BALWANT SINGH Vs. COLLECTOR OF SAHARANPUR

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for recovery of possession of properties in lists A, B and C of the plaint and for a declaration of title as regards the properties in lists 0 to G. It appears that the plaintiff succeeded to what is called Landhaura estate in 1913, and in 1916, 1917 and 1918 he executed deeds of gifts and exchange in favour of his wife relating to properties A, B and C which he now says were fictitious transactions, the title never having passed to his wife. The bulk of the property in list C was acquired at public auction by a sale which the plaintiff alleged was benami. The property in list D was acquired by a pre- emption suit, and those in E, F and C under private deeds. All these were alleged by the plaintiff to belong to him and not to his wife. In 1923 the plaintiff himself applied that his estate should be taken by the Court of Wards under its own superintendence, and in his declaration expressly excluded the properties in dispute in the suit on the ground that they belonged to his wife. The Court of Wards took over the superintendence of his property, excluding those now in suit. Later on the Court of Wards also took over the management of the estate of the plaintiff's wife Mt. Ram Kunwar in 1924, and in that connexion took possession of these properties which are now in dispute in the suit.

(2.) The plaintiff himself filed this suit on his behalf and impleaded the Collector as representing Mt. Ram Kunwar. The suit has been thrown out by the learned Subordinate Judge on the preliminary ground that it was not maintainable. The main questions of fact have not been tried. Nor has the Court had any occasion to consider the effect of Section 66, Civil P.C., with regard to the properties purchased at auction.

(3.) The plaintiff has preferred this appeal from the decree, and it is urged on his behalf that inasmuch as the properties now in dispute had never been taken possession of by the Court of Wards, his suit relating thereto is not barred by the provisions of Section 55, Court of Wards Act. In support of this contention strong reliance is placed on the judgment of their Lordships of the Privy Council in the case of Krishna Prasad Singh V/s. Moti Chand [1913] 40 Cal. 635, which turned on the provisions of the Bengal Court of Wards Act 9 of 1879. This case was naturally followed in Krishna Parsad Singh V/s. Gosta Behari Kundu [1907] 5 C.L.J. 434 and Mohammad Abduz Salam V/s. Hani Kamalmukhi [1918] 5 Pat. L.W. 92.