Rani Drig Raj Kuer Vs. Raja Sri Amar
Krishna Narain Singh  INSC 151 (14 December 1959)
CITATION: 1960 AIR 444 1960 SCR (2) 431
Court of Wards-Estates of appellant and
respondent both in charge of Court of Wards-Statute Providing for appointment
of representatives of such wards-Failure to appoint representativesSettlement
of appeal by Court of Wards and compromise decree thereon-Validity of-Whether
Provisions of statute mandatory U.P. Court of Wards Act, 1912, (U.P. 4 of
1912), s. 56, Code of Civil Procedure, 1908 (5 of 1908), 0. XXXII.
The respondent, proprietor of Ramnagar
Estate, filed a suit against the appellant, proprietor of Ganeshpur Estate, for
the recovery of certain properties. The appellant filed a cross-suit against
the respondent. During the pendency of the suits the appellant was declared to
be a person of unsound mind and the Court of Wards assumed superintendence of
her properties under the U. P. Court of Wards Act, and placed them in charge of
the Deputy Commissioner of Barabanki. Thereupon the cause titles on the suits
were amended and in place of the appellant's name the 'Deputy Commissioner,
Barabanki I/C Court of Wards Ganeshpur Estate' was substituted. The Trial Court
partly decreed the respondent's -suit and dismissed the appellant's suit. Both
parties preferred appeals to the High Court. While the appeals were pending the
Court of Wards took over the Estate of the respondent also and placed it also in
charge of the Deputy Commissioner, Barabanki. The cause titles of the appeals
were then amended and for the name of the respondent, the name 'Deputy
Commissioner, Barabanki I/C Court of Wards Ramnagar Estate' was substituted.
Thereafter, the Court of Wards passed a
resolution settling the appeal on certain terms and under its instructions the
lawyers for the parties presented petitions to the High Court for recording
compromises in the appeals. The High Court passed decrees in terms of the
compromises. Shortly afterwards the Court of Wards released the two estates.
Later, the appellant recovered from her
affliction, and was declared to be of sound mind. She presented two
applications to the High Court alleging that the compromise decrees were a
nullity and praying for a proper disposal of the appeals. The High Court
rejected the applications. The appellant contended, that the compromise decrees
were a nullity (i) as the Court of Wards had not complied with the mandatory
provisions of s. 56 of the Act, (ii) as there could not in law be a compromise
unless there were two parties but in this case there was only one party the
Deputy Commissioner, Barabanki and (iii) as the High Court failed to appoint a
disinterested person. as I guardian of the appellant -who 432 was of unsound
mind under 0. XXXII of the Code of Civil Procedure.
Held, (per S. K. Das and A. K. Sarkar, jj ),
that the compromise decrees were not a nullity and were binding on the parties.
Section 56 of the Act which provided that
when in a suit or proceeding two or more wards had conflicting interests,
" the Court of Wards shall appoint for each such ward a representative
" to conduct or defend the case on behalf of the ward whom he represented
was clearly direct and the failure of the Court of Wards to observe the
provisions thereof did not render the compromise decrees a nullity. A directory
provision did not give discretionary power to do or not to do the thing
directed ; it was intended to be obeyed but a failure to obey it did not render
a thing duly done in disobedience of it a nullity.
When the appeals were compromised, the
compromise between the parties to the appeals, namely, the appellant and the
respondent. It was not a compromise which the Deputy Commissioner, Barabanki,
made with himself though he represented both the parties. There was nothing in
the Act which indicated that the Court of Wards did not have the power of
making a contract between two wards.
The Deputy Commissioner, Barabanki had been
appointed the guardian of the appellant under the Act, and he was entitled to
act as her guardian for the appeals under 0. XXXII, r. 4 Of the Code. The Court
of Wards was different from a private guardian and could be trusted to be
impartial. The High Court was right in leaving the interests of the appellant
in charge of the Court of Wards though it was also in charge of the interests
of the respondent.
Per K. Subba Rao, J.-The compromise decrees
were a nullity.
The provisions of S. 56 of the Act were
mandatory and a noncompliance therewith vitiated the proceedings. The intention
of the legislature should be gathered from the object of the Act and from a
consideration of the inconvenience that may be caused by accepting the one or
the other of the views. The object of S. 56 was to prevent the anomaly of the
same person representing two conflicting interests and to safeguard the
interests of the wards placed under the supervision of the Court of Wards. No
inconvenience would result from holding the provisions to be mandatory. The word
" shall " in S. 56 could not be read as " may ".
jagan Nath v. jaswant Singh,  S.C.R.
892, Queen v. Ingall, (1876) 2 Q.B.D. 199, Caldow v. Pixwell, (1876) 2 C.P.D.
562, Hari Vishnu Kamath v. Syed Ahmad Ishaque,  1 S.C.R. 1104 and Braja
Sunder Deb v. Rajendra Narayan Bhanj Deo, (1937) L.R. 65 I.A. 57, referred to.
CIVIL APPELLATE JURISDICTION: CiVil Appeals
Nos. 422 & 423 of 1958.
433 Appeals from the judgment and decree
dated November 22, 1957, of the Allahabad High Court (Lucknow Bench), Lucknow,
in Civil Misc. Applications Nos. 54 and 56 of 1957.
Niamatullah, S. N. Andley and J. B.
Dadachanji for O. N. Srivastava, for the appellant.
H. N. Sanyal, Additional Solicitor-General of
India, Bishun Singh and C. P. Lal, for the respondent.
1959. December 14. The Judgment of S. K. Das
and A. K. Sarkar, JJ. was delivered by' Sarkar, J. Subba Rao, J. delivered a
SARKAR J.-Raja Udit Narain Singh was the
proprietor of Ramnagar estate, a big taluqdari in district Barabanki in Uttar
Pradesh, formerly known as the United Provinces of Agra and Oudh and for short
U.P., an abbreviation still in use. Ramnagar estate was governed by the Oudh
Estates Act (1 of 1869), and in the absence of any disposition by the holder
for the time being, it appears to have devolved according to the rule of
Raja Udit Narain died in 1927 leaving two
sons of whom the older was Raja Harnam and the younger Kanwar Sarnam. Kanwar
Sarnam died in 1928 leaving the respondent his only son, and a widow, Parbati
Kuer. Raja Harnam died thereafter in 1935 without issue, leaving the appellant
his sole widow.
