HARGOVIND FULCHAND DOSHI Vs. BAI HIRBAI

JUDGEMENT

(1.) The judgments of Shall and Crump JJ. state the facts with such fulness and clearness that I need not repeat them.

(2.) The point for decision is whether Sections 31 and 32 of the Bombay Court of Wards Act are applicable to this suit. I find that they are not.

(3.) By the Gujarat Talukdars Act and Court, of Wards Act the right to sue a Talukdar in the one case and a Government Ward in the other, is left unaffected, except in certain specified cases with which we are not now concerned; though suits against the Court of Wards and Officers acting thereunder are broadly speaking prohibited by Section 45 of the Court of Wards Act. The point I wish to emphasise is: that the suits which are unaffected are suits, not against Government or any officials, but against the Talukdar or the Government Ward in person and by name. This is clear from the provisions of the Acts in general and from Section 16, Clause (3), of the Court of Wards Act and Section 29D(3) of the Gujarat Talukdar s Act in particular. But though this is so the provisions of the Court of Wards Act show to my mind with unmistakable clearness, that though the suit is against the Government Ward by name it is, except in form and name, a suit against the Manager of the Government Ward s property. This is manifest from Section 32 of the Court of Wards Act which provides that the Manager "shall be named as the next friend or guardian for the suit." Thereafter the suit necessarily proceeds in actual practice as if the Manager and not the Ward was the litigant. In pursuance of this purpose Section 31 of the Court of Wards Act requires a notice of two months before the suit is brought, just as in the case of suite against Government servants. In private suits no such notice is under the ordinary law required. Then Section 35 contemplates suits by the Manager on behalf of the Ward, a further confirmation of the proposition that the purpose of the Act is to treat the Manager not the Ward as the real litigant.