by him. Three questions arise for our decision in the case. The first is--Was Rani Shoobhudra Kumari duly constituted a ward of Court under the law relating to the Court of Wards at that time in force? The second is--If she was duly constituted a ward of Court, was she thereby incapacitated from contracting on any account whatever? The third question, which must be decided in order to dispose of this case, is--Whether Rani Shoobhudra Kumari, if duly constituted a ward of Court, but not thereby absolutely incapacitated from contracting, was yet incapable of contracting to this limited extent that she could not bind her property, or any portion of that property which came under the management of the Court of Wards

2. As to the first of these points, it has been contended before us, upon the authority of the case of Mahomed Zahoor Ali, Khan v. Musst. Thakooranee Rutta Koer 11 Moore's I.A. 468 that the Rani was never properly constituted a ward of Court; and reliance has been placed upon the following passage to be found at p. 477 of the report: 'The provisions of such a law should be strictly pursued, in order to effect the disqualification of any particular person.' Now, in that case it appears that the property in question had previously belonged to a lady named Maha Koer. She was declared a disqualified female under the provisions of Reg. LII of 1803--a Regulation applicable to the ceded and conquered provinces, and which is almost verbatim the same as Reg. X of 1793, applicable to the Lower Provinces of Bengal. Maha Koer died in 1853, and she was succeeded in the ownership of the property by Rutta Koer, her sister. The property was alleged to have remained in charge of the Court of Wards, although there were in the case circumstances which went a long way to rebut this allegation; but beyond doubt, no proceedings were taken under the Regulation to have Rutta Koer declared a disqualified proprietor: and upon the ground that the course of proceeding provided by the Regulation for having a disqualified proprietor made a ward of Court had not been followed, the Privy Council came to the conclusion that the mere fact of the property remaining under the charge of the Court of Wards, without the necessary steps being taken to have the disqualified proprietor declared a ward of Court, was not sufficient to make the provisions of the Regulation applicable to the lady, or, in other words, to render Laha Koer a ward of Court. In the present case, we think that the circumstances are widely different. Section 4 of Reg. X of 1793 provides, that the 'Collectors of the revenue are to ascertain and report to the Board' of Revenue, both now and hereafter, what proprietors in their respective zillas may come within the description of disqualified landholders specified in Section 2.' Now it appears from the document to be found at p. 29 of the Paper-book,--viz., a letter from the Collector of Moorshedabad to the Commissioner of Rajshahye, dated, 11th May 1865, that Mr. C. Mackenzie, the Collector of Moorshedabad, did in fact make to the Board of Revenue, through the Commissioner, the report required by Section 4 of the Regulation. We have then a document at page 30 of the Paper-book, which is a copy of a letter from the Under-Secretary to the Government of Bengal, in which the Under secretary is directed to acknowledge the receipt of a letter from the Secretary to the Board of Revenue, and in reply to state that the Lieutenant-Governor approves of the estates in the district of Moorshedabad, acquired under a deed of gift by the widows of Baboo Kirti Chunder and Udoy Chunder, and which they are represented as incapable of managing, being taken under the management of the Court of Wards. From the substance of this letter and also from the copies of the several memoranda by which a copy of this Government letter was forwarded to the Collector of Moorshedabad, it appears that this letter of Government relates to the same matter as the copy of the letter of the Collector of Moorshedabad to be found at page 29 of the Paper-book. Now, under Clause 1 of Section 5 of the Regulation, 'if a proprietor of land shall be reported disqualified solely from being a female, the Board of Revenue, in their capacity of a Court of Wards, shall immediately proceed to take the estate under their care, reporting the circumstance to the Governor-General in Council, who reserves to himself the power of declaring any female proprietor, whom he may deem competent to the management of her own estate, exempt from the operation of this Regulation.' It is clear from this provision that the Board of Revenue, upon the report of the Collector, is required to take under its care the estate of a disqualified female proprietor; and that the report there required to be made to the Governor-General is merely for the purpose of enabling the Governor-General to exercise the discretion vested in him by the Regulation--a discretion that is to declare any female proprietor to be competent to manage her own estates. That discretion, we may observe, was subsequently transferred to the Court of Wards by Section 3 of Reg. X of 1793. But it is clear that the sanction of the Government is not a condition precedent to the action of the Board, and it is evident from the other proceedings in this case that the Board of Revenue did, as a matter of fact, take over the property of the two widows, whose names are mentioned in the Collector's letter already referred to. Under these circumstances, the Board of Revenue, as a Court of Wards, having taken charge of the lady's estate, and the matter having been reported so as to give Government an opportunity of exercising its discretion, if it saw fit, to declare the lady competent to manage her estate, we are of opinion that the requirements of the Regulation were substantially complied with, and that, in consequence, the Rani was duly constituted a ward of Court. It is to be observed that the Rani became a ward of Court while Reg. X of 1793 was in force, and that; so far as this case is concerned, the provisions of the subsequent Acts of the Bengal Council, IV of 1870 and IX of 1879, have no application.

