Giridhari Dhal v. Hrushikesh Roy

Panigrahi, J.:— This appeal arises out of a suit filed by the appellant for confirmation, or, in the alternative, for recovery of possession with damages, from defendant No. 1 of 2.10 acres of land comprised in C.S holding No. 165 of village Guhali.

2. The plaintiff's case is that he purchased the suit lands at a Civil Court sale on 15-9-1941 and was put in possession through Court, and was in possession till 3-1-43 when he was ousted by defendant No. 1 who claims to have purchased the same lands at a Rent Sale in execution of a decree obtained by defendant No. 4 in the Rent Court in suit No. 17752 of 1940-1941. The admitted facts are that defendants 2 and 3 were originally the recorded tenants and defendant No. 2 ultimately became the sole tenant as he had purchased defendant No. 3's interest, prior to the rent suit. Defendant No. 4 is the landlord of the holding and defendant No. 5 is the Court of Wards, who have taken charge of the management of the estate belonging to defendant No. 4. It is further alleged that a firm named Dalhousie Proprietors Ltd., obtained a decree on 19-6-40 against defendant No. 2 in the Small Cause Court, Calcutta, and executed a decree in the Munsifs Court, Jajpur, in Execution Case No. 1353 of 1940. The suit properties were attached by the Civil Court on 26-2-1941 and ultimately sold on 15-9-1941. It is also admitted that defendant No. 4 filed a suit against defendants Nos. 2 and 3, his tenants, for recovery of arrears of rent in Suit No. 17752 of 1940-1941 on 23-12-40, and obtained an ex parte decree on 2-4-41. In execution of that decree the holding in suit was put up to sale and was purchased by defendant No. 1 on 16-9-1941, i.e, one day after the plaintiff's purchase at the Civil Court sale. Defendants 2 to 4 remained ex parte throughout and defendants 1 and 5 alone have contested the suit.

3. A number of issues were raised in the Courts below regarding the benami character of defendant No. 1's purchase and the fraudulent character of the Rent suit and the subsequent proceedings. But the main argument in this Court centred on the issue as to whether defendant No. 1's purchase shall prevail over that of the plaintiff. The solution to this question would depend upon whether the rent suit was properly constituted and whether the holding passed at the rent sale to the auction-purchaser. The Court of first Instance found that, at the time the rent suit was instituted, defendant No. 4 was a disqualified proprietor under the Court of Wards Act, and that the management of the Estate had vested in the Court of Wards. Consequently, that Court held that the rent suit, and the subsequent proceedings were a nullity and were ineffectual so as to affect the validity of the plaintiff's purchase. On appeal, the learned Subordinate Judge differed on this point and held that the proceedings in the rent suit were not void ‘ab initio’ as the disqualified proprietor was in the position of a minor within the meaning of O. XXXII, R. 2 of the CPC, and that any defect in his being properly represented in the suit is only an irregularity voidable at the instance of the defendant. In the result, the learned Subordinate Judge set aside the judgment of the Trial Court and directed that the plaintiff's suit should be dismissed.

4. In second appeal elaborate arguments have been addressed to us on the scope of the Court of Wards Act and the validity of the rent decree obtained by defendant No. 4 after he was declared to be a disqualified proprietor. The plaintiff-appellant's contention is that under the Bengal Court of Wards Act (Act IX of 1879) a ‘disqualified proprietor’ is not competent to sue in his own name for recovery of arrears of rent, as the management of his estate is vested in the Court of Wards and consequently defendant No. 4 was not a proprietor entitled to recover arrears of rent after the properties had been taken over by the Court of Wards. This argument is met by the respondent by reference to O. XXXII, R. 2 of the CPC, which provides the procedure for representation of minors in suits by or against them. Reliance was also placed on Section 69 of the Orissa Tenancy Act, which provides that payment to the registered proprietor of an estate would be a sufficient discharge for the rent due. Section 78 of the Land Registration Act (Act VII of 1876) declares that no person shall be bound to pay rent to any person who is not registered as a proprietor. On these grounds, it was argued that, in the absence of proof that the Court of Wards was registered as proprietor, defendant No. 4 was the only person who could sue for arrears of rent and who can validate the discharge in payment of arrear rents due.

