(1) The appellant, the original plaintiff Rani Annapurnabai is widow of Raje Bahadur Raghuji Rao Bhonsle. In this appeal, she has challenged the dismissal of her suit by the Civil Judge, Senior Division, Nagpur on the ground that the suit was filed in villation of the provisions of Sections 27 and 30 of the Central Provinces Court of Wards Act, i.e. Act No. XXIV of 1899 (hereinafter referred to as the Court of Wards Act).
(2) Certain facts leading to this litigation may be stated to appreciate the rival contentions between the parties.
(3) In paragraph 1 of the plaint (Ex.1), the appellant has given a genealogical table of the family of the late Shri Raje Bahadur Raghuji Rao Bhonsle. The genealogy is as follows:-
Rani Gojara Bai = Raje Bahadur Raghuji Rao = Rani Annapurna Bai (Plaintiff)
Raje Bahadur Fattesingh Rao Kunwar Jaisingh Rao
(Defendant No.2) (Defendant No. 5)
Kunwar Ajitsingh Kunwar Laxmanrao
(Defendant No.3) (Defendant No.4)
(4) The late Shri Raje Bahadur Raghuji Rao belonged to the Bhonsla family of ex-rulers of Nagpur and is governed by Mitakshara School of Hindu Law in respect of their point family property. The late Shri Raje Bahadur Raghuji Rao applied under Section 6 of the Court of Wards Act that his whole estate should be taken over by the Court of Wards. The then Government of the Central Provinces and Berar indicated that his property would be taken under management on certain conditions. The Raje Bahadur Raghuji Rao then wrote a letter on 11th of January 1926 to the Commissioner, Nagpur Division,. agreeing to the government proposal. Thereafter, on 12th of February 1925, the Governor in Council for the State Government issued a notification notifying that the Court of Wards will assume superintendence of property belonging to the Raje bahadur Raghuji Rao Bhonsle, Kunwar Fattesingh Rao Bhonsle and Kunwar Jaisingh Rao Bhonsle. Since then the property of the late Shri Raje Bahadur Raghuji Rao has been under the superintendence of the Court of Wards.
(5) The extent of the property as shown in various schedules filed with the plaint appears to be considerable. On 23rd of November 1953, the late Shri Raje Bahadur Raghuji Rao purported to effect partition of the immoveable property of the joint family excluding immoveable property in the old Bombay State. This action seems to have been taken, as alleged in the plaint, in view of a notice given by Kunwar Jaisingh Rao in 1952 expressing his unequivocal intention to disrupt the joint family demanding partition and separate possession of his share in the estate. According to the averments in paragraph 5 of the plaint, all parties agreed to appoint Raje Pratapsingh Rao Bhonsle as Arbitrator for making division of their joint family property, but that arbitration did not come through due to some developments. Plaint also alleges that some documdent was executed by late Shri Raje Bahadur Raghuji Rao on 23-11-1953, though it is styled as a will, but, in fact, was a partition.
(6) The plaint gives a long history of the family after the conquest of the Bhonsla Rule by the British with which we are not immediately concerned.
(7) Late Shri Bahadur Raghuji Rao died on 20th of May 1958 at Nagpur. Thereafter, the appellant served the defendants including the Court of Wards, Nagpur with a notice under section 26 of the Court of Wards Act, on or about 14-5-1959. Thereafter the present suit was filed by the appellant in forma pauperis on 18-9-1959. The application to sue as a pauper seems to have been hotly contested but ultimately, the trial Court granted permission to the appellant to sue as a pauper and the application has been registered as Civil Suit No. 16 of 1961.
(8) On 9-12-1959, the Under-Secretary to the Government of Bombay, Revenue Department, sent a communication to the Commissioner, Nagpur Division. In this communication, the Government directed that under proviso to section 34 (1) of 'the Civil Procedure code' Court of Wards Act, Government was pleased to accord sanction to the continuance of the superintendence of the Court of Wards, Nagpur over the estate of the late Shri Raje Raghuji Rao Bhonsle after his demise on 20th of May 1958. He further directed that the estate should continue under the superintendence of the Court of Wards, Nagpur until the encumbrance over the estate is finally cleared, and it was added, "It is therefore not necessary to declare Shrimati Annapurnabai as a Govt. Ward." There was an error in making a reference to the Civil Procedure Code,' 'in this communication which was later on corrected as having a reference to section 34 (1) of "the Court of Wards Act, 1889."
(9) The plaintiff claims partition and separate possession of her property; ifrstly, on the basis of the partition already effected by late Shri Raje Bahadur Raghuji Rao in 1953 or, in the alternative, on the basis of her claim as the widow of Raje Raghuji Rao in his joint family property.