After the death of Raja Harnam disputes arose
between the respondent, who was then a minor and was represented by his
certificated guardian, his mother Parbati Kuer, and the appellant, a reference
to which has now to be made.
The appellant's contentions appear to have
been as follows :
Raja Udit Narain left a will bequeathing
certain villages of Ramnagar estate to Raja Harnam absolutely and the rest of
it, as set out in a schedule to the will, to him for life and after him to
Kanwar Sarnam for life and thereafter or failing the latter, to the respondent
absolutely. The will declared that village Bichelka had been given to her for
life as " runumal " 434 or wedding present and that she would have a
maintenance of Rs. 500, per month out of the estate. The schedule to the will
did not mention five of the villages of Ramnagar estate with regard to which
Raja Udit Narain died intestate and these thereupon devolved on Raja Harnam
under the rule of primogeniture that applied to the estate. After Raja Udit
Narain's death, Raja Harnam went into possession of the estate and executed a
will leaving all the properties over which he had a power of disposition, including
the seven villages bequeathed to him absolutely by Raja Udit Narain and the
five villages not disposed of by his will, to her in absolute right.
Thereafter, Raja Harnam executed a deed of gift in her favour giving her most
of the immovable properties covered by his will and several house properties in
On these allegations the appellant made a
claim to all the properties said to have been given to her by the, aforesaid
wills and the gift of Raja Harnam. Parbati Kuer, on behalf of her son, the respondent,
challenged the factum and validity of the wills and the gift said to have been
made by Raja Harnam and resisted the appellant's claim. And so the disputes
between the parties arose.
The Deputy Commissioner of Barabanki
intervened to restore peace and brought about a family arrangement, into which
the parties entered on January 22, 1935, settling the disputes on the terms
therein contained. Under this family arrangement certain properties came to the
appellant but it is not necessary for the purposes of these appeals to refer to
them in detail.
The peace created by the family arrangement
did not last long. The respondent after attaining majority on September 12,
1940, repudiated the family arrangement on grounds to which it is unnecessary
On September 6, 1943, he filed a suit against
the appellant to set aside the family arrangement and recover from her the
properties of the estate in her possession. The defence of the appellant to the
suit was that the family arrangement was binding on the respondent. However, to
cover the eventuality of the 435 family arrangement being found to be void or
voidable, the appellant herself filed a suit against respondent claiming title
to various properties of the estate under the will of Raja Udit Narain and the
will and gift of Raja Harnam. The respondent contested this suit. With the
particulars of the claims and defences in the suits or their soundness we are
not concerned in these appeals, and a reference to them will not be necessary.
While these two suits were pending, the
appellant was on November 12, 1945, declared by the District Judge of Lucknow
under the provisions of the Lunacy Act, 1912, to be a person of unsound mind.
Thereupon the Court of Wards assumed superintendence of the properties of the
appellant under the provisions of the U.P. Court of Wards Act, hereinafter
referred to as the Act, and placed them in the charge of the Deputy
Commissioner of Barabanki district in which most of these properties were
situate. The Court of Wards gave to these properties the name Ganeshpur estate.
Upon such assumption of charge the -cause titles of the two suits were amended
and in the place of the appellant's name, the name " Deputy Commissioner,
Barabanki I/C Court of Wards, Ganeshpur estate " was substituted, such
amendment being required by the provisions of s. 55 of the Act the terms of
which we shall presently set out. The letters " I/C " in the
substituted name were an abbreviation of the words " in charge of."
Thereafter, the respondent's suit wasdismissed by a decree dated June 3, 1947,
except as to his claim to two villages, it being found that in them Raja Harnam
had only a life estate and to them the appellant had no claim after his death,
and that these had been given to her by the family arrangement by mistake. As
the family arrangement was substantially upheld by the decree in the
respondent's suit, the appellant's suit became unnecessary for it bad been
founded on the basis that the family arrangement was void or could be avoided.
It had therefore to be dismissed.
Two appeals were filed from the decisions in
these two suits in the High Court at Lucknow, one by the Deputy 436
Commissioner of Barabanki representing the estate of the appellant against the
decree dismissing the appellant's suit, being F.C.A. No. 99 of 1947, and the
other by the respondent, being F.C.A. No. 2 of 1948, against the decree
dismissing his suit. F.C.A. No. 99 appears to have been filed merely as a
matter of safety, to be proceeded with only in case the respondent's appeal,
F.C.A. No. 2 of 1948, succeeded.
While the appeals were pending, the
respondent made an application under the Act to have his estate placed under
the charge of the Court of Wards. That application was accepted and the
superintendence of his estate was taken over by the Court of Wards on February
8, 1950. The respondent's estate was also placed by the Court of Wards in the
charge of the Deputy Commissioner, Barabanki, as the estate was within his
jurisdiction. The Court of Wards retained for it its old name of Ramnagar
estate. The cause titles of the appeals had again to be amended in view of s. 55
of the Act and for the name of the respondent, the name " Deputy
Commissioner Barabanki I/C Court of Wards Ramnagar estate " was
substituted. The cause titles of the appeals then became, Deputy Commissioner,
Barabanki I/C Court of Wards Ganeshpur estate Appellant versus Deputy
Commissioner, Barabanki I/C Court of Wards Ramnagar estate Respondent AND
Deputy Commissioner, BarabankiI/C Court of Wards Ramnagar estate Appellant
versus Deputy Commissioner, BarabankiI/C Court of Wards Ganeshpur estate ...
The position thus was that the estates of
both the appellant and the respondent came under the superintendence of the
same Court of Wards and were placed in the charge of the same Deputy
Commissioner in whose name each party sued and was sued in the appeals. This
situation was the occasion for the 437 proceedings to be referred to presently,
from which these appeals arise. Before coming to these proceedings, certain
other facts have however to be stated.
On December 3, 1951, the Court of Wards
passed a resolution settling the appeals on certain terms as it thought that
such settlement was in the best interests of the two contending wards,
particularly in view of the heavy costs of the litigation and the then
impending legislation for abolition of zemindaries. Thereafter, under the
instructions of the Court of Wards, the lawyers appearing for the parties in
the appeals presented to the High Court on April 28,1952, petitions for
recording compromises in the appeals and for passing decrees in accordance
therewith. On May 2, 1952, the High Court passed orders directing the
compromises to be recorded and decrees to be passed in the appeals in terms
thereof. The appeals were thus disposed of and the proceedings therein
terminated. When the appeals were so compromised, the paper books in respect of
them were in the course of preparation.
