MOHSAN SHAH Vs. MAHBUB ILAHI

JUDGEMENT

(1.) THE property in dispute in this appeal was the properly of one Musammat Hawa Begam, deceased. In the year 1896, according to the plaint, Musammat Hawa Begam asked that her property might be placed under the superintendence of the Court of Wards. This prayer of hers was granted, and the property was taken charge of by the Court of Wards. We must however, point out that the Court of Wards assumed the superintendence of this property under Clause (g) of Section 194 of Act Ho. XIX of 1873 and not under Section 9 of the Local Act No. III of 1899. At the time when the Court of Wards took over the superintendence of this property, the Court had full power, under Section 203 of Act No. XIX of 1873, to mortgage or sell the whole or any part of such property. THE sale complained of was made in 1902, and Section 35 of Act No. III of 1899 applies to that sale. This section gives the Court of Wards full power to mortgage or sell the whole or any part of the property under its superintendence, subject to one limitation, viz. where property has been placed under its superintendence under Section 9 of the Local Act, such property cannot be sold without the consent of the proprietor. We need not consider the rest of the second paragraph of Section 35. This property was not placed under the superintendence of the Court of Wards under Section 9 of the Court of Wards Act, which had not then found its place in the statute book. Accordingly the Court had full power to make the sale in question. It is then urged that a question may arise as to whether the discretion given to the Court of Wards has been properly exercised and whether the sale was for the benefit of the ward or of the property. Section 47 of the Local Act provides that the exercise of any discretion conferred by the Court of Wards Act on the Court of Wards shall not be questioned by any Court. It is clear, therefore, that the question of discretion raised in this second appeal cannot be entertained in the Civil Court. We, therefore, arrive at the same conclusion as the Court below, but upon different grounds. If the property had been placed under the superintendence of the Court of Wards under Section 9 of the Local Act), and if the sale had been made without the consent of the proprietor otherwise than on the ground set out in the concluding paragraph of Section 35, the sale would have been a bad sale and the Civil Court could have entertained a suit to question the power of the Court of Wards to sell. THE learned vakil for the appellant has contended very earnestly and said all that could be said on behalf of his clients, but the fact that the estate was taken under the superintendence of the Court of Wards under the provisions of Act No. XIX of 1873 renders his position untenable. THE appeal is dismissed with costs.