(10) To this suit, appellant had impleaded, firstly, the Court of Wards through the Collector Nagpur, then (2) Raje Bahadur Fattesingh Rao, (3) Kunwar Ajitsingh son of Raje bahadur Fattesingh Rao, (4) Kunwar Laxmanrao son of Raje Bahadur Fattesingh Rao and (5) Jaisingh Rao, as five defendants. In the original cause title to the plaint, defendant no. 2 Fattesingh Rao or defendant No. 5 Jaisingh Rao were not shown an being sued through their guardian Court of Wards, but subsequently, an application has been made for amendment of the plaint by showing these two defendants and also defendants nos. 3 and 4, if necessary, as being sued through the Court of Wards as their guardian as required by section 27 of the Court of Wards Act. It is an admitted position that the learned Judge of the trial Court has not passed any order on this application till the suit was disposed of as not tenable.
(11) On issue of summonses to the parties the Court of Wards, as defendant No. 1, filed what is styled as "application for striking the plaint off the file." Defendants Nos. 2 to 4 have filed a written statement, but not on merits of the claim. The gist of the defence raised at that stage by defendant Nos. 1 to 4 is that the suit is not tenable at the instance of the plaintiff-appellant, because the plaintiff is a "Government Ward" within the meaning of section 2 (a) of the Court of Wards Act. Then it is complained that the appellant failed to comply with the provisions of sections 27, 39 and 30 of the Court of Wards Act, and the failure is fatal to this suit. According to the defence, the estate of the late Shri Raje Bahadur Fattesinghrao and Jaisingh Rao is under the management of the Court of Wards and after the death of Raje Raghuji Rao, Superintendence and management of the estate is continued with the Court of Wards. On account of the continuance of superintendence over the entire estate, the plaintiff-appellant is also a Government ward. As defendants Nos. 2 to 5, who areGovernment wards, have been sued without being represented by statutory guardian, viz. the Court of Wards, the suit is not tenable. As the plaintiff has not obtained any authorisation in writing from the Court of Wards to bring this suit, the suit is untenable on that account also. Ultimately, therefore, the Court of Wards prayed that the plaint be taken off the file and they may be given their costs. In addition to the procisions of sections 27 and 30, defendants Nos. 2 to 4 also raised the bar under section 29 of the Court of Wards Act to the maintainability of the suit.
(12) The appellant filed a reply to these objections raised on behalf of the defendants in writing on 22-8-1961. The appellant denied that she is a Government ward because there was no notification by the State Government declaring the appellant as the person disqualified to manage her property or ordering the Court of Wards to assume superintendence of her property. As regards the non-mention of the Court of Wards as guardian-ad-litem for defendant nos. 2 to 5, the appellant admitted that the omission was through oversight and that she had made an application for permission to amend the plaint. The appellant denied that it was necessary for her to obtain authorization from the Court of Wards, because, according to the appellant, section 30 was not applicable to the appellant at all. The appellant specifically denied that, merely by reason of continuance of superintendence or management over the property with the Court of Wards, the plaintiff became a Government ward. The appellant asserted her right to institute suits without Courts of Wards being a next friend and without any order or authority from the Court of Wards to bring the suit.
(13) As issues raised in contest till then are based on several provisions of the Court opf Wards Act, the learned Judge proceeded to determine the competency of the suit on the basis of rival contentions. The learned Judge came to the conclusion that the plaintiff had no cause of action to the suit and the suit, as filed, violated the provisions of sections 27 and 30 of the Court of Wards Act, because the suit was filed without the previous sanction of the Court of Wards and by a ward, without next friend. The suit, as framed, was, therefore, held to be not maintainable and on this ground the suit was dismissed. In para 4 of the judgment, the learned Judge has given the reasons for hsi conclusion thus:-
"The expression "Government Ward" has been defined in the C. P. Court of Wards Act as any person of whose property of whose person or property, the Court of Wards may, for the time being have the superintendence under this Act. It is conceded by Rani Annapurnabai that the property of which she claims a share by partition is under the superintendence of the Court of Wards. This property as stated earlier belonged to her husband Raje Bahadur Raghuji Rao. Even during his lifetime the Court of Wards had taken over the Superintendence of the property of his family. The Government sanctioned the continuance of the superintendence of the Sourt of Wards over the estate of Raje Bahadur Raghuji Rao Bhonsle after his demise on 20th Mary 1958 under section 34 (1) proviso of the C. P. Court of Wards Act. The Government directed that the estate should continue to be under the superintendence of the Court of Wards, Nagpur until the encumbrance over the estate is fully cleared. It is pointed out that in the memorandum under which the superintendence of the Court of Wards was continued it is stated that it is not necessary to declare Rani Annapurnabai as a Government Ward. This, however does not necessarily show that Rani Annapurnabai is not a Government Ward within the meaning of the C. P. Courts of Wards Act, 1899. If under the law she is a Government Ward then no better purpose will be served by again declaring by the Government that she is a Government Ward. It is in this sense that it was stated in the memorandum dated 9th December 1958 that it is not necessary to declare Rani Annapurnabai as a Government Ward. Her property is under the superintendence of the Court of Wards and, therefore, she is a Government Ward within the meaning of the C. P. Court of Wards Act, 1899. . . . . . . ."
