Ibrahim Hussain Khan vs Ram Newaz Gayasat Ram and Others

Ross, J.—These appeals have been brought by the Manager of the Court of Wards on behalf of Saiyid Ibrahim Hussain alias Manjhley Nawab, a disqualified proprietor whose estate is under the charge of the Court of Wards, against an order passed by the Subordinate Judge of Patna dismissing objections filed by the Court of Wards in execution proceedings taken by the respondents who had obtained decrees for money against the ward personally.

The Court of Wards took charge of Manjhley Nawab''s estate on 9th September 1902. Saiyid Mehdi Hussain Khan alias Badshah Nawab, the elder brother of the ward, died on 19th March 1919 and Manjhley Nawab became entitled by inheritance to one-third of his estate. Badshah Nawab had by two deeds of 25th May 1917 and 19th February 1919 purported to create a wakf of his estate and his estate was actually in possession of one Ali Zamin as mutawalli. On 12th November 1919 the Collector of Patna representing the Court of Wards issued a notification, declaring that the Court had taken charge of Manjhley Nawab''s share in the inheritance of Badshah Nawab. In 1920 the younger brother of Manjhley Nawab Saiyid Akbar Ali Khan alias Chhote Nawab brought a suit against Ali Zamin for a declaration that the wakfnama was invalid. To that suit Manjhley Nawab and his two sisters were parties. The suit was decreed on 31st July 1922 and on the same day the Collector of Patna authorized the Manager under the Court of Wards to take possession of Manjhley Nawab''s share in Badshah Nawab''s estate. On 26th February 1923 a parwana was issued by the Manager of the Court of Wards to the tahsildars of the estate to collect Manjhley Nawab''s share of the rents. The decree of the Subordinate Judge was affirmed by the High Court on 16th January 1928 and an appeal is pending before the Judicial Committee. On 18th August 1928 the Court of Wards brought a suit, being Title Suit No. 68 of 1928, for recovery of possession, but the trial of that suit has been stayed pending the decision of the Privy Council. It is stated in the petitions of objection to the present proceedings, by the Court of Wards that the Court had applied for mutation of names in the Land Registration Department, but the application had been rejected. It is further stated that the property is still in possession of Ali Zamin and that the petitioner has not as yet got possession over the share sought to be sold in execution:

What the decree-holders have attached and are seeking to sell will be seen from the description given in the execution petition of Lachmi Narain printed at p. 7 of the paper book in M.A. No. 233 of 1928, the descriptions in the other execution petitions being in similar terms:

The milkiat right and share of the judgment-debtor, the extent whereof, to the best information, knowledge and belief of this petitioner is 5 annas 4 pies, i.e., 1/3 milkiat. share in each of the properties given below which is situate within the estate of Saiyid Mehdi Hussain Khan alias Badshah Nawab deceased, in respect of which wakf deed, dated 19th February 1919 was executed which (wakf) was at last held invalid, inoperative and ineffectual under the judgment of the Honourable High Court at Patna, dated 16th January 1928 and the properties detailed below were held to lie within the estate of Saiyid Mehdi Hussain Khan alias Badshah Nawab. Be it known that in the details of the properties given below, the milkiat share, which has been disclosed to the best knowledge, information and belief of this petitioner, constitutes the 16-annas. share of the estate of Saiyid Mehdi, Hussain Khan alias Badshah Nawab; in each kalan of which the judgment-debtor has 1/3 share. The approximate value of the entire share of the judgment-debtor is Rs. 6,000.

It is this proposed sale that the Court of Wards objects to.

The learned District Judge was of opinion, in view of the admissions in the petitions of objection, that the property was still in possession of Ali Zamin and that the mere issue of an order to the Court of Wards servants to make collections was not enough to give the Court of Wards possession. He held that as the property is a zamindari in respect of which the only possession possible is the collection of rent and it was not suggested that the Court of Wards had actually made collections, the Court could not be held to be in possession and therefore was not in charge of the properties within the meaning of Section 60-A read with. Section 35, Court of Wards Act 9 (B.C.) of 1879. He accordingly decided that the execution should proceed.

Section 60-A is as follows:

No property which is or has been under the charge of the Court shall be liable at any time, except with the leave of the Court, to be taken in execution of a decree made in respect of any contract entered into by the Ward without the leave of the Court while his property was under such charge.