3. We now come to the second point,--viz., whether a person who has been duly constituted a ward of Court is thereby absolutely incapacitated from contracting or incurring debts of any kind. It is to be observed that no express provision is to be found upon this point either in Reg. X of 1793 or Reg. LII of 1793, or in any of the Acts by which those Regulations were amended, nor yet in the consolidated Beng. Act IV of 1870. The last Court of Wards Act (Beng. Act IX of 1879) does contain in Section 60 the following express provision: 'No ward shall be competent to create, without the sanction of the Court, any charge upon, or interest in, his property or any part thereof.' It is to be observed that if the proper construction to be placed upon the old Regulations or the Act of 1870 were this, that a ward of Court is absolutely incapable of contracting, the provision contained in Section 60 of Beng. Act IX of 1879 would have been unnecessary. Considerable reliance has been placed upon the case of Mahomed Zahoor Ali Khan v. Thakooranee Rutta Koer 11 Moore's I.A. 468 which has already been referred to. It is true that in that case the bond was a simple money-bond (see page 472 of the report), and it is also true that one of the questions presented for decision to their Lordships of the Privy Council was the wide question--Had the defendant the power to contract debts? and, as their Lordships point out in their judgment at page 475 of the report, not the more limited question--Whether she had power by contract to charge her land with debts? Having stated, the questions which were in dispute in that particular litigation, their Lordships proceed to say: 'Under these circumstances, the principal questions to be considered on this appeal are, whether the estate and property of Rutta Koer were in fact under the charge of the Court of Wards when the bond is alleged to have been executed; and if so, whether such custody or charge was of a character which made her what is called, under the Regulation to be presently referred to, a disqualified female, and incapacitated her to contract debt in any way.' Their Lordships found that the estate and property of Rutta Koer were in fact under the charge of the Court of Wards when the bond was alleged to have been executed. They further found that this custody or charge was not of a character which made her a ward of the Court; but they did not proceed to decide, and under the circumstances of that case it was not necessary to decide, whether, if the provisions of the Regulation had been properly applied to Rutta Koer so as to make her a ward of the Court, this would have incapacitated her to contract debt in any way, or would merely have incapacitated her to contract debt so as to bind the property which came under the management of the Court of Wards. Their Lordships say in one part of their judgment: 'There is no pretence for saying that, but for the application of this Regulation to her, Rutta Koer was incapable of contracting the debt in question. The Regulation itself does not in terms declare the incapacity, or define the circumstances in which it is to arise. The provisions of such a law should be strictly pursued in order to effect the disqualification of any particular person; and no one should lose her natural liberty of contracting debts unless the relation of ward and guardian between her and the Court of Wards be regularly and completely constituted.' The Privy Council decided that the relation of ward and guardian had not been regularly and completely constituted; and this being so, it was immaterial and unnecessary to say what would have been the effect as regards the simple bond-debt, which was the subject of that suit, if that relation had been regularly and completely constituted. Under these circumstances, we do not feel that the decision of the Lords of the Privy Council has affected the question which we have to decide.

4. Section 11 of the Indian Contract Act provides, that 'every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from contracting by any law to which he is subject.' Now the mortgage-bond, which forms the subject of the present suit, was executed after the Contract Act came into force; and the Rani was without question of the age of majority at the time. We have already observed that there is no express provision to be found in any of the Regulations or Acts prior to 1879 which disqualifies a Ward of Court from contracting; and this being so, we think that if capacity to contract existed apart from the provisions of the Regulations and Acts applicable to the Court of Wards, such capacity cannot be presumed to be taken away by anything contained in any of the Regulations or Acts prior to 1879, unless we can find that this result follows by necessary implication from a reasonable construction of these enactments. Turning now to Reg. X of 1793, Section 2 enacts that 'the superintendence of the Court of Wards extends to the persons and estates of all proprietors disqualified, under the rules prescribed for the Decennial Settlement, for the management of their own lands' Section 15 provides, that 'the manager is to have the entire care of the estate, real and personal. He will, therefore, have the exclusive charge of all lands, malguzari or lakheraj, as well as all houses, tenements, goods, money and moveables of whatever nature, belonging to the proprietor whose estate may be committed to his charge, excepting only the house wherein such proprietor may reside, the moveables wanted for his or her use, and the money allowed for the support of the proprietor, and his or her family entitled to a provision, which are to be left to the care of the guardian, where distinct guardians may be appointed.' Now, it is clear from this language that the house and the money allowed for the support of the proprietor (and we may notice that a female proprietor may, under Section 22, herself receive and disburse the allowance fixed for their maintenance) are in the disposing power of the ward; and that so far as regards those portions of the estate, it is clear that the ward must retain the power of contracting. Then, under Section 32, minors and other disqualified landholders having guardians, as described in Section 22, shall not be sued but under the protection and joint name of their guardians. It will appear, on a reference to Section 22, that a female proprietor who is not disqualified by minority, idiotism, lunacy, or other natural defect or infirmity rendering her incapable of attending to the care of her own person and maintenance, would not necessarily require a guardian; and this being so, a female proprietor could be sued without a guardian. This, we may observe, has been altered by the Act of 1879. So far as regards that portion of the estate which, under the provision of Section 15, came under the charge of the manager, who is by that section declared to have the entire care of the estate, real and personal, it is obvious that this provision of the law would have been practically nugatory if the ward could contract so as to affect those portions of the estate. We think, therefore, that the reasonable construction to be placed upon the whole of the Regulation read together is, that, so far as regards the property which by the Regulation came under the charge of the manager and the control of the Court of Wards, the ward became incapable of contracting. This is a view which we think to be consonant with the whole of the provisions of the Regulations read together, and which is further supported by some authority see the case of Musst. Kustoora Koomaree v. Monohur Deo W.R. January to July 1864 p. 39. Section 60 of the present Court of Wards Act (Beng. Act IX of 1879) therefore, merely states in express language what, in our opinion, is the result of a reasonable construction of the old Regulations.