(14) The learned counsel for the appellant has challenged the view taken by the trial Court regarding the applicability of the several provisions of the Court of Wards Act to sustain the dismissal of her action. According to the appellant, she does not become a Government Ward merely by reason of the fact that the Court of Wards has been permitted to retain and continue the superintendence over the property of her late husband Shri Raje Bahadur Raghuji Rao Bhonsle. The appellant claims an independent right of her own in the property, which was either joint family property or property of persons who were once members of the joint family and that her right to claim her share in that property is in no way affected by the fact that the family property for the time being continues under the superintendence of the Court of Wards. If the appellant is not a Government Ward, there is no question of her being required to seek an authorisation by order in writing from the Court of Wards to enable her to file a suit; nor would any question of her suing by showing the Court of Wards, as the next friend or guardian-ad-litem, arise if the appellant cannot be treated as a Government Ward.
(15) The learned counsel appearing for the contesting defendants, i.e. defendants Nos. 1 to 4, have more or less, supproted the reasoning by which the trial court came to the conclusion that the suit was not maintainable . According to these respondents, the various provisions of the Court of Wards Act have to be taken into consideration in determining whether a person can be said to be a Government Ward. The Primary object, according to the respondents, for assuming superintendence over the estate of a person, is to save immovable property of that person if the property has become unduly encumbered or if that person volunteers to place the property under the management of the Court of Wards under section 6 of the Court of Wards Act.
(16) Section 2(c) of the Court of Wards Act which is a definition section , gives the definition of "landholder". So, unless a person is a land-holder, according to the respondents. superintendence of his property cannot be taken over by the Court of Wards. In the definition of "land-holder" are included a malguzar as defined in the C. P. Land-revene Act, and the Zamindar of any Zamindari in a Scheduled district including a muafidar, Jagirdar, ubaridar or other assignee of land-revenue, or any person belonging to a class which the State Government has declared to belong to a class of members or landholders for the purposes of this Act. There is no dispute that the late Shri Raje Bahadur Raghuji Rao Bhonsle was a alnd-holder. within the meeting of this definition. He had himself volunteered to place his property under the superintendence of the Court of Wards under sectiuon 6, and it is in exercice of powers under that section, read with section 9, that the State Government accepted the proposal of the Court of Wards as far back as 1925. Now, S. 34(1) of the Court of Wards Act makes a revision or withdrawal of superintendence or continuance of superintendence of the management of the Court of Wards under certain circumstances, Relying upon the first proviso to Section 34(1) of the Act, the learned counsel for the Court of Wards urged that on the death of late Shri Raje Raghuji Rao who was himself a Government Ward, the Court of Wards decided, of course, with the previous sanction of the State Government, to retain his property under its superintendence, until the debts and liabilities are discharged. In this property the appellant claims a share as an heir. The appellant, therefore, cannot dispute the argument runs that the appellant is a person whose property is, for the time being, under the superintendence of the Court of Wards under the Court of Wards Act. The further argument is that the moment it is shown that the property of a person is under the management of the Court of Wards, that person becomes a Government Ward. For this proposition, the respondents heavily lean on the definition of the expression "Government Ward" as given in section 2 (a) of the Act. If this contention of the respondents is correct, then there is no doubt that both under section 27 and section 30 of the Act, the plaintiff having failed to sue through the statutory guardian, viz. the Court of Wards, and also having failed to obtaine authorization in writing by an order of the Court of Wards permitting the appellant to bring a suit, the suit itself and the frame of the suit would also become incompetent.
