Full Judgment Text
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PETITIONER:
RANI DRIG RAJ KUER
Vs.
RESPONDENT:
RAJA SRI AMAR KRISHNA NARAIN SINGH
DATE OF JUDGMENT:
14/12/1959
BENCH:
DAS, S.K.
BENCH:
DAS, S.K.
SARKAR, A.K.
SUBBARAO, K.
CITATION:
1960 AIR 444 1960 SCR (2) 431
ACT:
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
representatives- Settlement 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.
HEADNOTE:
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
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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 repre-
sented 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 non-
compliance therewith vitiated the proceedings. The inten-
tion 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, [1954] 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, [1955]
1 S.C.R. 1104 and Braja Sunder Deb v. Rajendra Narayan Bhanj
Deo, (1937) L.R. 65 I.A. 57, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: CiVil Appeals Nos. 422 & 423
of 1958.
433
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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 separate judgment.
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 primogeniture.
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 Lucknow.
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.
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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 to refer.
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 was- dismissed 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
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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 ... Respondent.
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 paperbooks 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 the-
compromise 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 estate.
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
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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 paperbooks 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
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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)[1955] 1 S.C.R. 1104.
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 subject- matter, 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 represen-
tatives appointed under s. 56 are to be named in the record
of the case as representing the wards. The section does not
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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 obligatory.
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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 not imperative.
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
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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 nullity.
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
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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 estate- and 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
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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 stated.
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 and- at 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
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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
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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 selfevident; 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 "
reprsentative " 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
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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 of suits.
(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
thereunder 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
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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
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456
list comes into force on the 6th April. But there are
other sections whereunder 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 observ. ations:
" 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."
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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 the extreme.
On the other hand, no evil consequences can ordinarily be
expected to flow if the provision be
(1) (1955) 1 S.C.R. 1104, 1126.
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
respondent.
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 non-
compliance 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
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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.
460