It is not necessary to encumber this judgment
by setting out the terms of the compromise. It is however of some importance to
state that the petitions embodying thecompromise were signed twice by Mr. K. A.
P. Stevenson, once as Deputy Commissioner Barabanki, I/C Court of Wards,
Ramnagar estate, district Barabanki (Appellant in F.C.A. No. 2 of 1948 and
respondent in F.C.A. No. 99 of 1947)" and again as " I/C Court of
Wards, Ganeshpur estate, district Barabanki (Respondent in F.C.A. No. 2 of 1948
and appellant in F.C.A. No. 99 of 1947)". Obviously, Mr. Stevenson, the
Deputy Commissioner, Barabanki, signed each petition once as representing the
appellant and again as representing the respondent. It is also of some interest
to note that the petitions were presented in Court by Sri Sita Ram, Advocate
for the appellant's estate and Sri Bishun Singh, Advocate for the respondent's
Some more events happened before the
proceedings out of which these appeals arise were started. Shortly after the
compromise decrees had been passed, ail Act 56 438 abolishing zemindaries came
into force in U.P. and the zemindary estates of the parties vested in the
Government of U.P. Thereupon the Court of Wards ceased to function. In
anticipation of this situation the estates of the parties were released by the
Court of Wards. In view, however, of the appellant's mental incapacity, an
order was passed by the District Judge of Lucknow, on April 27, 1953, in the
lunacy proceedings, placing her estate in the charge of the Deputy
Commissioner, Barabanki and one Mr. M. L. Sarin and appointing them as the guardians
of her person and property.
A few years later, the appellant recovered
from her affliction and an order was passed by the District Judge, Lucknow on
October 6, 1956, declaring her to be of sound mind. Her aforesaid guardians
were thereupon discharged and she was put in possession of her properties.
After the appellant had regained her mental
competence, she began to entertain a feeling that the compromise in the appeals
had not done full justice to her and she set about to find a way to get out of
it. On January 14, 1957, the appellant made two applications to the High Court
at Lucknow, one in each of the said appeals Nos. 99 of 1947 and 2 of 1948, for
an order that the work of the preparation of the paper books of the said
appeals be resumed under Chapter XIII of the Rules of the High Court from the
stage at which it was interrupted by the compromise decrees, as those decrees
were a nullity and did not terminate the appeals which must therefore be deemed
to be pending. These applications were heard together by the High Court and
dismissed by its judgment and orders dated November 22, 1957. It is against
this judgment and the orders that the present appeals have been brought. These
appeals were consolidated by an order made by the High Court and they have been
heard together in this Court.
It is not the appellant's case that the
compromise was brought about by fraud or was otherwise vitiated on similar
grounds and is therefore liable to be set aside. No avoidance of the compromise
is sought. In fact, the appellant had initially alleged in her petitions 439
that the compromise had been brought about by fraud and collusion. She however
amended the petitions by deleting the paragraphs containing these allegations
and chose to proceed on the purely legal basis that the compromise was a
nullity. It is for this reason that we have not referred to the terms of the
compromise. No question arises in those appeals as to their fairness or as to
whether they should be avoided on any equitable ground.
If the compromise decrees were a nullity as
the appellant contends, then she would no doubt be entitled to proceed on the
basis as if they bad never been made and in that view her applications would be
competent and should succeed. The question is whether the compromise decrees
were a nullity.
The appellant first says that the compromise
decrees were a nullity as the terms of s. 56 of the Act which are mandatory,
had not been complied with. That section reads thus:
Section 56: When in any suit or proceeding
two or more wards being parties have conflicting interests, the Court of Wards
shall appoint for each such ward a representative and the said representative
shall thereupon conduct or defend the case on behalf of the ward whom he
represents, subject to the general control of the Court of Wards.
It is true that no representative had been
appointed under this section for either party for the purposes of the two
appeals. It is said that this omission to appoint representatives made the
compromise decrees a nullity as the terms of the section are imperative.
The question then is, is s. 56 imperative ?
In our view, it is not. It, no doubt, says that " the Court of Wards shall
appoint . . . . a representative." But it is well-known that the use of
the word " shall " is not conclusive of the question whether a
provision is mandatory: see Hari Vishnu Kamath v. Syed Ahmad Ishaque (1). The
intention of the legislature has to be gathered from the whole statute.
Several grounds are suggested why s. 56
should be held to be imperative. First, it is said that otherwise, (1) 1
440 in view of s. 55, it would be otiose.
Section 55 is in these terms:
Section 55: No ward shall sue or be sued nor
shall any proceedings be taken in the civil court otherwise than by and in the
name of the Collector in charge of his property or such other person as the
Court of Wards may appoint in this behalf.
It is said that the concluding words of s. 55
give the Court of Wards a discretionary power to appoint a representative and
therefore if s. 56 was only directory, then it would also give the same
discretionary power to appoint a representative and thus become otiose. The
contention seems to us to be ill founded. In order that one section may be
rendered otiose by a certain interpretation of another, that interpretation
must make the two sections deal with the same subjectmatter, the two must then
be serving the same purpose. The argument is founded on the basis that read as
an imperative provision s. 56 would not be otiose, that is, then it would be
serving a purpose different from that which s. 55 served. Now, we do not
appreciate how s. 56 becomes otiose by being read as a directory provision
while it would not be so if read as a mandatory provision. Surely, the
subject-matter of a statutory provision is not changed whether it is read as
directory or as mandatory. If it was not otiose as a mandatory provision, it
would no more be so as a directory provision. Another fallacy in this argument
is that it assumes that by reading s. 56 as a directory provision a discretion
is conferred on the Court of Wards to appoint or not to appoint representatives
for the wards, as it pleases.
A provision giving a discretionary power
leaves the donee of the power to use or not to use it at his discretion. A
directory provision however gives no discretionary power free to do or not to
do the thing directed. A directory provision is intended to be obeyed but a
failure to obey it does not render a thing duly done in disobedience of it, a
nullity. Therefore, it seems to us to be wrong to say that by reading s. 56 as
merely directory any discretion is conferred on the Court of Wards.