(17) Before we proceed to consider the rival contentions of the parties, it will be useful to analyse the scheme of the Court of Wards Act which is under interpretation in this case. The Court of Wards Act is a consolidating and amending law relating to the Court of Wards. Section 2 of the Act gives certain definition of the expression used in the Act and that section is as follows:-
"2. In this Act, unless there is anything repugnant in the subject or context,-
(a) the expression "Government Ward" means any person of whose property, or of whose person and property, the Courts of Wards may, for the time being have the superintendence under this Act;
(b) "land" includes the rights of a land-holder in respect of the land of which he is the malguzar or zamindar or muafidar, jagirdar, Ubaridar or other assignee of land revenue. or in which he is interested; and
(c) "land-holder" means a malguzar as defined in the Central Provinces Land-revenue Act, 1881, and the Zamindar of any Zamindari in a Scheduled district and includes a muafidar, jagirdar, ubaridar or other assignee of land-revenue, and any person not hereinbefore specified who is interested in land and belongs to a class of which the State Governmenthas declared the members to be land-holders for the purposes of this Act;
Provided that a person who is a Government ward immediately before the vesting of his proprietary rights in the State under section 3 of the Madhya Pradesh Abolition of Porprietary Rights (Estates, mahals, Alienated Lands) Act, 1950, shall not merely for that reason cease to be a land-holder for the purposes of this Act."
The Commissioner is constituted the Court of Wards for his area (section 3), but now it is the Collector of the district. Then follows sections 4 and 5. These sections are as follows:-
"4. The Court of Wards may, with the previous sanction of the State Government, assume the superintendence of the property of any land-holder owning land within the local limits of its jurisdiction who is disqualified to manage his property."
"5. (1) The following persons shall, for the purposes of section 4, be deemed to be disqualified to manage their own property, namely;-
(b) persons adjudged by a competent Civil Court to be of unsound mind and incapable of managing their affairs;
(c) persons not being zamindars of zamindaris in a Scheduled district, declared by the District Judge on the application of the Deputy Commissioner of the district in which nay part of the property of such persons is situated and after such judicial enquiry as he thinks necessary, to be incapable of managing or unfitted to manage their own property owing to their having entered upon a course of wasteful extravagance likely to dissipate their property;
(d) persons declared by the State Government to be incapable of managing their property owing to -
(i) any physical or mental defect or infirmity;
(ii) their having been convicted non-bailable offence and being unfitted by vice or bad character;
(iii) there being females; and
(e) zamindars of zamindaris in a Scheduled district declared by the State Government to be incapable of managing or unfitted to manage their own property owing to-
(i) their having entered upon a course of wasteful extravagance; or
(ii) their failure without sufficient reason to discharge the debts and liabilities due by them;
Provided that no such declaration shall be made unless the State Government is satisfied;
(a) that the aggregate annual interest payable at the contractual rate on the debts and liabilities due by the zamindar exceeds one-third of the average annual profits of the preceding five years; and
(b) that such extravagance or such failure to discharge the said debts and liabilities is likely to lead to the dissipation of property.
(2) No declaration under clause (e) of sub-section (1) shall be made until the zamindar has been furnished with a detailed statement of the grounds on which it is proposed to disqualify him and has had an opportunity of showing cause why such declaration should not be made.
(3) No appeal shall lie against any declaration made by the District Judge under Clause (c) of sub-section (1).
(4) No suit shall be brought in any Civil Court in respect of any declaration made by the State Government under Clause (d) or Clause (e) of sub-section (1)."
It will be seen that the power to assume superintendence of the property of any land-holder vests in the Court of Wards compulsorily only in those cases where the land-holder is disqualified to manage his property. As to who shall be considered persons deemed to be disqualified to manage their own property is elaborately provided in section5. Thus, minors or persons adjudged by Court to be of unsound mind a incapable of managing their affaris, or certain clauses of Zamindars who are judicially declared to be incapable of managing or unfir to manage their own property owing to the fact that they entered upon a course of wasteful extravagance likely to dissipate their property, or persons declared by the State Government to be incapable of managing thier property owing to physical or mental defect or infirmity or because of their having been untirred by vice or bad character, are included in the class of persons liable to be considered disqualified to manage their property. A few morecategories are also given in respect of Zamindars of Zamindaris in scheduled districts with which we are not concerned immediately. A declaration that a Zamindar or a person is unfit or unqualified to manage his own property canot be made unless the person concerned is given an opportunity to show cause. But there is a general right of appeal provided under section 37 from orders passed under this Act by the Deputy Commissioner or the Commissioner to the State Government.
