Mullick, J.:— This is an application for the exercise of our revisional jurisdiction under Section 115 of the CPC. The facts, are these:
A gentleman named Luchmi Prasad Singh had certain properties. One of these properties called the Bahadurpur estate he gave by will to his grandson Ram Bahadur Singh. Another property called the Shankarpur estate he gave by will to his second son Udit Narain Singh, After his death there were disputes between the members of the family, and by an ekrarnamah it was settled that Ram Bahadur Singh should keep possession of the Bahadurpur estate and Udit Narain Singh should keep possession of the Shankarpur estate, subject to the arrangement that upon the death of either of them the other should succeed to his property. In 1907 Ram Bahadur Singh having applied to become a disqualified; proprietor under Section 6 of the Court of Wards Act, the Court took possession of the Bahadurpur estate under Cl. (e) of that, section. Similarly in 1908 the Court of Wards took possession of the Shankarpur estate on behalf of Udit Narain Singh. Ram Bahadur Singh died in January 1917 leaving two widows, who have now instituted a suit for declaration of title to the Bahadurpur estate. In the body of the plaint it is stated that no prayer for possession is made but in the relief portion there is a prayer for possession if the Court considers that the widows have been dispossessed by the Court of Wards.
2. It is necessary to notice that after Ram Bahadur's death the Court of Wards took possession of the Bahadurpur estate not on behalf of Udit Narain Singh, but under Section 13 of the Court of Wards Act, which authorizes the Court to retain possession of an estate if the succession to it is disputed until the right to possession of the claimant has been determined by a competent civil Court. In the suit just mentioned Udit Narain Singh's minor son Loliteswar Prasad Singh was impleaded as a co-defendant. On 12th September, 1917, the Subordinate Judge appointed a pleader of his Court as the guardian ad litem of this minor as the father, Udit Narain Singh, had refused to act in the suit on his behalf, on 16th September the manager of the Shankarpur estate, a gentleman named Abdus Salam, made a petition to the Court asking that he and not the pleader should be the guardian ad litem of the minor boy. He also contended that he was entitled to represent Udit Narain Singh by reason of Section 51 of the Court of Wards Act (Act 9 of 1879). The Subordinate Judge refused the prayers of Abdus Salam and confirmed the appointment of the pleader. The Court of Wards through Abdus Salam have now made this application for the exercise of the revisional jurisdiction of this Court.
3. The plaintiffs are represented before us by Mr. Manuk, Udit Narain Singh, the father, by Mr. Murari Prasad and the minor by the Deputy Registrar through Mr. D.N Sircar.
4. Now the first submission that has been made is that whatever may be the case as regards Udit Narain Singh, the learned Subordinate Judge is bound to appoint the Court of Wards Manager as the guardian of the infant. Now it is not clear whether the Court of Wards has yet taken charge of the person and property of the infant; if it has done be the Court of Wards would be entitled under O. 32, R. 4, sub-Cl. 2, to demand that it should represent the minor. The section requires that when a guardian has been appointed by a competent authority, that guardian alone is entitled to represent the minor unless the trial Court considers that the appointment of another guardian will be to the welfare of the minor. Assuming that the Court of wards in this case is the guardian duly appointed under Section 7 of the Court of Wards Act, in respect of the minor the question is whether the learned Subordinate Judge has exercised a proper discretion in appointing the pleader and in refusing to appoint the Manager of the Shankarpur estate as guardian of the minor.
5. Now this is a pure question of discretion, and at the outset we are met with the difficulty that in such a matter we cannot exercise our powers of revision. The Subordinate Judge upon the materials before him was satisfied that the pleader would be the best guardian to look after the interests of the miner and we cannot interfere with his discretion in this matter. Moreover, it would seem upon the facts before us that the learned Subordinate Judge had very good reason for not appointing the Manager of the Shankarpur estate in this case. The Court of Wards having taken possession of the Bahadurpur estate as a stake-holder seems to be financing both the plaintiffs and the defendants, and it is quite clear that in such a state of affairs it cannot look after the interests of the minor as satisfactorily as a guardian who has no duty whatever towards the plaintiffs. On that ground alone, therefore, the learned Subordinate Judge would seem, in my opinion, to have been right in refusing to appoint Abdus Salam, guardian of the miner. Then again the appointment of, a guardian of a minor for the purpose of suits is really a question of procedure, as has been held by their Lordships of the Privy Council in Walian v. Banke Behari Pershad Singh(1), and an error in matters of procedure is not generally revisable under Section 115 of the CPC. Therefore, so far as the minor is concerned, the petitioner before us has no just cause for complaint.
