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TMI Blog1902 (12) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... to sell the said house, and received part of the consideration. He did not, however, come forward to execute the sale-deed, and the plaintiff accordingly asked the Court to compel the defendants to execute, complete, and effect the registration of the sale-deed in his favour. 3. Chaudhri Fateh Bahadur Singh admits the claim brought, and says he has no objection to the sale-deed being executed. He was, however, prohibited from executing it by the Court of Wards for Oudh. The Court of Wards took up the position that Chaudhri Fateh Bahadur Singh was, in July, 1897, incapable of entering into any contract in respect of the house, as that house was then under its control. The Court of Wards was no party to the contract, and such contract could not therefore be enforced against it. 4. That the Court of Wards, under Government Order No. 2250, dated the 4th September, 1895, assumed superintendence of the property of Chaudhri Fateh Bahadur Singh is not disputed. A minor question, however, does arise with reference to the house in dispute. It appears that this house is not entered in the list of property which Chaudhri Fateh Bahadur Singh prepared when he applied to the Court of Wards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had as its object in creating a Court of Wards that persons incapable of managing their own property shall be in certain cases relieved of such management, and the duties of management and superintendence transferred from them to a Court of Wards; and further, that when such transfer has been effected the incapable persons above mentioned, while so disqualified, shall be absolutely debarred from entering into any contract with reference to the property so transferred, then it may safely be presumed that it was never the intention of the Legislature to draw a sharp boundary line, and while pronouncing A on the hither side of the Ganges to be incapable of administering such of his property as is situate on the hither side of the same river, to deem him capable of managing property on the further side. The contrary presumption in such a case would be manifestly absurd, and to hold it would without express words to the contrary be unreasonable. 8. The earliest Regulation bearing upon the point is Regulation X of 1793--a Regulation which extended to Bengal, Behar and Orissa. The objects with which that Regulation was passed will be seen from section 5 to have been the watch and ward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No illustration of this is required. So far then as these regulations are a guide, we may safely presume that the intention of the Legislature was the safeguarding of the interests of incapable proprietors wholly irrespective of geographical considerations. We find nothing in the language or provisions of Act No. XVII of 1870 or No. XIX of 1873, which runs counter to the presumption. It has, however, been urged that the mere fact that the proprietor's interests would suffer is not in itself a sufficient warrant for our ignoring the local extent expressed in unequivocal language of Act No. XVII of 1876, and for extending the provisions of the law further than what the Legislature intended. We have therefore to see whether, independently of the above presumption, the incapacity to contract, which has been created by Act No. XVII of 1876, rests upon some well-known and well-established principle of law, which, unless expressly circumscribed, is not dependent upon local limitations, but is of absolute and universal obligation. 11. The question of the capacity and incapacity of persons to contract has been considered by eminent jurists. It is very fully discussed in The Conflic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase Stirling, J., cited the above passage and followed it. In the third case, Lord Halsbury quoted with approval the following passage from Story on the Conflict of Laws. He says:-- Story has with his usual precision laid down the rule ('Conflict of Laws', section 64), that if a person is under an incapacity to do any act by the law of his domicile, the act, when done there, will be governed by the same law wherever its validity may come into contestation with any other country: quando lex in personam dirigitur, respiciendum est ad leges illius civitatis qua personam habet subjectam. There is an unusual concurrence, he continues, in this view amongst the writers on international law: Qua aetate minor contrahere possit et ejusmodi respicere oportet ad legem, cujusque domicilii: Burgundus, Tract., 2 n. 6. C'est ainsi que la majorite et la minority du domicile ont lieu partout meme pour les biens situes ailleurs. Boullenois, Princip, Gen. 6. Quotiescunque de habilitate aut de inhabilitate personarum quœratur, toties domicilii leges et statuta spectanda: D'Argentre. So also J. Voet: Quoties in quœstione, an quis minor vel majorennis sit, obtinuit, id dijud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kind, was the primary consideration. This case by itself would perhaps not have been a sufficient warrant for us to hold in favour of the respondents; but looking at the case from all sides, and bearing in mind (i) that the Court of Wards has been established for the benefit of disqualified proprietors, and that both in the North-Western Provinces and in the province of Oudh, the provisions relating to the incapacity of disqualified proprietors to enter into contracts in respect of property under the superintendence of the Court of Wards are one and the same; (ii) that capacity and incapacity to contract follow the law of domicile; (iii) that the Court of Wards derives its powers from the sovereign as Parens Patriae, and that the Court should if necessary extend such powers so as to safeguard the interest of incapable proprietors under its ward, and (iv) that no case to the contrary has been cited, we are prepared to hold that the Courts below were right when they held Chaudhri Fateh Bahadur Singh incapable of entering into a contract in respect of the subject-matter of this suit; and further that the order under Act XVII of 1876 laid down that Chaudhri Fateh Bahadur Singh was not ..... 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