9911796707
TMI Blog1959 (12) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 without issue, leaving the appellant his sole widow. After the death of Raja Harnam disputes arose between the respondent, who was then a minor and was represented by his certificated guardian, his mother Parbati Kuer, and the appellant, a reference to which has now to be made. The appellant's contentions appear to have been as follows : Raja Udit Narain left a will bequeathing certain villages of Ramnagar estate to Raja Harnam absolutely and the rest of it, as set out in a schedule to the will, to him for life and after him to Kanwar Sarnam for life and thereafter or failing the latter, to the respondent absolutely. The will declared that village Bichelka had been given to her for life as " runumal " or wedding present and that she would have a maintenance of ₹ 500, per month out of the estate. The schedule to the will did not mention five of the villages of Ramnagar estate with regard to which Raja Udit Narain died intestate and these thereupon devolved on Raja Harnam under the rule of primogeniture that applied to the estate. After Raja Udit Narain's death, Raja Harnam went into possession of the estate and executed a will leaving all the properties ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of Wards Act, hereinafter referred to as the Act, and placed them in the charge of the Deputy Commissioner of Barabanki district in which most of these properties were situate. The Court of Wards gave to these properties the name Ganeshpur estate. Upon such assumption of charge the -cause titles of the two suits were amended and in the place of the appellant's name, the name " Deputy Commissioner, Barabanki I/C Court of Wards, Ganeshpur estate " was substituted, such amendment being required by the provisions of s. 55 of the Act the terms of which we shall presently set out. The letters " I/C " in the substituted name were an abbreviation of the words " in charge of." Thereafter, the respondent's suit was- dismissed by a decree dated June 3, 1947, except as to his claim to two villages, it being found that in them Raja Harnam had only a life estate and to them the appellant had no claim after his death, and that these had been given to her by the family arrangement by mistake. As the family arrangement was substantially upheld by the decree in the respondent's suit, the appellant's suit became unnecessary for it bad been founded on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the heavy costs of the litigation and the then impending legislation for abolition of zemindaries. Thereafter, under the instructions of the Court of Wards, the lawyers appearing for the parties in the appeals presented to the High Court on April 28,1952, petitions for recording compromises in the appeals and for passing decrees in accordance therewith. On May 2, 1952, the High Court passed orders directing the compromises to be recorded and decrees to be passed in the appeals in terms thereof. The appeals were thus disposed of and the proceedings therein terminated. When the appeals were so compromised, the paperbooks in respect of them were in the course of preparation. It is not necessary to encumber this judgment by setting out the terms of the compromise. It is however of some importance to state that the petitions embodying the- compromise were signed twice by Mr. K. A. P. Stevenson, once as Deputy Commissioner Barabanki, I/C Court of Wards, Ramnagar estate, district Barabanki (Appellant in F.C.A. No. 2 of 1948 and respondent in F.C.A. No. 99 of 1947)" and again as " I/C Court of Wards, Ganeshpur estate, district Barabanki (Respondent in F.C.A. No. 2 of 1948 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en heard together in this Court. It is not the appellant's case that the compromise was brought about by fraud or was otherwise vitiated on similar grounds and is therefore liable to be set aside. No avoidance of the compromise is sought. In fact, the appellant had initially alleged in her petitions that the compromise had been brought about by fraud and collusion. She however amended the petitions by deleting the paragraphs containing these allegations and chose to proceed on the purely legal basis that the compromise was a nullity. It is for this reason that we have not referred to the terms of the compromise. No question arises in those appeals as to their fairness or as to whether they should be avoided on any equitable ground. If the compromise decrees were a nullity as the appellant contends, then she would no doubt be entitled to proceed on the basis as if they bad never been made and in that view her applications would be competent and should succeed. The question is whether the compromise decrees were a nullity. The appellant first says that the compromise decrees were a nullity as the terms of s. 56 of the Act which are mandatory, had not been complied with. That se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion is not changed whether it is read as directory or as mandatory. If it was not otiose as a mandatory provision, it would no more be so as a directory provision. Another fallacy in this argument is that it assumes that by reading s. 56 as a directory provision a discretion is conferred on the Court of Wards to appoint or not to appoint representatives for the wards, as it pleases. A provision giving a discretionary power leaves the donee of the power to use or not to use it at his discretion. A directory provision however gives no discretionary power free to do or not to do the thing directed. A directory provision is intended to be obeyed but a failure to obey it does not render a thing duly done in disobedience of it, a nullity. Therefore, it seems to us to be wrong to say that by reading s. 56 as merely directory any discretion is conferred on the Court of Wards. It also seems clear to us that ss. 55 and 56 deal with entirely different matters. Section 55 deals only with the name in which a ward may sue or be sued. Section 56 deals with appointment of representatives for two or more wards who are parties to a litigation and have conflicting interests, to defend or conduct th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... representative for each ward and require the representatives so appointed to prepare a statement containing the point or points for determination and to file the statement in a civil court in the form of a case for the opinion of the court. The section further provides that the civil court shall proceed to