5. It is proved that by a notification dated the 10th June 1940 the Court of Wards declared that Sri Brajasundar Das (Defendant No. 4) was a disqualified proprietor and that it was expedient in the public interest that his estate should be managed by the Court of Wards under Sections 7 and 35 of the Court of Wards Act. The Court of Wards had also declared its determination to take under its charge the properties of the disqualified proprietor and directed that “possession be taken of such properties on behalf of the said Court”. It is proved by exhibits 13 and 33 that the Court of Wards took over formal charge of the estate of defendant No. 4 on the 16th August 1940. Government revenue due on the estate was paid by the Court of Wards on 2-9-40 and on 8-11-40, as evidenced by the chailans (Exs. 27-d and 27-e). The Administration Report on Wards Estates (Ex. 33) also shows that active steps were taken by the Court of Wards to realise the arrear of rent due to the Estate and discharge the debts due by the Estate by selling some of the landed properties of Sri Brajasunder Das paragraph 14 mentions the expenditure of a sum of Rs. 25/- for improving the garden at Saidpur belonging to defendant No. 4. Paragraph 21 says that the officer-in-charge of Sri Das's estate visited the zamindari twice in the year, paragraph 28 says that the management of the estate during the year was generally satisfactory, though there was delay on the part of the manager of Sri Das's estate in taking effective action to bring the management of the estate into order and to take steps to clear the debts. App. I to the Report shows that actually 67.8 per cent, of the current demand was collected by the Court of Wards in respect of this estate. App. II shows the disbursements made during the year. App. V shows that no civil suits were filed for recovery of rents and cesses due to the Ward. It is thus abundantly clear that the Court of Wards was actually in possession of the estate during the year ending in March, 1941, and the defendant's contention that the Court of wards had not assumed complete charge of the estate till August 1941 is unsustainable.

6. The next question to be considered is the effect of the Court of Wards' taking over charge of a disqualified proprietor's properties under S. 35 of the Act. S. 39 of the Act lays down that a manager appointed by the Court shall have power to manage all properties, which may be committed to his charge, to collect the rents of the land entrusted to him as well as of the other moneys due to the ward and to grant receipts therefor. Where no manager is appointed, S. 38 of the Act declares that the Collector of the District or any other Collector whom the Court may appoint shall be competent to do anything that might be lawfully done by the manager of such property. Part VII of the Act deals with the procedure relating to suits brought by or against any ward. The 51st Section provides as follows:

“51. In every suit brought by or against any ward he shall therein be described as a Ward of Court; and the manager of such Ward's property, or, if there is no manager, the Collector of the District in which the greater part of such property is situated, or any other Collector whom the Court of Wards may appoint in that behalf, shall be named as next friend or Guardian for the suit & shall in such suit represent such ward, and no other person shall be ordered to sue or be sued as next friend or be named as the Guardian for the suit, by any Civil Court in which such suit may be pending.”

7. S. 55 lays down:

“No suit shall be brought on behalf of any manager unless the same be authorized by some order of the Court.”

8. S. 60, lays down the disabilities of the Ward and declares that no ward shall be competent to create, without the sanction of the Court, any charge upon, on interest in, his property. S. 60-A exempts the ward's property from being taken in execution of a decree without the leave of the Court while his property is under its charge.

9. It was strenuously argued for the respondents that the 51st Section which lays down how the ward is to be described in a suit by or against him is merely directory in operation, the non-observance of which will not result in a nullification of the proceedings. It was further urged that the provision is intended for the benefit of the ward and if the Court of Wards subsequently ratifies the act of the ward, the proceedings must be taken to have been valid. The sale certificate was issued in the name of the Manager by the Rent Court. It was, therefore argued that this was evidence of the subsequent ratification by the Court of Wards. Mr. S.B Mahapatra for the respondents, who argued the case with great ability, contended that whatever irregularity may have been committed by the ward in instituting the suit in his own name, was acquiesced in by the Court of Wards by taking the sale certificate in its own name.

10. Broadly speaking, it may be said that the provisions of an Act which confer jurisdiction on a statutory body and enacting words where the thing to be done is for the public benefit, must be taken to have a compulsory force. The principle is that the ordinary sense of enacting words is primarily to be adhered to, and provisions, which appear on the face of them to be imperative, cannot, without strong reason, be held to be directory. The Court of Wards Act was enacted with the primary object of safeguarding Government revenue and preserving the estates from being frittered away to the detriment of public revenue by the injudicious management of proprietors. The Act, therefore, constitutes the Board of Revenue as the Court of Wards, and has vested it with powers to deal with every person and every property of which it may take or retain charge under the Act. S. 6 entitles the Court to declare certain persons disqualified, among whom are

“persons as to whom the Local Government has declared, on their own application, that they are disqualified and that it is expedient in the public interest that the estate should be managed by the Court.”

