SHIVA PRASAD Vs. SHAMBHU PRASAD

JUDGEMENT

(1.) This is the appeal of Rai Shiva Prasad against the judgment of a learned single Judge of this Court, whereby in effect he dismissed the plaintiff's claim for ejectment against a tenant and, incidentally, and what is of more practical importance, declared certain acts of the Court of Wards to be ultra vires.

(2.) On the 17 of September 1909 Shiva Prasad and Shambhu Prasad, brothers, of full age, on their own application, had their estate put under the superintendence of the Court of Wards. On that date the Act of 1899 was in existence. By 1919 presumably the estates had been cleared of its embarrassment, and the time was arriving when the Court of Wards wished to be free of this superintendence and on the 18 of December 1919 there was an agreement executed by the Court of Wards and by a lady named Gopi Kunwar, who was the mother of the plaintiff and defendant. The Court of Wards were of opinion that there should be a partition of the estate before it passed put of their control, and that gave rise to a question as to the position of the lady Mt. Gopi Kunwar. It transpired that she was willing on the partition to have maintenance instead of any share in the estate of her late husband. By the agreement of the 18 of December 1919 the lady expressed herself satisfied with the appointment of Mr. Lalit Mohan Banerji as arbitrator, and shortly before that Mr. Wallach and Dr. Sen had been appointed the representatives of Shiva Prasad under the provisions of Section 58 of the Court of Wards Act of the United Provinces (No. 5 of 1912). For the purposes of this case we assume that with regard to the appointment of Mr. L.M. Banerji there was no discussion, no agreement between the parties representatives, Mr. Wallach and Dr. Sen. The procedure adopted by the Court of Wards in the appointment of Mr. Lalit Mohan Banerji was based upon the view taken by the Court of Wards that just as they had an undoubted right to appoint a representative on behalf of each such ward without the ward being in a position to raise any question as to the representative, so equally they had a right to appoint any person as arbitrator, and in the words of Section 58 to require the said representatives to submit the question or dispute to the arbitration of such Person.

(3.) That is the position for which the plaintiff contends today, asserting that what the Board did shortly prior to and on the 18 of December 1919 was done entirely within the powers of the Court of Wards, and was in every way regular and proper. The question of the propriety of the acts of the Court of Wards came up in rather a curious manner. There is no evidence to suggest that Shambhu Prasad or his representative, Dr. Sen, even raised any question that the appointment of Mr. Lalit Mohan Banerji should in the first instance have emanated from Mr. Wallach and Dr. Sen. The arbitration was held, the matter was debated before Mr. Lalit Mohan Banerji and he, on the 31 of January 1920, gave an award.