hear and dispose of the case in the manner prescribed by the Code of Civil Procedure for the hearing and disposal of suits and also that the case shall be conducted by the representatives appointed for the wards subject to the general control of the Court of Wards. Section 58 empowers the Court of Wards when it thinks that a dispute which has arisen between two or more wards is a fit subject for reference to arbitration, to appoint a representative for each ward and require the representatives to submit the dispute to the arbitration of a person or persons approved by it. It would appear therefore that the position of a ward is the same whether the case is governed by s. 56, s. 57 or s. 58. In each case one ward has a dispute with another; in each their interests conflict. In the first two cases, the conflict is submitted to the decision of a civil court and in the third, to arb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Collector of the district, sometimes called the Deputy Commissioner, in which the largest part of the property is situate who is nominated for the purpose. In the present case, as it happened, the estates of both the appellant and the respondent were situate in the same district of Barabanki and had, therefore, been put in charge of the same officer, namely, the Deputy Commissioner of that district. Now, it may so happen in another case that the estates of the wards are in charge of different Collectors or Deputy Commissioners. To such a case also s. 56 would be applicable if the two wards happened to be parties to a litigation with conflicting interests. It would be strange if in such a case any decree that came to be passed had to be held to be a nullity because the terms of that section had not been complied with. It could not, of course, then be said that the interests of the wards had been prejudiced by the omission to appoint representatives under s. 56, for, there would in such a case be no difficulty for the Collectors to look after the interests of their respective wards in the best way possible. This view of the matter also seems to indicate that s. 56 is not imperative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bout by the Court of Wards in -exercise of its statutory powers. That the Court of Wards could make a compromise on behalf of a ward is clear and not in dispute. It does not lose its powers when it has two wards and can therefore make a compromise between them. When it does so, it makes a contract between the two of them. Therefore, to the present compromise there were two parties. The act expressly contemplates a right in the Court of Wards to make a contract between two of its Wards. Thus under s. 61(1) of the Act, a contract executed by the Court of Wards for a ward may be executed in its own name or on behalf of the ward. Under sub-sec. (3) of that section, when the transferor and transferee are both its wards, the Court of Wards shall have power to enter into convenants on behalf of the transferor and the transferee respectively. Sub-section (2) of s. 61 provides that the convenants made by the Court of Wards on behalf of a ward shall be binding on the ward. If the Court of Wards did not have the power to make a contract between two of its wards, it would often be impossible to carry on the management of the wards' properties beneficiently. The power of the Court of Wards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a nullity. Now, Or. XXXII, r.4(2) provides that where a person under disability has a guardian declared by a competent authority, no other person shall be appointed his guardian unless the Court considers for reasons to be recorded, that it is for the welfare of the person under disability that another person should be appointed as his guardian. Section 27 of the Act gives the Court of Wards the power to appoint a guardian for a ward who is of unsound mind. The Deputy Commissioner, Barabanki, was in fact appointed the guardian of the appellant under the Act when upon her lunacy, her estate came under the superintendence of the Court of Wards. Her estate was in his charge. Therefore, under the provisions of Or. XXXII, r. 4, the Deputy Commissioner, Barabanki, was entitled to act as the appellant's guardian for the appeals and the Court had not made any order a pointing another person to be her guardian. The Court of Wards is a statutory body and was created to look after the interests of the wards. Its constitution is such that it can be trusted to be impartial. Its position is wholly different from that of a private guardian. No fault can be found with the Court in having left ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the management of the Deputy Commissioner, Barabanki. Between the two estates there was litigation and- at the crucial point of time, two appeals, being F.C.A. No. 99 of 1947 and F.C.A. No. 2 of 1948, were pending on the file of the High Court at Allahabad. The cause-titles in the appeals give the following array of parties F.C.A. No. 99 of 1947 Deputy Commissioner, Barabanki, I/C Court of Wards, Ganeshpur estate, district Barabanki. Appellant versus Deputy Commissioner, Barabanki, I/C Court of Wards, Ramnagar estate, district Barabanki. Respondent F.C.A. No. 2 of 1948 Deputy Commissioner, Barabanki, I/C Court of Wards, Ramnagar estate, district Barabanki. Appellant versus Deputy Commissioner, Barabanki, I/C Court of Wards, Ganeshpur estate, district Barabanki. Respondent It is clear from the said array of parties in the appeals that the same person represented both the estates, and the Deputy Commissioner, Barabanki, was both the appellant and respondent. It appears that the Court of Wards effected a settlement between the two wards in respect of the outstanding disputes between them, and, presumably as directed by the Court of Wards, the Deputy Commissioner, Barabanki, filed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings be taken in the civil court otherwise than by and in the name of the Collector in charge of his property or such other person as the Court of Wards may appoint in this behalf." S. 56: " When in any suit or proceeding two or more wards being parties have conflicting interests, the Court of Wards shall appoint for each such ward a representative and the said representative shall thereupon conduct or defend the case on behalf the ward whom he represents, subject to the general control of the Court of Wards." These two sections are placed in juxtaposition and they appear to be complementary to each other. Section 