Lachmi Narain Shankar vs Mahomed Abrahim Hussain Khan

Ross, J.—The facts out of which this appeal arises are these. Manjhle Nawab was declared a disqualified proprietor u/s 6(e) of the Court of Wards Act of 1879 in 1903 and the Court of Wards took charge of his property in that year. On the 19th March, 1919, his brother Badshah Nawab died and one-third of his property was inherited by the ward. On the 4th of July, 1919, the ward executed a Hundi in favour of the appellant. On the 12th of November, 1919, a notification was published in the Gazette declaring that the properties inherited from Badshah Nawab by Manjhle Nawab had come under the management of the Court of Wards on the 19th of March, 1919; but no formal order u/s 35 of the Act, declaring that the Court of Wards had determined to take this inherited property under its charge and directing that possession should be taken of such property on behalf of the Court, was made. The appellant brought a suit on his Hundi in 1922 against Manjhle Nawab personally and obtained a decree. He proceeded to execute the decree against the inherited property when objection was taken by the judgment-debtor through the general manager of the Court of Wards u/s 47 to the effect that the properties which had been attached were not liable to be attached and sold in execution of any decree under the provisions of Section 60-A of the Court of Wards Act, and that the suit in which the decree was passed was not framed according to law and contravened the provisions of Section 51. The learned Subordinate Judge gave effect to this objection and dismissed the execution petition.

The decree-holder now appeals and it is contended on his behalf in the first place that the Court of Wards has no locus standi to apply u/s 47 of the CPC inasmuch as it was neither a party nor a representative of a party to the suit; secondly, that the Court of Wards was not legally in possession of the inherited property at all as no fresh order u/s 35 was made; thirdly, that Section 51 was bar to the suit; and, fourthly, that the property is not exempt from the execution u/s 60-A of the Act.

The first contention is without substance because the objection taken u/s 47 is an objection taken by the judgment-debtor through the general manager of the Court of Wards.

Section 51 provides that, in every suit against any ward of Court, the manager of the ward''s property shall be named as guardian for the suit and shall represent the ward. Now there is no bar to a disqualified proprietor contracting on his personal covenant; see Zahoor Ali Khan v. Rutta Koer (1867) 11 M.I.A. 468 and Dhunput Singh v. Shoobhudra Kumari (1882) 8 Cal. 620. It was held in Mohammed Abdus Salam v. Rani Kamalmukhi (1918) 5 Pat. L.W. 92 that "it now seems to be settled that where a Court of Wards is in possession of the property of a disqualified proprietor u/s 6(e) of the Act, a suit brought against such a proprietor based upon a contract may proceed without causing the defendant to be represented by the manager of the Court of Wards." In my opinion, therefore, the fact that the manager of the Court of Wards was not made a party to the suit is no ground for the executing Court to refuse to execute the decree.

Then with regard to Section 60-A, it is contended by the appellant that this section does not prevent him from proceeding against the inherited property because this property is not legally in charge of the Court and also because the only prohibition imposed by that section is in respect of the execution of a decree passed on a contract entered into at a time when the property against which the decree-holder desires to levy execution was in charge of the Court. It is contended that at the time when this contract was entered into, the Court of Wards had admittedly not taken possession of the inherited property; and consequently, u/s 35 the Court of Wards could not be held to have been in charge of the inherited property at that time. Consequently it is argued that the creditor was entitled to look to that property for satisfaction of his debt, as the debt was contracted when the property was free. Now if the debt had been by way of mortgage of his property, something might have been said in support of that contention; for, in such a case the fact that the Court of Wards subsequently took charge of the property could not be held to affect the security. But the present suit was brought on a personal covenant only; and it was brought at a time when the property of the ward was under the charge of the Court of Wards. Section 60-A seems to prohibit the levying of execution against any property under the charge of the Court of Wards in such circumstances, unless the leave of the Court has been taken. The expression in the section is "While his property was under such charge" and not, as it ought to have been if the contention of the learned Vakil for the appellant is sound "While such property was under such charge." All that is required to bar the levy of execution against any property of the ward is that the contract which is the basis of the decree should have been entered into without the leave of the Court while his property was under the charge of the Court. Now it is not disputed that the property of Manjhle Nawab was under the charge of the Court from 1903.

The only question remaining therefore is whether this inherited property is legally under the charge of the Court of Wards and this depends upon the construction of Section 35 of the Act. Section 7 gives the Court of Wards power to take charge of all the property of a disqualified proprietor within its jurisdiction. Section 35 provides that, "Whenever the Court has determined to take the person or property of a disqualified proprietor under its charge ... 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 form of the order issued by the Court of Wards in such cases is to be found at p. 60 of the Court of Wards Manual and the operative words are as follows:--"Under Sections 7 and 35 of the said Act IX (B.C.) of 1879, the Court of Wards also declares that it has determined to take under its charge the property of the disqualified proprietor above named, and it directs that possession be taken of such property on behalf of the said Court." It is contended on behalf of the appellant that such an order which admittedly was made when the estate of Manjhle Nawab came under the Court of Wards in 1903 could not cover after-acquired property. In my opinion, there is nothing to restrict the words of the section under which the order was made in this way. The Court declares that it has determined to take the property of the disqualified proprietor under its charge. The order itself refers to Section 7 of the Act which empowers the Court of Wards to take charge of all the property of such proprietor. The disqualification attaches to the person; and, after a declaration u/s 6(e) of the Act, the proprietor is to be held disqualified to manage his own property. Any property, therefore, that comes to him by inheritance or otherwise, after he has once been declared a disqualified proprietor and the Court of Wards has taken over his property u/s 35 of the Act, must be property which he is disqualified from managing and the management whereof must automatically vest in the Court of Wards. The order no doubt does not take effect until possession of the property is actually taken; and, until such possession is taken, the Court of Wards is not in charge of the property and the ward may be free to deal with it as he likes: but this is a matter on which I express no opinion. In the present case possession was admittedly taken in November, 1919; and, if that possession was lawfully taken, then Section 60-A is clearly a bar to the levying of execution against it. I can see no ground for holding that possession was not lawfully taken because no fresh order u/s 35 of the Act was made. In my opinion such an order is made once for all; and, after the order has once been made, all that is required to complete the charge of the Court of Wards is the taking of possession.

This appeal must be dismissed with costs and the application in revision is also dismissed.

Sen, J.

I agree.