1. The plaintiff is a lunatic and is represented by her husband as her next friend. She has obtained a decree for khas possession against the defendants.
2. The defendants 2 to 4 appeal.
3. The pleas taken on their behalf are--(1) That as the plaintiff has not been adjudged a lunatic under any law she cannot sue by her husband as next friend; (2) that the Lower Court has not decided the question whether the lands of the appellants constitute a tenure or a holding; and (3) that as they are mortgagees in possession, the plaintiff cannot eject them.
4. In support of the first plea, reliance is placed on the terms of Section 463. But the rulings of the Allahabad, Bombay, and Madras High Courts in Nabbu Khan v. Sita(1897) I.L.R. 20 All. 2, Pran Sukhram Dinanath v. Bai Ladkor (1809) I.L.R. 23 Bom. 653 and Kadala Reddi v. Naris (1901) I.L.R. 24 Mad. 504, show that the provisions of Section 463 are not exhaustive and that a lunatic may sue through a next friend, even though not adjudged a lunatic under any law. If the lunatic were a defendant not adjudged to be so under any law, it might amount to a denial of justice to hold that he could not be sued, until application were made to have him adjudged a lunatic under some law.
5. I therefore consider that we should follow the rulings above cited.
6. The question as to whether the defendants occupy lands appertaining to a tenure or holding has been practically decided by the Lower Court. It has been found that they have no permanent or transferable right in these lands and that their mortgagor had none either. That being so, whether the lands they occupy belong to a tenure or holding is immaterial, as in either case the plaintiff is entitled to eject them.
7. The third plea of the appellant is concluded by the ruling of this Court in Krishna Chandra Butt Chowdhry v. Khiran Bajania (1903) 10 C.W.N. 499 : 3 C.L.J. 222.
8. I would, therefore, dismiss this appeal with costs.
9. The plaintiff respondent commenced the action, out of which the present appeal arises, for declaration of title to immoveable property and for ejectment of the defendants therefrom. The husband of the plaintiff alleged that she was a person of unsound mind and obtained leave from the Court to carry on the suit as her next friend. The plaint stated that one Kali Charan. Bhadra held the lands in dispute under the plaintiffs as tenants with a non-transferable right; that Kali Charan had granted a usufructuary mortgage in favour of defendants 2 to 4 and had placed them in possession, and that subsequently his equity of redemption had been purchased at an execution sale by the first defendant. The plaintiff accordingly prayed for a declaration that none of the defendants had acquired any valid title to the lands and also for a decree for ejectment. The Courts below have given a decree in favour of the plaintiff. The defendants have appealed to this Court, and on their behalf the decision of the lower Appellate Court has been challenged, substantially on two grounds, namely, first that, inasmuch as the plaintiff has not been adjudged a lunatic under Act XXXV of 1858, it was not competent to her husband to prosecute the suit on her behalf; and secondly that assuming the holding to be non-transferable, the defendants have acquired a good title under the usufructuary mortgage. In my opinion neither of these contentions can be successfully maintained.
10. As regards the first point taken on behalf of the appellants, it is pointed out by the learned vakeel, who appears for them, that while Chapter XXXI of the Civil Procedure Code provides for the conduct of suits by and against minors, whether or not a guardian has been appointed for such minors under Act VIII of 1890, Section 463 contains a provision for the conduct of suits by or against persons of unsound mind, only when such persons have been so adjudged under Act XXXV of 1858 or under any other law for the time being in force. From this circumstance, the learned vakeel for the appellants invites us to draw the inference not only that the Legislature intended that the provisions contained in Sections 440 to 462, which are primarily applicable to minors, shall be limited in application only to such persons of unsound mind as have been so adjudged under the Lunacy Act, but also that the Legislature intended that no person of unsound mind shall sue or be sued, until he has been adjudged to be a lunatic. In support of this position he places reliance upon the case of Subbay v. Buthaya (1883) I.L.R. 6 Mad. 380. In my opinion the contention is unsound, and is based upon the fallacy that the Code of Civil Procedure is exhaustive. As was pointed out by my brother Woodroffe and myself in Panchnnan Singha Roy v. Dwarka Nath Roy (1905) 3 C.L.J. 29 and Hukum Chand Bold v. Kamalanand Singh (1905) I.R.R. 33 Calc. 927, the Code of Civil Procedure was not intended to be and is not exhaustive. The Code does not affect the power, and the duty of the Court in cases where no specific rule exists, to act according to equity, justice and good conscience, though in the exercise of such powers it must be careful to see that its decision is based on sound general principles and is not in conflict with them or the intentions of the Legislature. The Courts in this country have in matters of procedure powers beyond those which are expressly given by the Code of Civil Procedure, which binds the Courts only so far as it goes. The powers of the Court are not rigidly circumscribed by the provisions of the Code, and I cannot assent to the theory that the Court has no power to make a particular order, though it may be