Section 35 provides:

Whenever the Court has determined to take the person or property of a disqualified proprietor under its charge, whether in accordance with an order of the civil Court or otherwise, the Court shall make an order declaring the fact and directing that possession be taken of such person and property or of such property on behalf of the Court, and the Court shall be held to be in charge of such property from the time when possession shall have been so taken.

The question therefore is whether the Court of Wards has taken possession within the meaning of Section 35 so as to be in charge of the property which the decree-holders seek to sell. A similar attempt to execute one of these decrees against this property was dealt with by this Court in Lachmi Narain Shankar Vs. Mahomed Abrahim Hussain Khan, . It was held that any property that came to the ward, by inheritance or otherwise, after he had once been declared a disqualified proprietor and the Court of Wards had taken over his property u/s 35 of the Act, must be property which he was disqualified from managing and the management whereof must automatically vest in the Court of Wards. In that case it was not disputed that possession had been taken in November 1919 and the question in the present case relates to this point whether in fact possession had been taken or not. The answer to this question depends on the nature of the possession which Section 35 requires; and in dealing with the question it will be well to bear in mind the observation of Fry, L.J., in Lyell v. Kennedy [1887] 18 Q.B.D. 796:

There is perhaps no legal conception more open to a variety of meanings than possession.

The learned Government Pleader contends that possession is taken by the order directing possession to be taken. The respondents contend that the word "so" at the end of Section 35 means "in pursuance of the order of the Court," that is to say, that the taking of possession is an act distinct from the order directing possession to be taken. It seems to me that the order directing possession to be taken and the taking of possession are two distinct things. This view finds support in the decision in Krishna Prasad Singh v. Gosto Behari Kundo [1907] 5 C.L.J. 434. That was a case where the manager had declined to take possession of part of ward''s property, and it was held that a suit could proceed in respect of that property without the manager being made a party. That property had been "left alone" by the manager and therefore was held not to be in charge of the Court within the meaning of Section 35. But the question is what is necessary to be done in order to the taking of possession of property so as to bring it under the charge of the Court of Wards? That must vary with the nature of the property of which possession is to be taken. Learned Counsel for the respondents contended that as the Court of Wards Act is a piece of exceptional legislation in derogation of Common law rights, Sections 60-A and 35 must be strictly construed and that actual possession must be taken although it is conceded that symbolical possession or constructive possession may be sufficient. The principle is undoubtedly sound, but it does not answer the question. Then it was further argued that the Court of Wards is not in actual possession because it is not in a position either to realize or to sue for rent because the name of Ali Zaman is still in the Collector''s Register and because the very fact that the Court has had to bring a suit for possession negatives the claim to be in possession. The learned Government Pleader contends that if this construction is put upon these sections, it leads to an absurdity and he suggested hypothetical cases, e.g. if a trespasser was in possession of some of the ward''s properties, then on this construction the Court of Wards could never successfully sue for possession, because, if actual possession is an essential element in the charge of the estate, then the Court not being in charge could not establish a right to possession. Similarly, if tenants were not paying rent then, if actual realization of rent was the test of possession, a suit for rent must fail. It seems clear at least that possession by actual collection of rent cannot be the criterion.

The answer to the question seems to me to depend upon the nature of the possession of which the property in question admits. Full ownership includes both title and possession. Manjhley Nawab admittedly, for the purposes of this case, has title because it is his interest in Badshah Nawab''s estate that the decree-holders are seeking to sell. But as Ali Zamin is in actual possession, he has title without possession. Of what sort of possession is that interest capable? Evidently not of physical possession. It cannot be suggested that Ali Zaman is in possession of that interest, because his possession as mutawalli under the wakfnama is in negation of that interest. If the title can be sold, then it must he capable of being protected from sale, and if possession is necessary to its protection, then the possession contemplated by Section 35 must be only such possession as the property admits of. Now in this case the Court of Wards has directed possession to be taken and the manager has done all in his power to carry out that order by issuing a parwana to the tenants to pay their rent to the Court and by applying for mutation of names in the Land Registration Department. Further the Court of Wards has taken the only possible step to enforce its possession by bringing a suit for possession. It seems to me therefore that if this property viz., the interest of Manjhley Nawab in the estate of his deceased brother is capable of possession at all, the only possession of which it is capable has been taken by the Court of Wards.