441 It also seems clear to us that ss. 55 and
56 deal with entirely different matters. Section 55 deals only with the name in
which a ward may sue or be sued. Section 56 deals with appointment of
representatives for two or more wards who are parties to a litigation and have
conflicting interests, to defend or conduct the case on behalf of the wards,
and s. 56 would apply whether the wards were sued in the names of the
Collectors in charge of their properties or in the names of persons appointed
for the purpose by the Court of Wards. There is nothing to show that the
representatives appointed under s. 56 are to be named in the record of the case
as representing the wards. The section does not say so Section 56 contemplates
a stage where two or more wards are already parties to a litigation. It
therefore contemplates the wards suing or being sued in the names of the
Collectors in charge of their properties or of other persons appointed under s.
55. Notwithstanding this, s. 56 does not provide that the representatives
appointed under it shall replace the Collector or the person appointed under s.
55 on the record of the litigation. Therefore it seems to us clear that if s.
56 is read as a directory provision, s. 55 would not become otiose.
Next it is said that ss. 57 and 58 of the Act
also deal with the appointment by the Court of Wards of representatives for the
wards in certain proceedings between them but in these sections the words used
are respectively "shall be lawful for the Court of Wards to appoint"
and "may appoint", while the word used in s. 56 is "shall"
and that this distinction clearly indicates that the intention of the
legislature is to make s. 56 imperative.
This argument also does not appear to us to
be sound. We are not satisfied that because a statute uses in some provisions
the word "shall" and in others the words "shall be lawful"
or "may", it necessarily indicates thereby that the provisions
containing the word "shall" are to be understood as mandatory
provisions. We think that each provision has to be considered by itself, and
the context in which the word "shall" occurs in it, the object of the
provision 442 and other considerations may lead to the view that in spite of
the use of the word "shall", it is a directory provision.
It seems to us that ss. 57 and 58 rather
indicate that if the appointments there contemplated are merely directory, the
appointments provided by s. 56 are also directory.
Section 57 empowers the Court of Wards when
any question arises between two or more wards of such nature that an
adjudication upon it by a court is expedient, to appoint a representative for
each ward and require the representatives so appointed to prepare a statement
containing the point or points for determination and to file the statement in a
civil court in the form of a case for the opinion of the court. The section
further provides that the civil court shall proceed to hear and dispose of the
case in the manner prescribed by the Code of Civil Procedure for the hearing
and disposal of suits and also that the case shall be conducted by the
representatives appointed for the wards subject to the general control of the
Court of Wards.
Section 58 empowers the Court of Wards when
it thinks that a dispute which has arisen between two or more wards is a fit
subject for reference to arbitration, to appoint a representative for each ward
and require the representatives to submit the dispute to the arbitration of a
person or persons approved by it. It would appear therefore that the position
of a ward is the same whether the case is governed by s. 56, s. 57 or s. 58. In
each case one ward has a dispute with another; in each their interests
conflict. In the first two cases, the conflict is submitted to the decision of
a civil court and in the third, to arbitration.
There is no reason to think that the
legislature intended that the interests of the wards required more protection
in a case falling under s. 56 than in a case falling under s. 57 or s. 58. If,
therefore, as the argument concedes, the appointment of representatives was not
intended by the legislature to be obligatory under ss. 57 and 58, no more could
the legislature have intended the appointment of representatives under s. 56
This leads us to the argument based on the
object of a. 56.
It is said that the object of the section is
to 443 protect the interests of the wards. Unless the terms of the section are
obeyed, it is contended, the wards' interests will suffer. So, it is said that
s. 56 must be construed as a mandatory provision. This argument overlooks that
part of s. 56 which makes the representatives appointed under it subject to the
general control of the Court of Wards in the discharge of their functions. It
is clear, therefore, that it is the intention of the legislature that the
interests of the wards should really be in the charge of the Court of Wards in
spite of the appointment of the representatives and in spite of the conflicting
interests of the wards. It follows that the direction to appoint
representatives has not been inserted in s. 56 to protect the conflicting
interests of the wards or to ensure such interests being properly looked after
by taking them out of the charge of the Court of Wards. It would indeed be
against the whole concept of the Court of Wards Act to hold that it
contemplated a situation where the interests of the wards would be taken out of
the hands of the Court of Wards while it retained charge of their estates. We
are, therefore, inclined to agree with the view of the learned Judges of the
High Court that " The reason for incorporating s. 56 in the Act appears to
have been with the idea of avoiding any embarrassment to the officers of the
Court of Wards who may have had the task in certain cases of representing rival
interests." There is thus nothing in the object with which s. 56 was
enacted to lead us to hold that its terms were intended to be imperative.
We may look at the matter from another point
of view. Under s. 15 of the Act, the Court of Wards, upon assuming the
superintendence of any property, is to nominate a collector or other person to
be in charge of it. Usually it is the Collector of the district, sometimes
called the Deputy Commissioner, in which the largest part of the property is
situate who is nominated for the purpose. In the present case, as it happened,
the estates of both the appellant and the respondent were situate in the same
district of Barabanki and had, therefore, been put in charge of 444 the same
officer, namely, the Deputy Commissioner of that district. Now, it may so
happen in another case that the estates of the wards are in charge of different
Collectors or Deputy Commissioners. To such a case also s. 56 would be
applicable if the two wards happened to be parties to a litigation with
conflicting interests. It would be strange if in such a case any decree that
came to be passed had to be held to be a nullity because the terms of that section
had not been complied with. It could not, of course, then be said that the
interests of the wards had been prejudiced by the omission to appoint
representatives under s. 56, for, there would in such a case be no difficulty
for the Collectors to look after the interests of their respective wards in the
best way possible. This view of the matter also seems to indicate that s. 56 is
We have now examined all the arguments
advanced in support of the view that s. 56 is an imperative provision. We find
them without any force. The question whether a statute is imperative or
otherwise is after all one of intention of the legislature. The rules of
interpretation are for discovering that intention. We have not found any rule
which would lead us to hold that s. 56 was intended to be an imperative
provision. The section serves no purpose except the removal of practical
inconvenience in the conduct of a suit or its defence. By providing that the
representatives shall be subject to the control of the Court of Wards, the
section makes it clear that in spite of the appointment of the representatives
the Court of Wards retains all powers in respect of the litigation. Such powers
are given to the Court of Wards by the Act itself. Under s. 38, the Court of Wards
has the right to do all things which it may judge to be for the advantage of
the ward. One of such powers is to conduct a litigation on behalf of a ward, in
any manner it thinks best in the interests of the ward it could therefore
compel the representatives to settle the litigation on terms decided by it. If
it could so compel the representatives, it would be insensible to suggest that
it could not itself effect the settlement.