absolutely essential in the interests of justice, unless some section of the Code can be pointed out as a direct authority for it. As regards the matter now before us, it is clear that the Code is imperfect. Sections 440 to 462 embody various provisions applicable to suits by or against minors, including those who have, as also those who have not, statutory guardians. When we come to Section 463 however we find that the provisions applicable to minors are extended only to such persons of unscund mind as have been duly adjudged to be such. The Code therefore makes no provision for the representation of lunatics, who may be plaintiffs or defendants, but who have not been adjudged as persons of unsound mind. Under such circumstances, I must hold that the Court, in which a suit has been instituted by or against such a person, has an inherent power to determine whether a party, who is alleged to be a lunatic is really so, and, if he is found to be a lunatic, to make an order for the appointment of a next friend or a guardian ad litem. If any other view were maintained, the consequences might be extremely inconvenient and there might be a failure of justice; for instance, during the pendency of the proceedings under Act XXXV of 1858, the right of suit of the lunatic may become barred by limitation; or, if the lunatic is proposed to be made a defendant, the intending plaintiff would bo obliged to take recourse to proceedings under the Lunacy Act before he could be permitted to institute his action. No intelligible reason has been assigned in support of such a procedure. In other systems of law, such a procedure is not considered necessary; see for instance Story on Equity Pleadings (sections 64 to 66 and Section 70), where it is pointed out that, if a lunatic has no Committee or if the interests of the Committee have clashed or may clash with the interests of the lunatic, informations are exhibited by the Attorney-General on behalf of the lunatic, because lunatics are under the peculiar probation of the Court; and in such cases the lunatic is Darned as the party and a third person is named as the relator in order that he may be answerable for the costs. Similarly, if the defendant is a lunatic, who has not been so found by an inquisition and who has therefore no Committee, or if the defendant is an adjudged lunatic, but the Committee has an interest opposite to that of the person, whose property is entrusted to his care, an order may be obtained for appointing another person as guardian ad litem for the purpose of defending the suit. See also Daniel on Chancery Practice, 7th Edition, vol. I, Ch. II, Section XXI, pp. 133--139. The question of the right to sue of persons of unsound mind not so found by inquisition was recently discussed by the Court of Appeal in England in Didi Shein v. London and Westminster Bank (1900) 2 Ch. 15, in which it was held that an action brought in a proper case in the name of a lunatic not so found, by his next friend for the recovery of his property may, in the absence of any lunacy proceedings, be maintained without the sanction of the Court in Lunacy. Lord Lindley, M. E. in delivering the judgment of the Court observed that in Chancery it has long been the settled practice to institute suits in the names of lunatics not so found by inquisition by a next friend. No doubt when a suit is brought on behalf of a person alleged to be a lunatic by a next friend, the Court may investigate whether the plaintiff is a lunatic and whether the person, who desires to act as nest friend, is a fit and proper person, and the Court may also, perhaps as a check on reckless or improper proceedings, direct an enquiry as to the propriety of the suit or to the conduct thereof. I must hold, therefore, dissenting from the contrary view taken in the case of Subhaya v. Bathaya (1883) I.L.R. 6 Mad. 380, which is founded on the theory that the Code of Civil Procedure is exhaustive, that it is competent for the Court to allow a lunatic to sue through his next friend, and to appoint a guardian ad litem, where the lunatic is a defendant, although in either case the lunatic may not have been so adjudged, under the Lunacy Act. The view I take is in accordance with that taken by the Allahabad High Court in Nabbu Elian v. Sita (1897) I.L.R. 20 All. 2 by the Bombay High Court in Venkatramana Rambhat v. Tinappa Devappa (1891) I.L.R. 16. Bom. 132 Kirparam Jhumekram Mudia v. Mdia Dayalji Jhumekram (1894) I.L.R. 19 Bom. 135 and Pransukhram Dinanth v. Bai Ladkor (1899) I.L.R. 23. Bom. 653, and by the Madras High Court in Kadala Reddi v. Narisi (1901) I.L.R. 24 Mad. 504. The first point taken on behalf of the appellants consequently fails and must be overruled.
11. As regards the second point taken on behalf of the appellants, it has been found by the Courts below that (he original tenants have abandoned the holding and have left the village. It is suggested, however, that the defendants are not trespassers as they are mortgagees in possession. This contention is clearly opposed to the case of Krishna Chandra Butt Chowdhuri v. Khiran Bajania (1903) 3 C.L.J. 222 : 10 C.W.N. 499, and there can be no doubt that, when the tenant of a non-iransferable holding executes a usufructuary mortgage of it, places the mortgagee in possession, abandons the holding and leaves the village, the landlord is entitled to treat the mortgagee as a trespasser and to ask for his ejectment. The second point taken on behalf of the appellants consequently fails.
12. The result, therefore, is that the decree made by the Court of appeal below must be affirmed and this appeal dismissed with costs.