(18) Section 6 enables a land-holder to apply to the State Government to place his property under the superintendence of the Court of Wards and if the State Government thinks it expedient in the public interest, may order the Court of Wards to assume the superintendence over such property. Apart from these specific cases where superintendence over the property of persons under disability or disqualification can be taken, provision is made for managing the property for temporary period if a land-holder dies and there is reason to believe that the heirs of the land holders are such as could be adjudged disqualified under section. When the Court of Wards assumes the superintendence of the property of any person, the fact of such assumption and the date on which it was sanctioned by the State Government have to be notified in the local official Gazatte. The consequence of such assumption is that the whole of the property, moveable and immoveable of such person and whether the existence of such property is knwon to the said Court or not, ipso facto comes under the superintendence of the Court of Wards by deeming provisions. Similarly,. any property which the Government ward may inherit subsequent to the date of sanction is also deemed to be under the superintendence of the Court of Wards. In other words, the Court of Wards is made the custodian of all the moveable and immoveable property of the Government Ward so long as is superintendence continues with the Court of Wards.
(19) The object of the legislature being primarily to preserve the property and to pay off the debts standing against the estate by frugal and proper management of the property, there are certain safeguards provided for the smooth administration of the property by the Court of Wards. A suit to contest the suthority of the Court of Wards in respect of the property is expressly barred. In other words, Civil Court can not adjudicate on the issue whether a person is or is not a land-holder or minor. As soon as superintendence is taken over by the Court of Wards , the law requires the Court of Wards to call in claims against the estate of the Government Ward. If the claims are not submitted within the time and according to the provisions the Act, the claimants run the risk of being discharged. The claimants are made to furnish a full account and particulars of documents. If any action is pending against the estate of the ward, then the Court of Wards is empowered to apply to the Civil Court within a year after the issue of notification under Section 10, for stay of such proceeding. A certain immunity from the monies in the hands of the Court of Wards pertaining to the estate being attachable or otherwise proceded against is given so that certain allowances as enumerated in Section 14-A may be paid without diminution. On receipt of claims against the estate, the Court of Wards is empowered to adjudicate the claims (Section 15) and thereafter a report is to be made to the State Government regarding debts and liabilities of the Government ward so that the Government may take a decision whether the superintendence shall continue or relinquish (Section 16). The Court of Wards may appoint a manager for a particular estae and the duties and the obligations and liabilities of managers and servants of the Court of Wards have been provided for in Sections 18 and 19. Uder Sectiion 21, the Court of Wards is empowered to do all thigs requisite for the proper care and management of the property of which it assumes jurisdiction as an owner of the property, whether for the care or management of the property. In addition to the management of property some times, the Court of Wards is also empowered to be the custodian of the person of the Government ward and, for that purpose it is empowered to do all things which may lawfully be done by the guardian of such Government ward. For this purpose, necessary provision for the education of the ward and provision for his expenses to be determined and made by the Court of Wards, are made . The power of superintendence for management of the property includes the power to deal with immoveable property by way of mortgage, sale exchange etc., subject to the Government directions.
(20) Then follow sections 26 and 30 which have come in for interpretation in this appeal and these are as follows:-
"26. No suit relating to the person of property of any Government ward shall be brought in any Civil Court until the expiration of two months after notice in writing, stating the name and place of abode of the intending plaintiff, the cause of action and the relief claimed, has been delivered to, or left at the office of, the Court of Wards, and the plaint shall contain a statement that such notice has been so delivered or left;
Provided that notice under this section shall not be required in the case of any suit the period of limitation for which will expire within three months from the date of a notification issuced under section 10, sub-section (1).
(27) In every suit brought by or against aGovernment Ward, the manager of the Ward's property or, if there is no manager, the Court of Wards having the superintendence of the Ward's property shall be named as the next friend or guardian for the suit, as the case may be.
(28) If, in any suit brought by or against a Government ward, any Civil Court decrees any costs against the Government wards next friend or guardian for the suit, the Court of Wards shall cause the cost to be paid out of any property of the Government ward which may, for the time being, be in its hands.
(29) Every persons which may be issued out of any Civil or Revenue Court against any Government ward shall be served on the Government ward's next friend or guardian for the suit.
(30) No suit shall be brought, and no appeal in any suit shall be preferred, on behalf of any Government ward unless it is authorized by an order in writing of the Court of Wards: Provided as follows;-
(1) a manager may authorise a plaint to be filed in order to prevent a suit from being barred by the law of limitation, but the suit shall not aferwards be proceeded with except under the sanction of the Court of Wards.
(2) a suit for arrears of rent may be brought on behalf of a Government Ward, if authorized by an order of the manager of the property on which the rent is due."