445 Clearly, the Court of Wards could itself
settle a litigation in which two of its wards were involved even where
representatives had been appointed under s. 56. The appointment of
representatives could not hence have been intended to be obligatory. In our
view. therefore, the section is clearly directory. The failure to observe the
provisions of the section did not render the compromise decrees in this case a
It is then said that there was in law no
compromise in this case, A compromise, it is said, is a contract and in order
that there may be a contract 'there must be two parties to it which there was
not in this case. It is contended that there was only one party in the present
compromise, namely, the Deputy Commissioner, Barabanki.
It is true that there must be two parties to
make a contract. But it seems to us that the contention that there was only one
party to the compromise proceeds on a misconception of its real nature. It
overlooks that the compromise was really between the two wards, the appellant
and the respondent. The compromise was brought about by the Court of Wards in
-exercise of its statutory powers. That the Court of Wards could make a
compromise on behalf of a ward is clear and not in dispute. It does not lose
its powers when it has two wards and can therefore make a compromise between
them. When it does so, it makes a contract between the two of them. Therefore,
to the present compromise there were two parties. The act expressly
contemplates a right in the Court of Wards to make a contract between two of
its Wards. Thus under s. 61(1) of the Act, a contract executed by the Court of
Wards for a ward may be executed in its own name or on behalf of the ward.
Under sub-sec. (3) of that section, when the transferor and transferee are both
its wards, the Court of Wards shall have power to enter into convenants on
behalf of the transferor and the transferee respectively. Sub-section (2) of s.
61 provides that the convenants made by the Court of Wards on behalf of a ward
shall be binding on the ward.
If the Court of Wards did not have the power
to make a contract between two of its wards, it would 57 446 often be
impossible to carry on the management of the wards' properties beneficiently.
The power of the Court of Wards to make a contract for a ward is a statutory
power. We find nothing in the Act to indicate that such power does not exist
for making a contract between two wards.
It is true that the cause titles of the
appeals showed the Deputy Commissioner, Barabanki, as both the appellant and
the respondent. But that did not make the Deputy Commissioner himself a party
to the appeals. There, of course, cannot be a litigation unless there are two
parties to it. It will be remembered that in the cause titles the Deputy
Commissioner, Barabanki, was described once as in charge of Ganeshpur estateand
again as in charge of Ramnagar estate. This indicates that the Deputy
Commissioner was mentioned in the cause titles as representing the the two real
parties, i.e., the appellant and the respondent.
Then again the Deputy Commissioner,
Barabanki, was brought on the record because of s. 55 of the Act. The terms of
that section have been set out earlier and they leave no doubt that the person
Suing Or being sued is the ward and that the ward is suing or being sued in the
name of the Collector. Therefore also when the appeals were compromised, the
compromise was between the parties to the appeals, namely, the appellant and
the respondent. It was not a compromise which the Deputy Commissioner,
Barabanki, made with himself though he alone signed the compromise petition. The
contention that there was no compromise in this case because there were not two
parties, must hence fail.
It is lastly said that the compromise decrees
were a nullity in view of the principles embodied in Or.XXXII of the Code of
Civil Procedure. That order deals with minors and persons of unsound mind and
requires that when any such person is a party to a suit, the Court will appoint
some one to be his guardian for the suit. It is true that it is necessary that
the person appointed as guardian should have no interest in the litigation
against the person under disability. It is 447 contended on behalf of the
appellant that she was a person of unsound mind and so some disinterested
person should have been appointed her guardian for the appeals and that the
Deputy Commissioner, Barabanki, was not such a disinterested person as he was
also interested in the respondent, the opposing party in the appeals. It is
said that the decrees passed in the appeals without another guardian having
been appointed for the appellant are a nullity.
Now, Or. XXXII, r.4(2) provides that where a
person under disability has a guardian declared by a competent authority, no
other person shall be appointed his guardian unless the Court considers for
reasons to be recorded, that it is for the welfare of the person under
disability that another person should be appointed as his guardian. Section 27
of the Act gives the Court of Wards the power to appoint a guardian for a ward
who is of unsound mind. The Deputy Commissioner, Barabanki, was in fact
appointed the guardian of the appellant under the Act when upon her lunacy, her
estate came under the superintendence of the Court of Wards.
Her estate was in his charge. Therefore,
under the provisions of Or. XXXII, r. 4, the Deputy Commissioner, Barabanki,
was entitled to act as the appellant's guardian for the appeals and the Court
had not made any order a pointing another person to be her guardian. The Court
of Wards is a statutory body and was created to look after the interests of the
wards. Its constitution is such that it can be trusted to be impartial. Its
position is wholly different from that of a private guardian. No fault can be
found with the Court in having left the interests of the appellant in charge of
the Court of Wards though it was also in charge of the interests of the
respondent. Indeed, it is at least arguable if the civil court could have by
any order that it might have made, prevented the Court of Wards from
discharging its statutory duty of looking after the interests of its ward.
Therefore it seems to us that the failure of the Court to appoint another
person as the guardian of the appellant for the suits or the appeals did not
make the compromise decrees a nullity.
448 One other point raised on behalf of the
appellant remains to be considered. It is said that in fact there was no
compromise between the two wards. Now, this is a question of fact and was not
raised in the High Court. The respondent had no chance of meeting the
allegation of fact now made. We also have not the advantage of the views of the
High Court on this question of fact. It would be unfair to the respondent to
allow such a question to be raised now.
However that may be, we are satisfied that
there was in fact a compromise made between the two wards by the Court of
Wards. Our attention has been drawn to the resolution passed by the Court of
Wards directing the compromise to be made. That, in our opinion, brought about
the compromise between the two wards; it was the only way in which the Court of
Wards could -have brought about the compromise. We may also point out that the
compromise petitions were signed by the Deputy Commissioner, Barabanki, twice,
once for each of the parties, and had been 'put into court by the lawyers
respectively engaged for the parties for the purpose. We, therefore, think that
the contention that there was in fact no compromise is entirely without force.