5. Upon this second point then, the conclusion at which we arrive is, that a ward of Court, duly constituted as such, is not thereby absolutely incapacitated from contracting. But with reference to the third point, which must be decided in order to dispose of this case, we are of opinion, that the power of the ward to contract is taken away so far as regards all property which, under the provisions of the law, comes under the charge and control of the Court of Wards.

6. Then it has been contended, that so far as regards one of the three properties which form the subject of the mortgage-bond, viz., Patni Mehal Kohinagar, this property did not come under the management and control of the Court of Wards. It is said that this was the stridhun of the Rani; that it did not come to her by the deed of gift, dated the 26th February 1865; nor did it descend to her from her husband by right of inheritance; and that, therefore, so far as regards this property, the Court of Wards could have no jurisdiction.

7. We are not able to concur in this argument. The view which, according to our experience, has been taken of the Regulations and Acts concerned with the Court of Wards in these provinces is, that although the possession of a revenue-paying property is a condition precedent to the jurisdiction of the Court of Wards attaching, yet once that jurisdiction has attached all the property of the ward comes under the control and management of the Court. Section 15 of Reg. X of 1793 is in support of this view, and the provisions of the later Acts are still more precise upon this point. We may further refer to a Circular Order of the Board of Revenue, which is to be found at page 340 of Mr. Chapman's Edition of the Board's Circular Orders. Rule 2 says: 'Whenever a disqualified proprietor comes under the superintendence of the Court of Wards, the jurisdiction of the Court extends over all his property, including lands held without payment of revenue, and shares in revenue-paying lands held in common tenancy with other not disqualified proprietors. The Court of Wards is, therefore, to take charge of such property.' It may be quite possible that if the Court of Wards had not taken charge of the Patni Mehal Kohinagar, the plaintiff' in the present case might be entitled to enforce his lien against that property; but we think, having regard to the express provisions of the Regulations, that the presumption is that the Court of Wards did take charge of this property, and as this presumption has not been rebutted, we think that the plaintiff' is not entitled to have any decree affecting this property. The result will be that this appeal must be dismissed on all the grounds which have been argued before us.

8. There is then a cross-appeal by the Court of Wards on behalf of the Rani to the effect that the lower Court ought to have dismissed the entire claim of the plaintiff, and not to have passed a decree personally against Rani Soobhudra Kumari. Now, we think that if Soobhudra Kumari was competent to contract in respect of matters or property other than that which came under the control and management of the Court of Wards, it must follow, as a necessary consequence, that she can be made liable upon her contracts according to the usual procedure in force in this country. Reliance has been placed upon Section 51 of the present Court of Wards Act (Beng. Act IX of 1879), which came into operation before the present suit was instituted. This section, laying down a different provision from that contained in Section 32 of the old Regulation, provides, that in every suit brought by or against any ward, he shall be therein described as a ward of Court; and the manager of such ward's property, or if there is no manager, the Collector of the district in which the greater part of such property is situated, or any other Collector whom the Court of Wards may appoint in that behalf, shall be named as next friend or guardian for the suit, and shall in such suit represent such ward, and no other person shall be ordered to sue or be sued as next friend or be named as guardian for the suit by any Civil Court in which such suit may be pending.' This is, however, a provision of procedure. We think it was not intended to affect, and cannot affect, any liability which may be incurred by a ward in so far as he (and under the Bengal General Clauses Act, V of 1867, the masculine includes the feminine) is concerned. In the Courts of England there are many instances in which a minor or a female can only be sued by a next friend or guardian; but, so far as we are aware, this practice does not operate to remove or destroy the personal liability of such minor or female under the law in force in that country. We think, therefore, that the decree of the lower Court declaring the Rani to be personally liable is one with which we ought not to interfere. We may remark, in conclusion, that no argument has been raised before us that because the bond in this case was a mortgage-bond, a personal liability could not be enforced thereupon.

9. The appeal will be dismissed with costs. The cross-appeal will be also dismissed; but we think it unnecessary to make any order as to costs.


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