RAGHAVENDRA SADASHIV Vs. SADASHIVRAO MADHAVRAO

JUDGEMENT

(1.) THE question referred to this full bench is: Whether the rulings in Hari Govind v. Narsinhrao Konherrao (1913) I. L. R. 38 Bom. 194 : s. c. 16 Bom. L. R. 30 and Bandoo Krishna v. Narsingrao (1914) I. I. R. 38 Bom. 663 : s. c. 16 Bom. L. R. 527 are no longer good law in view of the observations of the Privy Council in Braja Sunder Deb v. Rajendra Narayan Bhanj Deo (1937) L. R. 65 I. A. 57 : s. c. 40 Bom. L. R. 700 and whether Section 82 of the Bombay Court of Wards Act is applicable to suits brought against a Government ward before the superintendence of his property was assumed by the Court of Wards. THE question is really one, and the statement of it in the reference represents two aspects of it. Section 32 of the Bombay Court of Wards Act, 1905, is in the following terms: Subject to the provisions of the second paragraph of Section 440 of the Code of Civil Procedure [o. XXXII, Rule I], in every suit brought by or against a Government ward, the manager of the Government ward's property, or, where there is no manager, the Court of Wards having the superintendence of the Government ward's property, shall be named as the next friend or guardian for the suit, as the case may be. Taking the section by itself it seems to me that either a narrow or a broad construction is possible, the narrow construction being that it relates only to suits filed after the ward has been made a Government ward and superintendence of his property has been assumed, and the broader construction being that it applies to every suit whether filed before or after the superintendence of the ward's property has been assumed under the Act. In these circumstances it is desirable to examine the material scheme of the Act, and to consider which construction, the broad or the narrow, is more in consonance with that scheme.

(2.) SUPERINTENDENCE of the property of a land-holder holding land, or of a pension-holder receiving a pension, may be assumed by the Court of Wards under Sections 4 and 9 of the Act. Section 4 relates to land-holders and pension-holders disqualified to manage their own property, and Section 5 sets out what land-holders and pension-holders, for the purposes of Section 4, are deemed to be disqualified to manage their own property. Section 9 permits the Court of Wards to assume the superintendence of the property of land-holders or pension-holders, who have applied in writing to the Provincial Government to have their property placed under the superintendence of the Court of Wards, and the Provincial Government is of opinion that it is expedient in the public interests to preserve the property of the land-holder or pension-holder for the benefit of his family. The effect of the Court of Wards assuming superintendence of the property of a land-holder or pension-holder is given in Sub-section (2) of Section 13, which provides that the whole of the property, moveable and immovable, of such land-holder or pension-holder shall be deemed to be under the superintendence of the Court of Wards. Section 14 and the following sections deal with disposal by the Court of Wards of claims against the ward. Section 14 provides that claims must be made to the Court of Wards within a certain time. Section 15 provides, inter alia, that a certified copy of the decree, or, when a suit is pending, a copy of the plaint shall be sufficient (Statement of the claim to the Court of Wards. Section 16 provides for investigation of claims by the Court of Wards, and Sub-section (2) of that section provides that, when the Court of Wards has admitted any claim, it may make proposals to the claimant for reduction of the claim or of interest, and Sub-section (3) of that section provides that, subject to the provisions of Sub-section (2), nothing in the section shall be construed to bar the institution of a suit in a civil Court for the recovery of claim against a Government ward or his property which has been duly submitted to the Court of Wards. Those sections seem to provide that all claims must be made to the Court of Wards. The Court of Wards then has an opportunity of admitting them, and also of negotiation, but, if the claims are not admitted or compromised, the claimant's right to seek his remedy by a suit is unaffected. Section 17 provides, inter alia, that on the publication of a notice under Section 14 directing claims to be submitted, no proceeding in execution of any decree against the Government ward or his property shall be instituted or continued until the decree-holder files a certificate from the Court of Wards that the decree-claim had been duly submitted. Section 18 provides for a report to Government after the investigation of all claims by the Court of Wards, and for orders withdrawing the superintendence of the Court of Wards in certain circumstances. The next section necessary to be noticed is Section 31, which provides that no suit relating to the person or property of any Government wards shall be brought in any civil Court until the expiration of two months after notice in writing having certain particulars, including the relief claimed, to the Court of Wards. Section 34 is material, and reads as follows: Every process 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. Lastly Section 37 is important, and the first sub-section of it is as follows. - (1) Except with the approval of the Court of Wards, a Government ward shall be incompetent to transfer or create any charge on, or interest in, his property or any part thereof (except such interest as may be created by a will made in accordance with Section 38), or to enter into any contract which may involve him in pecuniary liability; and no suit shall be brought in any Civil Court whereby to charge any person upon any promise made after he has ceased to be a Government ward to pay any debt contracted during the period when he was a Government ward, or upon any ratification made after he has ceased to be a Government ward of any promise or contract made during the period aforesaid, whether there is or is not any new consideration for such promise or ratification.

(3.) I agree. Gajendragadkar, J.