In our opinion, these appeals must fail and
they are therefore dismissed with costs.
SUBBA RAO J.-I have had the advantage of
perusing the judgment of my learned brother, Sarkar, J. I regret my inability
to agree with him.
The facts of the case and the progressive
stages of the litigation are fully stated in the judgment of my learned
brother, and it is not necessary to restate them here in detail. It would
suffice if the factual basis giving rise to the main controversy in the case be
The appellant was the owner of Ganesbpur
estate and the respondent of Ramnagar estate. Both of them became wards of the
Court of Wards and both the estates were under the management of the Deputy
Commissioner, Barabanki. Between the two estates there was litigation andat the
crucial point of time, 449 two appeals, being F.C.A. No. 99 of 1947 and F.C.A.
No. 2 of 1948, were pending on the file of the High Court at Allahabad. The
cause-titles in the appeals give the following array of parties F.C.A. No. 99
of 1947 Deputy Commissioner, Barabanki, I/C Court of Wards, Ganeshpur estate,
district Barabanki. Appellant versus Deputy Commissioner, Barabanki, I/C Court
of Wards, Ramnagar estate, district Barabanki. Respondent F.C.A. No. 2 of 1948
Deputy Commissioner, Barabanki, I/C Court of Wards, Ramnagar estate, district
Barabanki. Appellant versus Deputy Commissioner, Barabanki, I/C Court of Wards,
Ganeshpur estate, district Barabanki. Respondent It is clear from the said
array of parties in the appeals that the same person represented both the
estates, and the Deputy Commissioner, Barabanki, was both the appellant and
respondent. It appears that the Court of Wards effected a settlement between
the two wards in respect of the outstanding disputes between them, and,
presumably as directed by the Court of Wards, the Deputy Commissioner,
Barabanki, filed a petition in the High Court for recording the compromise. The
petition was signed by Sri K. A. P. Stevenson, I.A.S., Deputy Commissioner,
Barabanki, on behalf of both the estates. On May 2, 1952, the High Court passed
a decree in terms of the said compromise.
The said facts give rise to a short but difficult
question, namely, whether the compromise effected was a nullity entitling the
appellant to ignore it and to have the appeals disposed of on merits.
The main argument of Mr. Niamatullah, the
learned Counsel for the appellant, may be summarized thus: Section 56 of the
U.P. Court of Wards Act, 1912 450 (hereinafter called the Act) imposes a
statutory duty on the Court of Wards to appoint separate representatives when
in a suit there are conflicting claims between two of its wards, and the Court
has no jurisdiction to proceed with such a suit and make any order or decree on
merits or on compromise unless such an appointment is made. In the present
case, admittedly no such appointment was made and the compromise petition was
filed by the Deputy Commissioner, Barabanki, in his dual capacity as the
appellant as well as the respondent, and, therefore, the decree made therein
was a nullity. If it was a nullity, the argument proceeds, the Court should
ignore it and dispose of the appeals as if they were still on its file.
This argument, if accepted, would entail the
acceptance of the appeals. As I propose to do so, it is unnecessary to
particularize the other contentions of the learned Counsel or give my findings
thereon. For the same reason, the counter-argument of the learned Additional
Solicitor General may conveniently be confined only to the said argument.
While conceding that the application under s.
151 of the Civil Procedure Code was maintainable if the decree was a nullity,
the learned Counsel for the respondent contends that notwithstanding the
non-compliance of the provisions of s. 56 of the Act, the High Court had
jurisdiction to record the compromise lawfully effected by the Court of Wards,
and therefore, the decree was not a nullity and could not be ignored.
The question falls to be decided on a true
interpretation of the provisions of s. 56 of the Act. Section 56 appears in
Chapter VII of -the Act dealing with suits. It would be convenient at the
outset to read ss. 55 and 56 of the Act.
S. 55: "No ward shall sue or be sued nor
shall any proceedings be taken in the civil court otherwise than by and in the
name of the Collector in charge of his property or such other person as the
Court of Wards may appoint in this behalf." S. 56: " When in any suit
or proceeding two or more wards being parties have conflicting interests, 451
the Court of Wards shall appoint for each such ward a representative and the
said representative shall thereupon conduct or defend the case on behalf the
ward whom he represents, subject to the general control of the Court of
Wards." These two sections are placed in juxtaposition and they appear to
be complementary to each other. Section 55 prescribes the mode or proceeding by
or against the ward in a court. Ordinarily, he should sue or be sued in the
name of the Collector in charge of his pro. perty. It also visualizes the
contingency when a Court of Wards may appoint in its discretion some other
person instead of the Collector for the Purpose of this section. Buts. 56 deals
with a particular situation, namely, when there are conflicting interests
between the wards who are parties to a suit, and, in that event, a duty is cast
on the Court of Wards to appoint separate representatives for each such ward.
The object of s. 56 is self evident; for, in the contingency contemplated by
that section, an anomalous situation is created, if the general rule prescribed
by s. 55 is followed, for both the plaintiff and the defendant would be the
Collector, a procedure that cannot be tolerated by any civilised jurisprudence.
That apart, the procedure is obviously detrimental to the interests of the
wards, for there is every danger of their respective interests not being
protected and properly represented in the court. To avoid this anomaly and obvious
prejudice to the parties, s. 56 has been enacted. A combined reading of the
said provisions therefore indicates that the procedure, laid down in s. 55
must, in the contingency contemplated by s. 56, give way to the procedure
prescribed by the latter section.
The next question is what does the word
" representative " in s. 56 mean ? Does it mean, as the learned,
Additional Solicitor General contends, an agent who is entrusted with the duty
of assisting the Collector, or., as the learned Counsel for the appellant
argues, one who represents the ward in a suit by being brought on record as his
representative ? The word " representative " has in law different
meanings. To represent means " to stand in place of " and a
representative 452 is one, who stands in the place of another. The word " representative
" with prefixes like legal' or personal' added or not, when used with
reference to ownership of land may mean an heir, executor or legatee. But in
the context of a suit, the word is also used in the sense that, one who
represents another, when the latter is a disqualified person like a minor or a
lunatic. In this category come guardians.