(21) Section 31 is also important, Inasmuch as the disabilites of a Government ward are concerned, they are carefully incorporated in this section. Under this section-
(i) a Government ward is incompetent to transfer or create any charge on, or interest in, his property or any part thereof;
(ii) he is incompetent to enter any contract which may involve him in pecuniary liability;
(iii) his property is not liable under Section 68 of the Indian Contract Act, 1872;
(iv) no suit shall be brought in any Civil Court to charge any person upon any promise made after he has ceased to be a Government ward to pay any debt or discharge any liability under Section 68 of the Indian Contract Act;
and (v) the Government ward cannot ratify any contract made during the period as Government ward after he has ceased to be a ward, whether it is or is not for consideration.
The Government Ward is free to enter into a contract of marriage but again, not a contract, which will involve any pecuniary liability. Under Section 32 no Government ward can make an adoption, unless a permissiion in writing is given to the ward itself, without the consent of the State Government obtained previously or subsequently to the adoption.
(22) Under Section 33, provision is made for the consequences of death of a Government ward, and the succession to his property opens. In such a case, the Court of Wards has either of the three options; (a) it may direct that the property or any part be made over to any person claiming property with the previous sanction of the State Government; or (b) the Court of Wards may retain the superintendence of the property until one of the claimants has established his claim to the same in a competent Civil Court ; or (c) the Court of Wards itself may institute a suit of inter pleader against all the claimants.
(23) Then follows Section 34 which is a sheet-anchor of the contesting respondents.
That section is as follows.-
"34 (1) The Court of Wards may, with the sanction of the State Government, at any time withdraw its superintendence from the person or property, or both, of a Government ward, and shall withdraw its superintendence as soon as,-
(a) in the case of a person disqualified under Clause (a) of Section 5, sub-section (1), he attains his majority;
(b) in the case of a person disqualified under Clause (b) of the same, he ceases to be of unsound mind and incapable of managing his affairs;
(c) in the case of a person disqualified under sub-clause (i) of Clause (a) of the same, his physical or mental defect or infirmity is removed or ceases;
Provided as follows;-
(i) Whenever a Government ward dies or ceases to be disqualified and his property is still encumbered with debts and liabilities, the Court of Wards may, with the previous sanction of the State Government, either release such property or retain it under its superintendence until such debts and liabilities have been discharged; and ;
(ii) if one or more of the proprietors of a property remain disqualified, although another or others may have ceased to be disqualified, the Court of Wards may, with the previous sanction of the State Government, retain the whole of the property under its superintendence paying any proprietor who has ceased to be disqualified, the surplus income accruing from his share of the estate;
(2) Where any question arises as to whether the superintendence of the Court of Wards should be withdrawn from any person or property, or both, under Clause (a), or from any property under Clause (c), of sub-section (1), the decision of the State Government thereon shall be final, and no suit shall be brought in any Civil Court in respect of such decision".
(24) When the Court of Wards withdraws its superintendence from any person or property under the Court of Wards Act, the fact of such withdrawal has again to be notified in the Official Gazette (under Section 36), just as the fact of assumption of superintendence is also required to be notified in the Gazetee. Section 39 bars a suit to be brought against my action done in exercise of discretion by an authority on whom discretion is conferred by the Act.
(25) It will thus be seen that a complete Code is provided for the powers, its obligations, and disabilities of both, the Court of Wards as well as the Government Ward. What we have to consider is whether on the basis of interpretation sought by the contesting respondents, the view taken by the learned Judge of the trial Court that the appellant is a Government ward within the meaning of the Court of Wards Act can be upheld. After hearing lengthy arguments on either side, we have come to the conclusion that the contention is not substainable.
(26) As we have pointed out already, primarily, whenever superintendence of the estate of a person is assumed or is to be assumed without the consent or concurrence of that person, law requires as a condition precedent that such person must be disqualified to manage his property. That is specifically demanded of Section 4 read with Section 5 which described persons who should be considered disqualified to manage their own property. It is true that under Section 6 a person is enabled to volunteer to place his estate under the management or superintendence of the Court of Wards; but there the voluntary nature of the action obviates any consideration of the owner being disqualified to manage his own property. The contention of the contesting respondents is that by reason of the fact that the property in which the appellant claims a share or interest is retained under the superintendence of the Court of Wards by virtue of the power granted to it with the sanction of the State Government under the first proviso to Section 34 (1) of the Act, the appellant must be considered to be a Government ward. Here again, the respondents rely solely on the definition of the expression "Government ward" in Section 2 opens, as it usually does in most of the statutes, with this; "unless there is any thing repugnant in the subject or context, -". The appellant's contention is that she is not a Government ward within the meaning of this Act because so to hold would lead to absurdities and repugnancies if the effect of such contentiion were to be applied to other provisions of the Act. If it is therefore shown, as the appellant, in our opinion, has successfully done, that the expression "Government ward", is not intended to be universally applied, but only with reference to such a context, it is clear that the appellant cannot be said to be a Government ward.