It is clear that physical possession of the land is not a necessary element of charge, because in that case the Court of Wards could not sue at all. The judgment-debtor is a disqualified proprietor in charge of the Court of Wards and his disqualification is personal. u/s 51 he cannot sue by himself. But some one must be in a position to sue and it can only be the Court of Wards; and if possession is necessary in order to constitute the title of the Court of Wards, then the only possible possession has been taken. Possession in reality in such circumstances as these can only amount to a continuing exercise of a claim. Here notice has been given to the tenants, mutation has been applied for and a suit has been brought, and this, in my opinion, amounts to a continuing exercise of a claim to this property. In other words, the Court of Wards is actually exercising all the rights over the property that the judgment-debtor himself could have exercised, it has put itself in the ward''s place as regards this property and I do not see what more than this the possession contemplated by Section 35 can mean. The Court of Wards is exercising such "control as the circumstances would admit of," to use the words of Ex. C-B, in discussing the "ambiguous" term "possessions" in Bourne v. Fosbrooke [1865] 18 C.B.N.S. 515.

The matter may be put in another way. Although for the purposes of this appeal the title of Manjhley Nawab is admitted, yet in fact it is nothing more than a right of action. If the decision of the Judicial Committee is in favour of the wakf, then this interest becomes nothing at all. This right of action has been taken up by the Court of Wards which has instituted the necessary suit. In my opinion the Court of Wards has done all that it can do and that can be required of it in order to take charge of the property sought, to be sold in this case. I would therefore allow these appeals set aside the order of the Subordinate Judge and dismiss the executions with costs throughout.

Fazl Ali, J.

It is hardly necessary for me to add anything to the very full judgment of my learned brother in this case but as the question of law raised is a somewhat important one, I wish to make certain observations merely to emphasize that I entirely agree with the view taken by him.

It is admitted that the properties sought to be sold by the respondents in execution of their decrees are not in the possession of the judgment-debtor Ibrahim Hussain Khan but of one Ali Zamin and that the judgment-debtor has at present merely a title to the possession of these properties. The respondents however seem to be content with getting hold of whatever interest is possessed by the judgment-debtor and the question to be determined is whether they can do so in spite of Section 60-A, Court of Wards Act. It is clear that the respondents cannot get at the interest of the judgment-debtor which is loosely described as his property in these proceedings, if it is shown that it is already under the charge of the Court of Wards. It may be assumed for the time being that Section 35 is capable of no other construction than this: that the Court of Wards is to be held to be in charge of an individual property only from the time when it takes possession of such property. Thus the crucial question in this case is whether the Court of Wards can be held in this case to be in possession of the interest sought to be sold. This interest, as I have already said, means a bare title to possession and a question arises as to how the Court of Wards can take possession of it. It is clear that no question of actual or physical possession arises in this case because here the disqualified proprietor himself being not in possession the Court of Wards can be in no better position. Thus all that has to be seen is whether the Court of Wards has done any overt act to signify that it has assumed control over the present interest of the disqualified proprietor and that the latter can no longer deal with it independently of the Court of Wards. In my opinion a mere declaration by the Collector u/s 35 which was made in this case on 12th November 1919 might have been sufficient for this purpose but in this case we find that after the aforesaid declaration a parwana was issued by the manager to the Tahsildars in 1923 to realize rent from the tenants and the Court of Wards has since also instituted a suit to recover possession of the properties in question from Ali Zamin. These overt acts are clear and unequivocal, and plainly indicate that the Court of Wards has assumed control of whatever interest is at present possessed by the disqualified proprietor. This being so, I think Section 60-A fully applies and the properties in question are not available to the respondents in execution.

There is another aspect of the case which I shall briefly refer to here. Under the Court of Wards Act there are provisions enabling the Court of Wards to take charge of either both the person and the property of a disqualified proprietor or only his property. The word "property" in these provisions plainly means the entire estate possessed by the disqualified proprietor and no attempt has been made to distinguish the estate as a whole from the individual properties composing .it. Accordingly Section 35 also provides that

whenever the Court has determined to take person or property of a disqualified proprietor under its charge, whether in accordance with an order of the civil Court or otherwise, the Court shall make an order declaring the fact and directing that possession be taken of such person and property or of such property on behalf of the Court, and the Court shall be held to be in charge of such property from the time when possession shall have been so taken.