They are appointed by court to represent a
minor or a lunatic, as the case may be, and the suit without such representative
cannot legally proceed. But a statute may confer power upon an authority other
than the court to appoint a representative to a disqualified person. That is
the position in the present case. A statutory representative acts for, and in
the place of, a disqualified ward and without such valid representative on
record the suit cannot legally proceed, just like in the case of a minor or a
lunatic to represent whose interests no guardian is appointed. If the intention
of the legislature was only to provide for the appointment of a separate agent
to help the Collector, who had a dual role to perform, it would have used the
word " agent " in the section. That apart, the Collector does not
require the statutory power to appoint an agent to help him in the conduct of a
suit; for, as a party to the suit, he can always appoint separate Advocates for
the two wards. That the word " representative" does not mean an agent
but is intended to convey the idea of one representing a ward and as such
brought on record in that capacity, is made clear by the other provisions of
the Act wherein the same word appears. Section 57 of the Act reads:
" (1) Where any question arises as
between two or more wards of such nature that an adjudication upon it by a
civil court is expedient, it shall be lawful for the Court of Wards to appoint
a representative on behalf of each ward. The representative so appointed shall
prepare a statement containing the point or points for determination and shall
on behalf of the said wards file the statement in a civil court having
jurisdiction in the form of a case for the opinion of the said court, 453 (2)
The civil Court shall then proceed to hear and dispose of the case in the
manner prescribed by the Code of Civil Procedure, 1908, for the hearing and disposal
(3) The case shall be conducted on behalf of
the wards by their representatives appointed under subsection (1) of this
section subject to the general control of the Court of Wards." It is
manifest from this section that the duty of the representative under s. 57 is
not to act as a clerk or an assistant to the ward but to represent him in the
proceedings. He would be on record representing the ward and it is impossible
to contend that the proceedings under s. 57 of the Act can either be initiated
or disposed of without a representative being appointed in that behalf.
Section 58 of the Act reads:
"When it appears to the Court of Wards
that any question or dispute arising between two or more wards is a fit subject
for reference to arbitration, it may appoint a representative on behalf of each
such ward and require the said representatives to submit the question or
dispute to the arbitration of such person or persons as it may approve."
Under this section also the appointment of a representative on behalf of each
ward is a pre-requisite for the initiation and conduct of arbitration
proceedings. Here also the representative is not appointed to assist the ward
but to represent him in the proceedings. It is a well-known rule of
construction that a similar meaning should be given to the word "
representative " in the Act unless the context requires otherwise. The
object of the appointment of a representative under ss. 56, 57 and 58 -of the
Act is the same and the same meaning should be given to that word, namely, that
the representative appointed is one who represents the ward in the proceedings
and is brought on record as such.
Laying emphasis on the word " conduct
" or defend " in s. 56 of the Act and on the omission of the word
" compromise " therein, it is contended that the representative
appointed there under has no 58 454 power to' enter into a compromise. The
section does not, in my-View, bear out this construction. The first part of the
section enjoins on the Court of Wards to appoint a representative to each of
the wards and then the second part proceeds to state that such a representative
should thereupon conduct or defend the case. The later part of the section does
not define the meaning of the word " representative " and limit its
scope, but only brings out the idea that the suit shall not proceed till such a
representative is appointed. A person appointed to represent a disqualified
person shall have all the powers of a party subject to the limitations imposed
by relevant statutes and the only limitation imposed by s. 56 of the Act is
that the said representative is subject to the general control of the Court of
Wards. It follows that the representative can enter into a compromise subject,
to the general control of the Court of Wards. Assistance is sought to be
derived by the Additional Solicitor General from decisions distinguishing
between the powers of a Solicitor and a Counsel and holding that a Solicitor
being only a representative cannot enter into a compromise without the consent
of the client, while the latter being in charge of the entire litigation can do
so. In my view these decisions are based upon the peculiar characteristics of
the two branches of the profession and cannot legitimately be invoked to
construe the provisions of s. 56 of the Act.
Nor the fact that the representative
appointed under s. 56 of the Act is subject to the general control of the,
Court of Wards can be relied upon to subvert the operation of the section
itself. The question of control arises only after a representative is appointed
and the appointing authority cannot obviously ignore its statutory duty and
purport to exercise the duties of representatives in exercise of its power of
general control over non-existent representatives.
Assuming that the representative has no power
to compromise the suit, it does not materially affect the ,question raised in
this case. In that view the authority empowered to do so has to effect the
compromise, put the same in court through the representatives and 455 obtain a
decree thereon. But that does not dispense with the appointment of
representatives to conduct and defend the suit, for without such representation
the suit itself could not be proceeded with and a decree could not be obtained
on the compromise.
Lastly, it is said that the provisions of the
section are directory and noncompliance thereof would not affect the validity
of the compromise decree, if in fact the compromise was effected bona fide by
the competent authority. The word " shall " in its ordinary import is
"obligatory ", but there are many decisions wherein the courts under
different situations construed the word to mean " may ". The High
Court in this case relied upon the observations of this Court in Jagan Nath v.
Jaswant Singh (1) which run as follows:
" It is one of the well recognized rules
of interpretation that a provision like this should be held to be non mandatory
unless non-compliance with the provisions was visited with some penalty."
A perusal of the judgment does not disclose that this Court has laid down any
such inflexible rule of construction. It was construing the word " shall
" in s. 82 of the Representation of the People Act, 1951,' which lays down
that a, petitioner shall join as respondent to his petition all the candidates
who were duly nominated at the election other than himself. Having regard to
the other provisions of the Act, particularly to s. 85 thereof, and the
construction put upon a similar word in Order XXXIV, rule 1, of the Civil
Procedure Code, this Court held that the word " shall " in s. 82 was
only directory. This Court did not purport to lay down any broad proposition
that whenever the word " shall " is used in a statute it should be
construed as directory unless non-compliance with the provision is made penal.
Nor the decision in The Queen v. Ingall (2) lays down any such wide rule of
construction. Under s. 42 of Valuation (Metropolis) Act, 1869, provision is
made for the performance of several acts within the times prescribed therein.
Every matter connected with the valuation must be transacted before the 31st of
March, for the (1) (1954) S.C.R. 892, 901.