(27) We have reproduced above the consequences of a person being a Government ward, whose property is under the superintendence of the Court of Wards. The right of dealing with this property or to make any contract involving a pecuniary liability is altogehter taken away in respect of such a Government ward. Similarly, no suit can be filed relating to the person or property of a Government ward until a notice is given in writing to the Court of Wards and, above all, the ward himself cannot bring a suit or any action unless there is an order in writing of the Court of Wards authorising such action to be brought. In other words, all the rights inherent in ownership of property or to approach Courts of justice in respect of his rights in property or personal rights both to the Government ward as well as to any person having such a right against the Government ward, are severely restricted and, in some cases, prohibited. Before reaching a conclusion which will seriously and incomprehensibly abridge the rights of a person which he otherwise has a citizen, one must be satisfied that the Legislature intended that merely by reason of the fact that the property in which a person claims interest comes to be managed by the Court of Wards and by that fact alone such a person automatically becomes a Government ward.
(28) Now, it will be seen that a person like the appellant in this case has become the owner of the property on account of an event of which she has no control, viz., the death of her husbadn Shri Raje Bahadur Raghuji Rao. It is not disputed that a person who becomes an heir or successor to the interest or property of a Government Ward after his death, may himself be the owner of the independent property of his own and inrespect of which all his rights as a owner are unfettered or unabridged; and yet, if the arguments of the contesting respondents were to be accepted, by the mere fact that late Shri Raje Bahadur Raghuji Rao's property is decided to be continued under the superintendence of the Court of Wards and because the appellant Annapurnabai is an heir to part of such property, Annapurnabai becomes subjected to all the disabilities under Secs. 26, 27, 30 or 31 of the Court of Wards Act. We put it to the learned counsel appearing for the respondents whether such would not be the result if the interpretation urged on behalf of the respondents were to be accepted in determining whether a person becomes a Government Ward merely because a part of his property comes to be managed under the superintendence of the Court of Wards, and the answer had to be in the affirmative to reach the logical conclusion of the argument. We find it a little difficult to hold that the Legislature intended in casting the definition of the expression "Government Ward" in Section 2(a) where such a result should follow in respect of pre-existing rights and obligations of a owner of property merely because such person, at some point of time, becomes entitled as an heir or successor to the property of an ex-Government ward. It is at this stage therefore, that it is necessary to see that the legislaure has not merely framed a definition of the expression "Government ward" but has restricted the use of that dictionary to sections where the use of that expression. in that sense, in that meaning, will not be repugnant in the subject or context.
(29) There was yet another difficulty pointed out during arguments. If the cotention of the respondents wre to have any validity there is no obligation on the Court of Wards when it purports to exercise its powers under the first proviso to section 34 (1) of the Act to make known its decision to retain the superintendence of the estate of a Government ward on his death by a notification in the Gazetee. However, the mere fact that a decision is taken by the Court of Wards and the Government in the privacy of their chambers to retain superintendence of the estate of a Government ward on his death, because the estate is encumbered, has starting consequences on the rights and obligations of innocent persons like the heirs to the property without any means at their command to avoid these consequences. We do not see how anybody who wants to sue a person like the appellant after the death of Shri Raje Bahadur Raghuji Rao either for her personal debts or any other liability could at all have any means of knowing that such person has become the owner of the property of a Government ward on his death and that the Court of Wards has decided to retain its superintendence over the property because of continuance of debts.
(30) Section 33 is one of two sections which make provision consequent to the death of a Government ward. Under that section, the Court of Wards can follow either of the three courses; When there are claimants to the estate of the Government ward by way of succession or inheritance, it may, if satisfied that a claimant has a right to the property, restore possession of the property to the claimant, wholly or in part, as he case may be, or it may continue superintendence till the claimant establishes his claim in the Civl Court , or it may itself institute an interpleader suit. Right of action which is expressly given to a claimant in the property under section 33 is not made subject to the provisons of section 30. The learned counsel wants to read the inhibition of Section 30 by calling in aid the definition of the expression "Government ward" and wants it to be held that as such a person becomes a Government ward or must be deemed to become a Government ward, authorisation of the Court of Wards as provided in section 30 becomes necessary. We do not think this artificial construction of S. 33 or reading of any limitation on the right of action is intended by the legislature.