11. It is thus clear that the Legislature provided a new machinery and gave a new remedy for the management of estates. In such a case, can it be argued that the rights of the proprietor to sue for realization of rents still remained intact? Such a position, if accepted, would lead to an obviously anomalous result. While the proprietor is declared by the Act to be disqualified and incompetent to manage the estate, how could he be declared competent to sue for arrears of rent through a Rent Court? While the manager appointed by the Court, of Wards is expressly authorized to realise the rents, how can it be said that the right to sue still vests in the disqualified proprietor? If it does, what does the statutory ‘disqualification’ extend to? It cannot certainly be argued that the proprietor is disqualified only from payment of government revenue and the discharge of his debts, but that he is perfectly competent to sue for arrears of rent and realize them himself. Such an illogical position could never have been intended. It is so improbable as to reduce itself to an absurdity.

12. Lengthy arguments have been addressed on the point as to whether the language of S. 51 of the Act is mandatory or otherwise. As I read the Act, the solution to this question would depend upon the purview, the purpose and the object of the Act not so much on the mere language used. If the enactment lays down in affirmative words that the disqualified proprietor shall be described as a ward, words to indicate the consequences of a disobedience of the enactment in negative words, would be mere surplusage, and in my opinion, the logical consequence of a failure to strictly adhere to the terms of the enactment would be to nullify the entire proceedings. As was laid down by Lord Campbell, L.C in ‘Liverpool Borough Bank v. Turner’, (1830) 45 ER 715:

“No universal rule can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directly only or obligatory, with an implied nullification for disobedience. It is the duty of the Courts of Justice to get ait the real intention of the Legislature by carefully attending to the whole scope of title statute to be construed.”

13. There are cases in the books which lay down that when a statute requires that something shall be done in a particular manner or form without expressly declaring what shall be the consequence of non-compliance, neglect of the statutory requisite would obviously be fatal. In some of them the conditions, forms or other attendant circumstances, prescribed by the statute, have been regarded as essential to the act or thing regulated by it, and their omission has been held fatal to its validity. In others such prescriptions have been considered as merely directory, the neglect of which need not affect its validity or involve any other consequence than a liability to a penalty, if any were imposed, for breach of the enactment. The fundamental rule laid down in all these cases is that the question is, in the main governed by considerations of convenience and justice and would depend on the scope and object of the enactment. The general rule is that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment is obeyed or fulfilled substantially. Our attention was drawn to a passage in Maxwell's ‘Interpretation of Statutes, Eighth Edition, p. 324, which lays down:

“Enactments regulating the procedure in Courts seem usually to be imperative and not merely directory …. The same imperative effect seems, in general, presumed to be intended even where the observance of the formalities is not a condition exacted from the party seeking the benefit given by the statute, but a duty imposed on a Court or public Officer in the exercise of the power conferred upon him, when no general inconvenience or injustice calls for a different construction.”

14. Now, the question is to which category does the provision in Section 51 of the Court of Wards Act be long? Having regard to the subject-matter, the importance of the provision that has been violated, and the relation of that provision to the general object intended to be secured by the Act, I am constrained to hold that the provision was intended to be obligatory, and that a ward, without being represented by the manager, is incompetent to initiate an action himself. The Act prescribes a new form of proceeding and the only way to initiate a proceeding is as prescribed by the statute. For instances where the slightest departure from the language of the statute resulted in the proceeding being declared void, reference may be made to ‘Vaux v. Vollans’, (1833) 43 & A 525; ‘Howard v. Bodington’, (1876) 2 Pro Div 203. I cannot do better than adopt the rule laid down by Lopes L.J in ‘Queen v. County Court, Judge of Essex’, (1887) 18 QBD 704, that:

“where an Act gave a new jurisdiction, a new procedure, new forms and new remedies, the procedure, forms and remedies there prescribed must be strictly complied with.”

15. In ‘Pasmore v. Oswald-Twistle Urban Council’, (1898) AC 387, the question was whether one Peebles could maintain an action against the Urban District Council for failure to cause his drains to empty into the sewers of the defendants. The defendants pleaded that the plaintiff's remedy was to make a complaint to the Local Government Board, pursuant to Section 299 of the Public Health Act of 1875, and that any other remedy by way of mandamus or otherwise was not available. Lord Halsbury observed:

“The principle that where a specific remedy is given by statute, it thereby deprives the person, who insists upon a remedy, of any other form of remedy than that given by the statute, is one which is very familiar and which runs through the law.”

