1. The plaintiff, opposite party, brought a suit for recovery of a certain sum of money alleged to be due from the deceased husband of the petitioner. It appears that the petitioner was declared a disqualified proprietor under Section 6(a) of Act IX of 1879 (B.C.), which relates to females declared by the Court incompetent to manage their own property, and her estate which she inherited from her husband, is in the hands of the Court of Wards. She was not, however, described in the suit as a Ward of the Court nor was she sued as represented by the manager of the Court of Wards as her guardian, as required by Section 51 of the Act. She objected to the frame of the suit on that ground, but her objection was overruled by the Small Cause Court Judge who held as follows: 'The contention of the defendant as to the frame of the suit, is not very fatal. There can be no difficulty to pass a decree against the assets of the deceased debtor. Whether his estate under the management of the Court of Wards, will be liable or not, will be matter for consideration in the Execution Department,' and accordingly passed a decree against her. We are of opinion that the suit as framed, is in contravention of the provisions of Section 51 of Act IX of 1879 and that she ought to have been described as a Ward of the Court and represented by the manager of the Court of Wards as her guardian. The opposite party in showing cause, has produced an affidavit, in which it is stated that there is one property belonging to the husband of the petitioner which was not taken charge of by the Court of Wards and of which the petitioner is in possession, and that under the circumstances, it was not necessary to sue her as a ward of the Court. We were referred to certain observations in the case of Krishna Pershad Singh v. Gosta Behari Kundu 5 C.L.J. 434, as Supporting that contention. It appears, however, that in that case the Court of Wards did not take charge of a portion of the estate which was sold in execution of a decree and the question was, whether the manager of the Court of Wards was entitled as a matter of right to act as guardian ad litem of the minor judgment-debtor in a litigation relating to the property which had been sold. It was held with reference to the provisions of Section 35 of the Act that the Court of Wards was not in charge of the property sold, because possession had not been taken of it and, therefore, it could not deal with the property under Section 5 of the Act, which authorises the Court to deal only with property which it took charge of, and that consequently, the provisions of Section 51 of the Act had no application to the case.
2. We are also referred to the observations of the Judicial Committee in the case of Dhanipal Das v. Raja Maneshar Baksh Singh 33 I.A. 118 : 10 C.W.N. 849 : 28 A. 570 : 6 M.L.J. 292 : 8 Bom. L.R. 491 : 9 O.C. 188 : 3 A.L.J. 495 : 1 M.L.T. 205 : 4 C.L.J. and of Mr. Justice Field in the case of Dhunput Singh v. Shoobhudra Kumari 8 C. 620 : 11 C.L.R. 285.. We are of opinion that both the cases are distinguishable from the present case.
3. In the first case, their Lordships were dealing with the provisions of Act XVII of 1876 (the Oudh Land and Revenue Act, 1876), and their Lordships held that the provisions of that Act were not intended to interfere with the personal status or rights of disqualified proprietors except as regards the management of their property unless they were idiots or lunatics and that although such disqualified proprietors might not without the sanction of the Court of Wards, create any charge upon their property, there was no prohibition in the act of the proprietors contracting debts or borrowing money. No question was raised as to how the Ward should be sued and their Lordships did not deal with that question. A disqualified proprietor was sued in that case upon a personal contract entered into by him and no question as to any portion of the estate not having been taken charge of by the Court of Wards, nor as to the manner in which a Ward should be sued in such a case, was either raised or decided in that case.
4. In the second case, it was held upon a construction of Regulation X of 1793 that a Ward of Court is not absolutely incapacitated from contracting but 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. It is true that the provisions of Section 51 were referred to and there is an observation by Mr. Justice Field that it is a provision of procedure; but they held that the provisions of that section could not affect any liability which might be incurred by a Ward in respect of any contract entered into by him or her and do not operate to remove or destroy the personal liability of such a person. So in both these cases, there was a personal contract entered into by the ward. In the present case on the other hand, there was no personal contract by the petitioner, nor was there any personal liability against her. The plaintiff sought to recover a certain sum of money alleged to be due from the husband of the petitioner and the suit did not relate to the property which has not been taken charge of by the Court of Wards. Had the suit been so framed and had the plaintiff sought for recovery of money to be realised from the particular property in the possession of the petitioner which has not been taken charge of by the Court of Wards, the case would have come within the principle of the decision in the case of Krishna Pershad Singh v. Gosta Behari Kundu 5 C.L.J. 434 cited above. As it is, the suit had no reference to the property which had been left out by the Court of Wards, and the decree was for money to be realised from the assets of the deceased debtor. That being so, Section 51 is applicable to the case and the suit as framed, is not maintainable. It appears that the property which was left in the possession of the petitioner has been taken charge of by the Court of Wards subsequent to the decree passed in the suit.
5. The Rule is made absolute and the decree of the Court below is set aside. We think however, that the plaintiff may be allowed to amend the plaint. We accordingly direct that the plaintiff, opposite party, be allowed to amend the plaint by describing the defendant in accordance with the provisions of Section 51 of Act IX of 1879; and the Court will try the suit after such amendment. The costs of this Rule will abide the result. We assess the hearing fee in this Court at one gold mohur.