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Ganoda Kanta Roy and ors. Vs. Probhabati Dasi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1893)ILR20Cal881
AppellantGanoda Kanta Roy and ors.
RespondentProbhabati Dasi and ors.
Excerpt:
bengal tenancy act (viii of 1885), sections 93, 95, 99--common manager--minor co-sharers--court of wards. - .....for the purpose of revising an order of the district judge appointing a person as the common manager of an estate which was owned by various persons, and the appointment was made, on the face of it, under the sections of the bengal tenancy act which begin with section 93 and end with section 99.2. the rule was sent to the district judge, and the district judge has sent a letter explaining the order, and he has shown, no doubt, circumstances which render it very desirable, it is could be done legally, that this estate should be under the charge of a common manager. but, notwithstanding that, upon a consideration of the facts of the case, we have come to the conclusion that this appointment was not legally made, and consequently we are compelled to interfere and set aside the.....
Judgment:

W. Comer Petheram, C.J.

1. This was a rule which was obtained by the Advocate-General for the purpose of revising an order of the District Judge appointing a person as the common manager of an estate which was owned by various persons, and the appointment was made, on the face of it, under the sections of the Bengal Tenancy Act which begin with Section 93 and end with Section 99.

2. The rule was sent to the District Judge, and the District Judge has sent a letter explaining the order, and he has shown, no doubt, circumstances which render it very desirable, it is could be done legally, that this estate should be under the charge of a common manager. But, notwithstanding that, upon a consideration of the facts of the case, we have come to the conclusion that this appointment was not legally made, and consequently we are compelled to interfere and set aside the appointment.

3. This estate belongs to four persons in three shares, one of which belongs to a person whom we may describe as the Rajah, another to his younger brother, whom we may describe as the Kumar, and the third to the two minor children of a deceased brother of the Rajah and the Kumar, who are now represented by their mother and guardian, the widow of the deceased. The estate is one of considerable value, and on the 4th March 1892 the Rajah, the elder brother, made an application to the District Judge, that application on the face of it being an application under Section 93 of the Bengal Tenancy Act to appoint the Court of Wards as the common manager of the estate under that section. Notice of that application was given by the District Judge to the other persons, that is, to the Kumar and to the mother of the minor children and they each of them filed a petition consenting that the Court of Wards should take charge of the management of the estate. Upon that state of filings the District Judge made an order directing that the Court of Wards do take the management, and the Court took possession under it.

4. It is apparent that that was an order by consent of parties; in other words, it was an appointment by consent of parties, its validity, as it seems to us, resting entirely upon the consent of the parties, and upon nothing else, and not upon the statutory powers given to the District Judge by the Act, because the Act only gives the District Judge power where the formalities prescribed by the Act have been gone through, notices have been given, and the periods fixed have elapsed, and the parties have not appointed a common manager. These formalities were not observed in this case, and the District Judge was not in a position to make the appointment. The appointment could only be made by consent of the parties; and their consent was to put the estate in the hands of the Court of Wards. This consent which they gave, might be regarded as having the effect of their appointing a common manager themselves and reporting the appointment for the information of the Judge, as contemplated in Section 95 of the Act. But however that may be, as I said just now, the Court of Wards under the appointment made by the Judge took possession of the estate and continued to manage it down to the month of August of that year, and they then, finding that the estate was one that they could not properly manage, gave it up. Upon that state of things, the matter coming before the District Judge after the Court of Wards had given up the estate, the Rajah filed another petition before the District Judge, withdrawing his consent that this estate should be placed in the hands of a common manager. But notwithstanding that, the District Judge, acting upon his own motion, and not upon the petition of any one, and no doubt acting, as he considered, in the interests of the minors, without following the procedure prescribed by Sections 93 to 95 of the Act, appointed another person, against whom apparently there is no objection, as the common manager of this property. Prom that order the Rajah and the Kumar now come up to this Court by way of revision under Section 622 of the Code of Civil Procedure, and the order itself is supported by Counsel on behalf of the minors, and as I said just now, we think that that order was not legally made and cannot be supported. The first order, as I have explained, was, we think, an order made by consent, and for its validity rested upon that consent only. We think that the Judge was not in a position to make any appointment except by the consent of the parties, the preliminaries not having been gone through, and consequently, when the Court of Wards gave up, they being the managers appointed by agreement of parties, the Judge had no authority to appoint a common manager unless a fresh petition had been filed by any of the parties, and he had taken the various steps provided by the sections. If he had done that, he might have placed himself in a position to make the appointment, but that not having been done, the rule will be made absolute. But we think we ought to say that if there is any real danger of the minor's estate being imperilled, there is no reason why an application should not be made now under Section 91 to obtain the appointment of a common manager and upon the proceedings which follow upon that application the whole interest of the parties could be considered and steps taken to protect their interests. We make no order as to costs.

5. The order of the 24th March 1893, refusing the application of the Rajah and the Kumar under Section 99 of the Tenancy Act, will also be set aside.


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