(2) (1876) Q.B.D. 199, 207 456 list comes
into force on the 6th April. But there are other sections where under provision
is made for preparing the valuation lists where there has been omission to make
them according to the requirements of the Act. The observance of times is not
enforced by penalties. The Court held that, notwithstanding the use of the word
"shall " in s. 42 of the Valuation (Metropolis) Act, 1869, the
provision is only directory. In construing the provisions in such a manner,
Lush, J., observed:
" We ought to look at the object which
the legislature contemplated in passing the Valuation (Metropolis) Act, 1869
But we must, in construing the Act, strike a balance between the inconvenience
of holding the list to be null and void and the risk of allowing injury to be
done by the delay in making the list; the former seems to me the greater evil,
and therefore in my opinion we ought to hold the list to be valid." This
judgment is, therefore, an authority for the position that the intention of the
legislature should be gathered from the object of the Act and also by striking
a balance between the possible inconvenience that would be caused in accepting
the one or other of the views. The decision in Caldow v. Pixwell (1) deals with
the provisions of s. 29 of the Ecclesiastical Dilapidations Act, 1871, which
says that within three calendar months after the avoidance of any benefice, the
bishop shall direct the surveyor, who shall inspect the buildings of such
benefice, and report to the bishop what sum, if any, is required to make good
the dilapidations to which the late incumbent or his estate is liable. It was
held that the provisions as to the time within which the bishop is to direct
the surveyor to inspect and report upon the buildings of a benefice after its
avoidance is directory only, and not imperative; and that a direction to
inspect and report made by a bishop more than three months after the avoidance
of a benefice may be valid.
Denman, J., restates the following rules of
guidance for construing such provisions: (i) The scope and object of a statute
(1) (1876) a C.P.D. 562.
457 are the only guides in determining
whether its pro. visions are directory or imperative; (ii) in the absence of an
express provision the intention of the legislature is to be ascertained by
weighing the consequences of holding a statute to be directory or imperative;
and (iii) the statute imposes a public duty upon the Bishop, and it does not
create a power or privilege for the benefit of the new incumbent as a private
person. On those grounds, among others, the learned Judge held that the
provision was only directory. Venkatarama Ayyar, J., in Hari Vishnu Kamath v.
Syed Ahmad Ishaque (1) made the following
" They (the rules) are well-known, and
there is no need to repeat them. But they are all of them only aids for
ascertaining the true intention of the legislature which is the determining
factor, and that must ultimately depend on the context." In Craies on
Statute Law, 5th Edn., the following passage appears, at p. 242:
"No universal rule can be laid down as
to whether mandatory enactments shall be considered directory only or
obligatory with an implied nullification for disobedience. It is the duty of
Courts of Justice to try to get at the real intention of the legislature by
carefully attending to the whole scope of the statute to be construed."
Bearing the aforesaid principles in mind let us look at the provisions of s. 56
of the Act. The object of s. 56 of the Act is to prevent the anomaly of the
same person occupying a dual role of plaintiff and defendant and to provide for
an effective machinery to safeguard the interests of the wards who are placed
under the supervision of the Court of Wards.
Should it be held that the appointment of a
representative was at the discretion of the Court of Wards, the entire object
of the section would be defeated. A person for whose 'benefit the provision was
conceived would be represented by the opposite party, a situation anomalous in
On the other hand, no evil consequences can
ordinarily be expected to flow if the provision be (1) (1955) 1 S.C.R. 1104,
458 construed as mandatory. A statutory body
like the Court of Wards can be relied upon to discharge the duties cast upon it
by s. 56 of the Act. Even if it fails, the suit or the appeal, as the case may
be, will be heard on merits or a fresh compromise may be effected after
following the prescribed procedure. The balance of convenience is on the side
of the provision being construed as mandatory rather than as directory. In the
circumstances, I must hold that the intention of the legislature is to make the
provision mandatory and therefore the word "shall" cannot be
construed as "may" as contended by the learned Counsel for the
I cannot accept the contention of the learned
Additional Solicitor General that even though s. 56 is mandatory, the
non-compliance of the provisions of the section does not affect the validity of
the compromise. If, as I have held, the appeal could not be proceeded with
without the statutory representative on record, the whole proceeding, including
the passing of the compromise, without such representative, was null and void.
Before closing the discussion, a reference to
the decision of the Judicial Committee in Braja Sunder Deb v. Rajendra Narayan
Bhanj Deo (1) is necessary, as strong reliance is placed upon it in support of
the contention that noncompliance of the mandatory provision of s. 56 would not
affect the validity of the compromise decree. There a suit between Raja
Rajendra Narayan Bhanj Deo and Raja Braja Sunder Deb, who became the ward of
the Court of Wards after the institution of the suit, was compromised. The
compromise petition was put in the Court and a decree was made thereon. Before
the High Court, for the first time, a technical objection was taken. The
Subordinate Judge decreed the suit in terms of the compromise and a formal
decree dated December, 22, 1922, was drawn and in the cause title of the decree
the manager of the Court of Wards was shown as second defendant while he should
have been described as the -representative of the first defendant.
But in (1) (1937) L.R. 65 I.A.57.
459 the body of the decree it was clearly
mentioned that the manager of the Court of Wards had been substituted as
guardian for the ward. It was contended therein for the appellant that as the
manager of the Court of Wards was made an additional defendant and not made a
guardian ad litem of the appellant, the compromise decree in the suit was not
binding on him. The Judicial Committee negatived the contention and held that
if the proper parties were on the record and were dealt with on the correct
footing, the mere want of formality would not make void the bargain of the
parties and the decree of the Court. But in the present case, a mandatory
provision had not been complied with and the suit proceeded with the Collector
as both the plaintiff and defendant. The wards were not represented by their
separate representatives for the simple reason that no representatives were
appointed. There is no analogy between that decision and the present case.
For the aforesaid reasons I hold that the
compromise decree was a nullity and the appeal must be deemed to be pending on
the file of the High Court.
In this view, I am relieved of the duty of
expressing my opinion on the other questions raised and seriously argued,
namely, whether the Court of Wards has power to settle conflicting disputes
between two wards and whether such a settlement would be a lawful agreement
within the meaning of Order XXIII, rule 3 of the Code of Civil Procedure.
In the result, the order of the High Court is
set aside and it is directed to dispose of the appeals in accordance with law.
The appellant will have his costs here and in the High Court.
By the Court:-In accordance with the opinion
of the majority, the appeals stand dismissed with costs.