Here also I think that the word "property" does not mean any individual property, but the entire estate of the disqualified proprietor. From this it seems to follow that the latter part of the section which defines when the Court of Wards will be held to be its charge of the property of the disqualified proprietor merely lays down the condition as to when the entire: estate of the ward will be deemed to pass under the charge of the Court of Wards. This view is suggested not only by the use of the expression "such property" in the latter part, of the section, bat also by not giving it an independent place in the Act either under the section relating to the definitions or any other section. Now, it may be that no separate provision has been made with regard to individual properties because it was assumed that once the entire estate of a disqualified proprietor has been taken charge of by the Court of Words, any subsequent acquisition or accretion to that estate will be governed by the same rules as the main estate and that consequently it was not necessary to take over formal charge in respect of each individual property which is subsequently acquired or otherwise becomes part of the estate. This seems to be the basis of one of the instructions recently issued by the Board of Revenue which I find referred to in Note 3 of the Behar and Orissa Wards Manual. Construed in this light, Section 60-A might be held to apply not only to the individual properties which constitute an estate at the time it is taken charge of by the Court of Wards, but also the subsequent acquisitions. If this view is not adopted it may lead to certain anomalies which were perhaps never intended to happen by the framers of the Act. Take for example a case where the Court of Wards purchases certain property out of a portion of the income of the estate which is under its charge Are we to say that, having acquired this new property, the Court of Wards should go through the formality prescribed by Section 35, and if the taking over of its possession is delayed for some reason, the newly acquired property might be successfully seized upon by a creditor in execution? Similarly, if certain property belonging to the disqualified proprietor happens to be under water at the time the estate is taken charge of by the Court of Wards and subsequently re-appears, must it be necessarily held that unless the formality prescribed in Section 35 is gone through afresh in respect of such property, and acts of possession are actually exercised over such property, it will not be deemed to be under the charge of the Court of Wards and will therefore be liable to be proceeded against in execution?

Mr. P.R. has brushed aside the first of these illustrations on the ground that he was not prepared to deal with it offhand, and as to the latter illustration his answer was that in such a case the formal taking over of the charge would be unnecessary because possession of the Court of Wards would be presumed. I do not sea how this view can be supported in view of the clear language of Section 35, if it is assumed that Section 35 relates not only to the entire estate, but also to each individual property which may coma into the hands of the disqualified proprietor subsequent to the assumption by the Court of Wards of the charge of his estate. Now, it appears to me that the contrary view is suggested not only by the entire scheme of the Court of Wards Act, but also by the fact that no provision has been made in this Act as to what would happen to the subsequent acquisitions. As I have already said once before it may be that no such provision has been made because it was assumed that the subsequent acquisitions are to be treated merely as a part of the main estate and what governs the whole will also govern the part. In other words, once the whole estate has been properly taken charge of by the Court of Wards, it will he assumed to be in charge of every individual property which is subsequently acquired.

I do not wish however to express any final opinion on this point, because I am aware that it is not free from certain difficulties owing to the somewhat inartistic language of Sections 35 and 60-A and what further adds to my diffidence in the matter is that I find that Section 35 has been construed differently by Mookerjee, J., in Krishna Prasad Singh v. Goshtha Bihari khundu [1907] 5 C.L.J. 434. I cannot also overlook the fact that in some cases the newly acquired property may be valueless or so heavily encumbered that the Court of Wards may not like to deal with it. Should it however be a fact that the legislature really intended that, if subsequent to the assumption by the Court of Wards of the charge of the property of a disqualified proprietor any other property is acquired by him by succession or otherwise, no fresh formal order u/s 35 would be necessary to complete the charge of the Court of Wards over such property, the Act might be amended in suitable terms so as to express this intention more clearly than it has been done in the present Act. It is sufficient for the purpose of disposing of these appeals, and I have expressed myself to be in complete agreement with my learned brother on the first question, and so I concur in the order that these appeals should be allowed with costs.