6. Mr. Murari Prasad on behalf of the father contends that if the Manager is not appointed then he must be appointed the guardian ad litem, and he submits that he declined to act in the Court below only for the reason that he was under the impression that as a disqualified proprietor he was not competent in law to act as guardian ad litem in a civil suit. Here again a question of discretion arises. If the learned Subordinate Judge was of opinion that the pleader was the best person to represent the minor, he was at liberty to disregard the claims of the father and to appoint the pleader. The welfare of the minor was the only consideration that could really operate in the matter. We now pass on to the question of the representation of Udit Narain Singh. If Section 51 of the Court of Wards Act is mandatory, then the Manager must be entered as the guardian ad litem of the disqualified proprietor. It is urged by Mr. Fakhruddin that the Court should have compelled the plaintiffs to describe Udit Narain Singh as a ward of Court and to direct that he be represented in the suit through Abdus Salam, the Manager of the Shankarpur estate. This brings us to a consideration of the terms of Section 51 of the Act. Now the section itself is enacted in very wide terms and if it were to stand alone, it would seem that the contention of the learned vakil for the petitioner before us must prevail. Judicial decisions have however considerably restricted the very wide meaning which is sought to be attached to the section, and it now seems to be settled that where a Court of Wards is in possession of the property of a disqualified proprietor under S. 6. Cl. (e) of the Act, a suit brought against such a proprietor based upon contract may proceed without causing the defendant to be represented by the Manager of the Court of Wards. So also has it been held with regard to suits for declaration of title to or recovery of possession of property that if the suit is in respect of property which is not in the actual possession and disposal of the Court of Wards under Ss. 35 and 5 of the Act, then the suit may proceed against the proprietor alone. The cases in support of these propositions are Dhunput Singh v. Shoobhudra Kumari(2), Krishna Pershad Singh v. Gosta Behari Kundu(3), Tekait Krishna Prasad Singh v. Moti Chand(4) and Ananda Kumari Debi v. Durga Mohan Chuckerbutty(5).
7. If therefore the Court of Wards had been in possession of the Bahadurpur estate on behalf of Udit Narain Singh alone, then it would have been entitled to demand that Udit Narain Singh should be sued, not in person, but through the Manager; but holding the property as a stake holder and as a trustee on behalf of the true owner, in my opinion the Court of Wards cannot claim the benefit of Section 51 of the Act. Moreover, in this case it has been contended that the suit is really based upon contract, namely, the ekrarnamah, made in Ram Bahadur's life time, and that in such a suit it is quite sufficient to sue Udit Narain in his personal capacity. The case of the plaintiffs is that they cannot be deprived of their life-interest as Hindu widows merely by a personal arrangement made by the male members of the family. Whether this contention really goes to the root of the matter or not it is unnecessary to determine. The first ground, namely, the possession of the Court of Wards on behalf of the true owner and not on behalf of Udit Narain Singh seems to me to be sufficient for the disposal of the contention before us.
8. In my opinion the learned Subordinate Judge was right in refusing to allow Udit Narain Singh to be described as a ward of Court and to be sued through his Manager Abdus Salam. The result therefore is that the petition must be dismissed with costs. The plaintiffs who are represented by Mr. Manuk will be entitled to their costs from the petitioner. The disqualified proprietor Udit Narain Singh will be entitled to no costs, because his only substantial contention before us, namely, that he should be appointed the guardian of his son, has been disallowed. Then as regards the costs of the vakil, who has been instructed by the Deputy Registrar, who is the guardian ad litem of the minor in these proceedings, no orders are necessary as he has already received his costs from his client. Hearing fee Rs. 32.
9. Thornhill, J.:— I agree.
V.S/R.K
10. Petition dismissed.