16. Lord Macnaughten in his speech, to the house of Lords observed as follows:

“Whether the general rule is to be admitted, must depend on the scope and form of the Act which creates an obligation and on consideration of policy and convenience. It would be very difficult to conceive any case in which there could be less reason for departing from the general rule than one like the present.”

17. The question arose in a slightly different way in ‘Taylor v. Taylor’, (1876) 1 Ch D 426 where the Sixteenth section of the Lease and Sales of Settled Estates Act was considered. That section provided:

“Any person entitled to the possession or to the receipt of rents and profits of any settled estates for a term of years……may apply to the Court by petition.”

18. It will be noticed that the Section says that the proceeding is to be by a petition and the language is enabling in form. It also prescribed that the person to petition is one entitled to possession or to the receipt of the rents and profits. Jessel, M.R in interpreting this Section said:

“When the Statute says who is the person to petition, it means that the person or persons so described, and no others, shall be entitled to petition; otherwise any one interested might petition under the general principle that when powers are to be exercised by a Court of Law, any person interested in calling those powers into execution is entitled to come before the Court.”

19. Turning to the language of the 51st Section of the Court of Wards Act, I find little justification to depart from the mode prescribed in the Act because the person in possession of the estate is the Court of Wards, and it stands to reason that is the only body who can sue for the rent. It would be a very singular thing for the Legislature to enact that a person out of possession can nonetheless be entitled to collect the rents and thus deprive the Court of Wards of the statutory right to collect rents and profits.

20. Mr. Das, appealing for the appellant, drew our attention to two decisions of the Privy council reported in ‘Lakshminarain v. Syed Ibrahim’, 61 Ind App 340 and in ‘Raja Brajasunder v. Raja Bajendra’, 65 Ind App 57. In tile first case, the only point decided was as to the meaning of the word “possession” occurring in S. 35 but men Lordships indicated that particular attention should be paid to S. 51 of the Act, and that every attempt should be made to comply with its provisions. In the second case, the Ward was impleaded as the first defendant in the suit, and the manager Court of Wards, was added as second defendant. The Manager entered into a compromise with the plaintiff in his capacity as Manager raider the Court of Wards and as guardian of the ward. The first defendant, who was the disqualified proprietor, filed the suit challenging the validity of the compromise. Their Lordships of the Judicial Committee observed:

“In fact and in law, however, his position was that he was a disqualified proprietor: without the Court of Wards upon the record the suit, as against him, was defective: Strictly and formally his consent was not necessary and his dissent mattered nothing ……. The validity of the compromise depends entirely upon whether the Court of Wards consented on his behalf ……. Whether a suit is brought before or after the Court of Wards has assumed charge of the property of a disqualified proprietor, the Court of Wards Manager or the Collector should be made the guardian and must represent the ward in the suit.”

21. It was also laid down that the suit as against the proprietor, without the Court of Wards being represented, is defective and that the suit should be re-constituted to satisfy the provisions of S. 51. The contention therefore, that the rent suit brought by Sri Brajasunder Das was defective and that it contravened the provisions of Section 51 of the Court of Wards Act, resulting in the entire proceedings being declared void, is sound and must be upheld.

22. Mr. S.P Mohapatra, for the respondent, placed strong reliance upon the provisions of O. 32, Rr. 1 and ‘2, of the CPC and referred us to the case reported in ‘Kamalakshi v. Ramaswami Chetty’, 19 Mad 127; ‘Mt. Fuli v. Khokai Mandal’, 55 Cal 712 and ‘Sulaiman Pir v. Abdul Shakkoor’, ILR 1941 Nag 735. All these cases lay down that the rules enacted in O. 32, were intended for the protection and benefit of defendants in a suit brought by a minor and it was held that when the defendant waives this benefit and protection the suit may proceed without the next friend. If the defendant in a suit by a minor is aware all the time of the minority of the plaintiff and yet elects to proceed to trial and takes his chance of obtaining a decree in his favour on the merits, without raising any objection to the maintainability of the suit, the protection afforded to him by O. 32 is removed. The ward under the Court of Wards Act, however, stands on a different footing. The disqualified proprietor, though a ward, is not necessarily a minor and Section 51 of the Court of Wards Act overrides the provisions of O. 32 of the CPC in so far as it lays down that the manager of such a ward's property

“shall be named as next friend or guardian for the suit and shall in such suit represent such ward; and no other person shall be ordered to sue or be sued as next friend or be named as guardian for the suit by any Civil Court in which such suit may be pending.”