(31) A somewhat anomalous position is also obvious if the contention of the respondents vis-a-vis Sections 27 and 30 of the Act is to be accepted. Under section 27 no suit can be brought by a Government ward except through the statutory guardians, viz. the Court of Wards. As an illustration of the anomaly, the present dispute itself may be taken. If the appellant is to be considered a Government Ward, the suit will have to be brought by the Court of Wards acting for the appellant. The property being in possession of the Court of Wards itself, it will have to be impleaded as the defendant and some of the other defendants who are admittedly the Government wards will have to be represented again by the Court of Wards as their Guardian-ad-litem. Thus, in such a suit the Court of Wards will array as a plaintiff as well as contesting defendants, a position which is so clearly anomalous and untenable that iot could not been intended by the legislature. We put it to the learned counsel appearing for the respondents whether there is any solution to this conundrum and none was suggested at the Bar; all this because the respondents say, the appellant becomes the Government ward merely by reason of the retention of superintendence over the property of late Shri Raje Bahadur Raghuji Rao to which now the appellant lays a claim as an heir.
(32) Similarly, if a permission or authorization of the Court of Wards is considered necessary for purposes of a suit contemplated by section 33 by a claimant to the property, the same anomalous position will arise. We are satisfied that the legislature coult not have intended that rights of owners of property or claimants to the property of a decreased Government ward should be put in jeopardy by requirement of an authorization before in action at law can be brought.
(33) We have therefore, come to the conclusion that the finding of the learned Judge that the plaintiffs suit was not tenable because of violation of the provisions of section 27 or section 30 cannot be upheld and has to be set aside. The plaintiff who is an heir to the property left by late Shri Raje Bahadur Raghuji Rao who was himself an ex-Government ward. is not fettered by any provisions of the Court of Wards Act and plaintiff's suit could not have been thrown out on that ground.
(34) We may make a note here that the fifth respondent, i.e. Kunwar Jaisingh Rao has not contested the claim of the plaitiff. On the other hand, it will be seen that he is himself an aggrieved person and has been d emanding partition of the property for quie some time.
(35) The learned counsel for the respondents invited our attention to a decision of the Privy Council reported in Gulabsingh v. Raja Gokuldas, (1913) 9 Nag LR 117. That was a case of an application being made under S. 6 of the C. P. Government Wards Act, 1885 by managing members of a joint Hindu family on which superintendence of the entire joint family property was assumed and it was held that if the manager of the joint Hindu family invited management under the superintendence of the Court of Wards, a member of such a family could not resist the action of the Court of Wards on the ground that his interest in the family property was not under the superintendence of the Court of Wards. Once it is held that it is the whole family which placed its property under the management of the Court of Wards, the conclusion reached can be easily explained. There is no plea here and we do not see such a plea could be raised now that when the late Shri Raje Bahadur Raghuji Rao made an application under Section 6 of the Court of Wards Act he made it on behalf of the family. The application seems to be made by late Shri Raje Bahadur Reghuji Rao and the names of three persons, who were claimants, have been mentioned in the order and it is their property which was placed under the superintendence of the Court of Wards. We, therefore, do not see how this decision is of any assistance to the respondents.
(36) On behalf of the appellant reference was made to a very early decision of the Nagpur Judicial Commissioner's Court reported in Thakur Himachal Singh v. Kuar Pratap Singh Lodhi, (1905) 1 Nag LR 97. It would appear from the facts reported in the judgment that the head of the family was declared to be disqualified and, in consequence of such disqualification whole of the property was taken under the management of the Court of Wards. An objectiion was raised on behalf of some members of the family that they had not become Government wards merely because the family property was placed under the management of the Court of Wards. This seems to have been accepted. We may refer to the observations made in this context at page 99 of the report:-
".......By Section 3 of the Act a Government Ward was defined to mean 'any person of whose property or of whose person and property the Court of Wards may, for the time being, have the superintendence under this Act.' But the Court of Wards could only assume the superintendence of the property of a land-holder who was disqualified to manage his own property; this disqualification which formed a condition precedent to any assumptiion of superintendence under the Act was a personal disqualification and the Court of Wards had no authority to assume the superintendence of the property of other members of the family who were not disqualified. In practice no doubt such other members have frequently acquiesced in their shares of the estate being managed by the Court of Wards, but they have not, by virtue of such acquiescence, became Government wards, or subject to the disabilities affecting such wards."
As the facts disclose, the assumption of superintendence followed on the declaration of disqualification of a member of the family. But the principle seems to be that the mere fact that the property which is under superintendence of the Court of Wards is shared by many persons does not ipso facto make all such persons Government wards merely by reason of such assumption of superintendence.
(37) Thus, the rsult is that the appeal is allowed, the judgment and decree of the trial Court are set aside and the trial Court is directed to proceed with the suit according to law. The appellant will be entitled to costs from respondents Nos. 1 to 4.
(38) Appeal allowed.