55 prescribes the mode or proceeding by or against the ward in a court. Ordinarily, he should sue or be sued in the name of the Collector in charge of his pro. perty. It also visualizes the contingency when a Court of Wards may appoint in its discretion some other person instead of the Collector for the Purpose of this section. Buts. 56 deals with a particular situation, namely, when there are conflicting interests between the wards who are parties to a suit, and, in that event, a duty is cast on the Court of Wards to appoint separate representatives fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment of a separate agent to help the Collector, who had a dual role to perform, it would have used the word " agent " in the section. That apart, the Collector does not require the statutory power to appoint an agent to help him in the conduct of a suit; for, as a party to the suit, he can always appoint separate Advocates for the two wards. That the word " representative" does not mean an agent but is intended to convey the idea of one representing a ward and as such brought on record in that capacity, is made clear by the other provisions of the Act wherein the same word appears. Section 57 of the Act reads: " (1) Where any question arises as between two or more wards of such nature that an adjudication upon it by a civil court is expedient, it shall be lawful for the Court of Wards to appoint a representative on behalf of each ward. The representative so appointed shall prepare a statement containing the point or points for determination and shall on behalf of the said wards file the statement in a civil court having jurisdiction in the form of a case for the opinion of the said court, (2) The civil Court shall then proceed to hear and dispose of the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " representative " and limit its scope, but only brings out the idea that the suit shall not proceed till such a representative is appointed. A person appointed to represent a disqualified person shall have all the powers of a party subject to the limitations imposed by relevant statutes and the only limitation imposed by s. 56 of the Act is that the said representative is subject to the general control of the Court of Wards. It follows that the representative can enter into a compromise subject, to the general control of the Court of Wards. Assistance is sought to be derived by the Additional Solicitor General from decisions distinguishing between the powers of a Solicitor and a Counsel and holding that a Solicitor being only a representative cannot enter into a compromise without the consent of the client, while the latter being in charge of the entire litigation can do so. In my view these decisions are based upon the peculiar characteristics of the two branches of the profession and cannot legitimately be invoked to construe the provisions of s. 56 of the Act. Nor the fact that the representative appointed under s. 56 of the Act is subject to the general control of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quot; is used in a statute it should be construed as directory unless non-compliance with the provision is made penal. Nor the decision in The Queen v. Ingall (1876) Q.B.D. 199, 207 lays down any such wide rule of construction. Under s. 42 of Valuation (Metropolis) Act, 1869, provision is made for the performance of several acts within the times prescribed therein. Every matter connected with the valuation must be transacted before the 31st of March, for the list comes into force on the 6th April. But there are other sections whereunder provision is made for preparing the valuation lists where there has been omission to make them according to the requirements of the Act. The observance of times is not enforced by penalties. The Court held that, notwithstanding the use of the word "shall " in s. 42 of the Valuation (Metropolis) Act, 1869, the provision is only directory. In construing the provisions in such a manner, Lush, J., observed: " We ought to look at the object which the legislature contemplated in passing the Valuation (Metropolis) Act, 1869 But we must, in construing the Act, strike a balance between the inconvenience of holding the list to be null and voi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed." Bearing the aforesaid principles in mind let us look at the provisions of s. 56 of the Act. The object of s. 56 of the Act is to prevent the anomaly of the same person occupying a dual role of plaintiff and defendant and to provide for an effective machinery to safeguard the interests of the wards who are placed under the supervision of the Court of Wards. Should it be held that the appointment of a representative was at the discretion of the Court of Wards, the entire object of the section would be defeated. A person for whose 'benefit the provision was conceived would be represented by the opposite party, a situation anomalous in the extreme. On the other hand, no evil consequences can ordinarily be expected to flow if the provision be construed as mandatory. A statutory body like the Court of Wards can be relied upon to discharge the duties cast upon it by s. 56 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the record and were dealt with on the correct footing, the mere want of formality would not make void the bargain of the parties and the decree of the Court. But in the present case, a mandatory provision had not been complied with and the suit proceeded with the Collector as both the plaintiff and defendant. The wards were not represented by their separate representatives for the simple reason that no representatives were appointed. There is no analogy between that decision and the present case. For the aforesaid reasons I hold that the compromise decree was a nullity and the appeal must be deemed to be pending on the file of the High Court. In this view, I am relieved of the duty of expressing my opinion on the other questions raised and seriously argued, namely, whether the Court of Wards has power to settle conflicting disputes between two wards and whether such a settlement would be a lawful agreement within the meaning of Order XXIII, rule 3 of the Code of Civil Procedure. In the result, the order of the High Court is set aside and it is directed to dispose of the appeals in accordance with law. The appellant will have his costs here and in the High Court. By the Court: ..... X X X X Extracts X X X X X X X X Extracts X X X X
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