V NAVANEETHA KRISHNA THEVAR Vs. RAMASAMI PANDIA THALAVAR

JUDGEMENT

(1.) Appeal No. 380 of 1914 is an appeal from the judgment of the Subordinate Judge of Tinnevelly in Original Suit No. 30 of 1911 a suit brought by Eamasami Pandia Thalavar claiming to be the nearest reversioner of the last Zamindar of Uttumalai to declare that certain alienations made by the Court of Wards during their management of the estate on behalf of the widow of the late Zamindar, Eanee Meenakshi Sundara Nachiar, now an incapacitated proprietor under Madras Act I of 1902, are not binding on the estate. Under that Act, as amended, suits by and against a ward are to be in the name of the ward but the conduct of the suit is with the manager appointed by the Court of Wards acting as guardian ad litem. Defendants Nos. 2 to 22 are alienees and persons claiming under them. Defendant No. 23 denies the plaintiff s pedigree and claims to be the next reversioner, and has brought a similar suit (Original Suit No. 26 of 1912) to declare the alienations of the properties mentioned in schedules 5 and 6 of the plaint in Original Suit No. 30 of 1911 invalid. He was added as a party to this suit together with defendants Nos. 24 to 31 whoclaim to be remote reversioners and support him. The plaintiff has also brought other suits in the Court of the District Munsif of Ambasamudram (Original Suits Nos. 380 to 382 of 1909) to question an alleged alienation made by the 1st defendant whilst in management in 1901, and these suits have been transferred to the Subordinate Judge s Court of Tinnevelly and tried along with the principal suit (Original Suit No. 30 of 1911) and are now the subject of appeals before us (Appeals Nos. 346 to 351 of 1915). Though this and the connected suits have been brought for a declaration that certain alienations are not binding beyond the life of the 1st defendant, there can be little doubt that the main object of the plaintiffs in the suits was to assert their respective titles as next reversioners to the estate on the death of the 1st defendant. The relationship of the 23rd defendant is admitted, and though the Subordinate Judge found against his reversionary right, it is now admitted that his judgment on that point, cannot be supported. The relationship set up by the plaintiff in the present suit is strongly contested both by the Court of Wards on behalf of the 1st defendant and by the 23rd defendant, and was the main question fought in the Court below. The Subordinate Judge has found that the plaintiff s case is true and that he is the son of Gnanapurani Nachiar, the legitimate daughter of the Zamindar who died in 1850 and of his 2nd wife Gomathimuthu Nachiar who according to the plaintiff s case was the daughter of one Maruthappa Thevar and was married by the Zamindar Navaneetha Krishna Maruthappa Thevar as his 2nd wife between the years 1841 and 1845, and that Gnanapurani s mother was not, as contended by the defendants, a dancing girl named Kuppi who was living with the Zamindar as his concubine when she gave birth to Gnanapurani. He has also held the alienations questioned to be invalid and has given the plaintiff a declaration to that effect. His judgment on the latter point is supported by the 23rd and subsequent defendants but Mr. Nugent Grant instructed by the Manager for the Court of Wards who is the guardian ad litem of the 1st defendant has appealed against this part of the decision also, and contended that the alienations cannot be questioned, and that being so, that the suit should be dismissed without going into the claims of the rival reversioners.

(2.) The alienations questioned in the main suit were made by the Court of Wards whilst in superintendence of the estate purporting to act under the statutory powers given them by Section 35 of the Act. In 1899 the old Court of Wards Regulation V of 1802 was amended by the insertion of a general chapter intended to enable the Court to take encumbered estates under its management and clear them from encumbrances, and in 1902 the Eegulation was repealed by Madras Act 1 of 1902 which re-enacted the provisions of the Act of 1899 and introduced other changes. Section 35 of the Act is in the following terms: "The Court may mortgage or sell the whole or any part of any property under its superintendence and may give leases or farms of the whole or any part of such property for such terms as it thinks fit, and may make remissions of rent or other dues, and may generally pass such orders and do such acts not inconsistent with the provisions of this or any other Act for the time being in force as it may judge to be for the advantage of the ward or for the benefit of the property." The Subordinate Judge has held that this only enables the Court to sell or mortgage the particular interest of the ward in the property under superintendence unless there are circumstances which would justify the ward himself if sui juris in selling outright. Under the Act, the ward is not necessarily a full owner and may be, as here, a widow, or the owner of an impartible estate with limited powers of alienation under the Madras Impartible Estates Act, 1904, which continued in substance the provisions of the temporary Act passed at the same time as the Court of Wards Act in 1902, or the property may be owned as joint family property by several minors in which case the senior if of age would only have a limited right of sale. In comparatively few cases under superintendence in this Presidency would the ward if sui juris be full owner with power to sell outright. The power to sell, mortgage or lease is in terms absolute, and is not governed by the restriction in the later part of the section, as pointed out in Mohsan Shah v. Mahbub Ilahi 1; and to say that the Court cannot sell outright where the ward has only a life interest unless there are circumstances which would justify the ward himself in selling under the Hindu law is to import into the section the words which are not there and to hamper the Court in the exercise of powers which are conferred (1907) I.L.R. 29 A. 589 upon it as incidental to its right of management for the benefit of the Estate, that is of the ward and those who come after him. The word property under its superintendence means, in my opinion, the moveable and immoveable property itself and not the particular interest of the ward as widow. Further, if the word property be construed as confined to the limited interest of the ward, it Will be necessary to look elsewhere for the Court s power to sell and mortgage outright in cases where the Hindu Law allows it. Powers of selling, mortgaging and leasing are often conferred on trustees and others as incidental to powers of management, the proceeds being held by them as part of the estate, and I see no reason why the section should not be construed as conferring such power upon the Court. To enable it to extricate encumbered estates from difficulties, the legislature in other sections has gone the length of enabling it to oust mortgagees in possession from management of the property under mortgage to them and take over the management. Sales or mortgages of life interests are always highly speculative and unsatisfactory transactions, and were not, in my opinion, the transactions which the section was enacted to validate. It seems to me that the Intention was to enable the Court of Wards to give a statutory title free from the risk of law suits by subsequent heirs etc., and so to enable it to realise the best price for the estate. The decision by their Lordships of the Judicial Committee in Muhammad Mumtaz Alikhan v. Farhat Alikhan (1901) I.L.R. 23 A. 394, did not relate to a sale or mortgage but to a transaction which their Lordships held to be a voluntary alienation not warranted by the latter part of the section which was nearly in the same terms as the present section.

(3.) As regards the particular alienations in the plaintiff s schedule, that referred to in the sixth schedule was of one of two bungalows possessed by the estate at a watering place called Courtallum. No tenants were to be obtained, it was falling into decay, and the fact that a ruined Zemindar had been allowed to live there by the late Zemindar and had been buried in the compound was against its letting well. I think that the widow herself would have been justified in selling under these circumstances. The property comprised in the 6th schedule is only 17 acres. Both these sales were, in my opinion, within the powers of the Court.