CHHOTEY LAL Vs. BRIJRAJ SINGH

JUDGEMENT

(1.) This appeal arises out of a suit for cancellation of a deed of gift made by one Baldeo Singh, father of Brijraj Singh, the plaintiff, in favour of Pt. Chhotey Lal, the present appellant. The main contention for the defendant was that the plaintiff could not sue as the property of the joint family, which consisted of himself, his father and his brother Yuraj Singh had been taken under the Court of Wards. Both the lower Courts have held that the plaintiff had a right to sue on the ground, as they hold, that the plaintiff was not a ward. If the plaintiff was not a ward and his property had not been taken under the Court of Wards, there is of course an end of the matter and the two lower Courts were right. We do not consider, however, that they sufficiently examined all the circumstances.

(2.) It is admitted on both sides that Thakur Baldeo Singh was nothing but the managing member of a joint Hindu family consisting of himself and his two sons Brijraj Singh and Yuraj Singh. There can be no doubt that Thakur Baldeo Singh, if he so chow, could have asked Court of Wards on behalf of himself and as guardian on behalf of his two minor sons to take over the estate. We find by the notification which is published in the local Gazette, part 2, of 25 September 1920 the notification being dated the 15 September 1920, that the Court of Wards purported to take over "the Kakrahwa estate" in the Shahjahanpur, Kheri and Mainpuri districts at the request of Thakur Baldeo Singh, son of Thakur Kuman Singh, described as proprietor of the property." Great stress is laid upon the literal words of this notification by the respondent-plaintiff, and it is to be presumed that the lower Courts relied upon the particular words employed, and apparently must be taken to have held that because the minor sons were not mentioned in the notification, therefore they cannot be regarded as wards under the Court of Wards, or their property as having bean taken over. We do not think that this literal interpretation is one to which we can possibly give effect. It is inconceivable to us that the Court of Wards should take over the property of the managing member of a joint Hindu family and leave outside its control the two minor sons of that managing member, the only other members of the joint Hindu family. We think that the application by Thakur Baldeo Singh must be taken to have been made on behalf of himself as managing member of the family and as guardian on behalf of his minor sons, and that the notification must be taken to have been the final result of that request. We are supported in this view as the only, as it appears to us, reasonable view to take of the notification, by the fact set out in the affidavit of the defendant-appellant and not contradicted by the plaintiff-respondent that the Court of Wards is and has been in fact managing the whole of the joint family property. It is stated in the affidavit filed by the plaintiff-respondent that Brijraj Singh, the plaintiff, is possessed of separate property that he has received from his maternal relations, and that property is not under the superintendence of the Court of Wards. This is a new fact, if it be a fact, of which we have mention for the first time, and there is nothing to show us that the Court of Wards have any knowledge of the existence of this property in the ownership of Brijraj Singh, if in fact there is any such property.

(3.) Taking the view of the notification that we do, it is clear that the defendant's plea must be accepted and that the plaintiff was debarred by Section 55, Court of Wards Act from suing. We, therefore, allowing the appeal, set aside the decrees of the lower Courts and dismiss the plaintiff's suit with costs throughout.