COLLECTOR OF CAWNPORE Vs. JUGAL KISHORE

JUDGEMENT

(1.) This first appeal arises out of a suit brought by Babu Jugal Kishore, plaintiff, against Thakur Raghuraj Singh, defendant, on the basis of a hundi for Rs. 8,000. The defendant received this money and covenanted to pay the amount after 90 days. The defence was that the contract embodied in the hundi was beyond the competence of the defendant because at the time he was a ward: see Section 37 (a), U.P. Court of Wards Act, 1912. Another defence was that the suit against the ward personally was barred by Section 55 of the said Act, which provides that no ward shall be sued nor shall any proceedings be taken in the civil Court otherwise than in the name of the Collector in charge of his property or such other persons as the Court of Wards may appoint in this behalf.

(2.) The suit was instituted on 5 March 1921, and apparently 24 April 1924 was fixed for framing the issues. At any rate on that date the defendant was examined as a ward, and the general attorney of the plaintiff was also examined. The defendant said that he had been a ward of the Court of Wards for 13 or 14 years. The general attorney for the plaintiff said that he came to know that the defendant was a ward when the written statement was filed, but he did not know since when he had been a ward. Issues were then struck Issue I was whether the defendant was incompetent to take the loan and, whether the plaintiff was aware of his incompetency, and issue 2 was whether the Collector of Cawnpore was a necessary party to the suit. The 8 July 1924 was fixed for hearing the evidence. On that date the pleader for the defendant stated that his client was not ready with his evidence owing to pre-occupation with his daughter's marriage and asked for a short adjournment of a few hours in order that the Head Clerk of the Court of Wards could be produced along with his record. He stated that the Head Clerk had not arrived at his office although it was 11-30 a.m. The Court refused this adjournment on the ground that the defendant had summoned no witnesses for the day and decreed the suit on the ground that there was nothing on the record to show that the defendant was a ward on the date of the execution of the hundi or that the plaintiff had notice of this fact. It also held that there was nothing on the record to show that the defendant was a ward of the Court at the date of the institution of the suit and so there was nothing to sustain the objection that the Collector of Cawnpore was a necessary party.

(3.) The following pleas are taken in this appeal. One was that the adjournment should have been allowed to enable the Government notification declaring the defendant, a ward, to be produced. Another was that it was immaterial whether the plaintiff had notice of the assumption of the management by the Court of Wards of the defendant's estate. The second plea we need not consider as the suit was rightly dismissed if the Judge was right in holding that the defendant was bound to prove that he was a ward and had failed to do so.