23. S. 52 further provides that the Civil Court in which such suit is pending shall substitute the name of the next friend or guardian for the suit so appointed. Order 32 of the CPC, can therefore have no application to suits brought by or against a ward under the Court of Wards and the Civil Court has no power to a next friend or guardian of such ward. This analogy, therefore, fails and the decisions bearing upon O. 32 have consequently no application here.

24. It was next argued that the person registered under the Land Registration Act of 1876, as a registered proprietor, is the only person who is entitled to collect the rent and that, in the absence of any evidence that the Court of Wards got itself registered as proprietor, the rent suit filed by defendant No. 4 was competent. Section 69 of the Orissa Tenancy Act lays down that the payment to a registered proprietor shall be a sufficient discharge for the rents due. The fallacy of this argument is patient. A disqualified proprietor does not cease to be a “proprietor” within the meaning of the Orissa Tenancy Act or the Land Registration Act of 1876. By operation of law he becomes disqualified to manage his estate and becomes a ward of the Court. Proprietary right to the estate still vests in him though the right to is transferred by statute. Furthermore, the Land Registration Act does not require that the manager appointed by the Court of Wards shall be registered in place of the disqualified proprietor and there is no evidence that the Court of Wards did not intimate to the Collector the change in the management of the estate belonging to defendant No. 4 as required under Land Registration Act. In any case S. 78 affords protection to the person liable to pay rent and does not confer a right on the ward to sue. The Orissa Tenancy Act, likewise, expressly provides in S. 252 that the provisions regulating the procedure for realization of rents in estate under the management of the Count of Wards shall be unaffected by the Orissa Tenancy Act. The contention must therefore be negatived.

25. Finally, it was argued by learned Counsel for the respondents that the Court of Wards having taken the sale certificate in the name of its Manager must be presumed to have ratified the act of the ward in bringing the suit in his own name. This argument overlooks the express provisions of the Court of Wards Act, which lay down the specific duties of a manager in Ss. 39-41 and no such power of ratification is vested in the manager without the express orders of the Court. In ‘Dinesh Chunder v. Ghulam Mustafa’, 16 Cal 89, a suit was instituted on behalf of a ward by the Manager of the Court of Wards without the order of the Court and proceeded to judgment without any such order or sanction. The suit was partially decreed and the Manager appealed to the District Judge. At the hearing of the appeal an application was filed on behalf of the manager, accompanied by a letter of the Court of Wards giving sanction to the institution of the suit with retrospective effect from the date of its institution. It was argued that S. 35 was intended for the guidance of managers and not for absolutely binding the Courts of Law in respect of suits by managers or on behalf of the Wards. In negativing this contention the Court observed that:

“the proceedings which were invalid at their inception could not be validated by a subsequent sanction.”

26. To the same effect is the case reported in ‘Bisweswar v. Sashi Sikhareswar’, 17 Ind App 5, where the manager authorized one Bisweswar be institute a suit on behalf of the minor plaintiff in order to prevent the application of limitation, but the Court of Wards subsequently refused its sanction thereto. In upholding the order of dismissal by the learned Subordinate Judge, their Lordships for the Judicial Committee observed:

“Not only the Subordinate Judge had jurisdiction to strike the case off the file, but he was quite right in doing so”,

27. And held that the suit was, by law, incapable of being prosecuted. In ‘Ramchandra v. Ranjit Singh’, 27 Cal 242 an order passed in a claim petition filed by the manager without the sanction of the Court of Wards was held to be not binding upon the ward on the ground that the term ‘suit’ in S. 53, included miscellaneous proceedings. The reasoning of the respondent's counsel is not consistent with the spirit and the plain meaning of the provisions of the Court of Wards Act and the respected cases show that a suit which is invalid at its inception cannot be validated by subsequent consent or ratification. I have therefore arrived at the conclusion that the judgment of the learned Munsif is right and should be restored and that this appeal allowed with costs.

Ray, C.J:— I agree with the conclusions arrived at by my learned brother.

R.G.D

28. Appeal allowed.