Judgement Consolidated Appeal from a decree of the above Court (May 19, 1898) reversing a decree of the Additional Civil Judge of Lucknow (July 18, 1895) and dismissing the appellants suit. The suits were brought to eject the respondents from certain villages on the ground that the action of the Deputy Law. Rep. 28 Ind. App. 190 ( 1900- 1901) Raja Mohammad Mumtaz Ali Khan V. Sakhawat Ali Khan 84 Commissioner, detailed in the judgment of their Lordships, did not operate to confer title upon them as against the appellant. The written statements defended the title as a gift to the respondents. The 10th paragraph was the same in both, and ran as follows " The defendant is the legitimate son of the real proprietor, Rajah Riasat Ali Khan. The arrangement under which the Deputy Commissioner of Gonda or superintendent of the Court of Wards granted to the defendant the village in dispute, in view of the proper maintenance allowance, was in accordance with the arbitration award and decree of 1866, and was made in good faith and for the benefit of the estate, and when the local government, as head of the Court of "Wards, has confirmed this arrangement, the plaintiff has no right to institute such a suit, vide s. 172, Act XVII. of 1876." The decree of 1866 terminated a suit brought by Madaro as guardian for her sons, the respondents who claimed title to the estate of the deceased Rajah of Utraula as his legitimate sons. It dismissed the suit, but awarded maintenance to Madaro and the two respondents. In 1883 the Chief Commissioner sanctioned proposals made by the Court of Wards to substitute for the maintenance allowance to the respondents two villages belonging to the estate and yielding a profit rental equal to or in excess of the said allowance. The Deputy Commissioner directed the immediate delivery to them of the villages in suit and the execution of conveyances granting them a heritable interest. On coming of age the appellant, who was a posthumous legitimate son of the deceased Rajah, refused to recognise this gift of the villages in respect of which possession had been given, but no conveyances had been executed; and accordingly sued in ejectment. The First Court gave him a decree. On coming of age the appellant, who was a posthumous legitimate son of the deceased Rajah, refused to recognise this gift of the villages in respect of which possession had been given, but no conveyances had been executed; and accordingly sued in ejectment. The First Court gave him a decree. The Court of the Judicial Commissioner reversed it, the material passage of its judgment being as follows — " The only question to be decided in these appeals is whether or not the Deputy Commissioner was acting within his powers as representing the Court of Wards in making over the villages to them (the present respondents).....The defendants had certainly a claim to maintenance (under the award) when the villages were made over to them, and it was for the benefit of the minor that such claims should be settled. Sect. 172, Act XVII. of 1876, provided that the Court of Wards shall have power to give such leases or farms of the whole or part of the immovable property under its charge, and to mortgage or sell any part of such property, and to do all such other acts as it may judge to be most for the benefit of the property and the advantage of the disqualified proprietors. If the Court of Wards, therefore, honestly thought it was for the advantage of the estate that the defendants claims should be settled by making over the villages to them, the Deputy Commissioner acted within his authority when he did so. If the Court of Wards, therefore, honestly thought it was for the advantage of the estate that the defendants claims should be settled by making over the villages to them, the Deputy Commissioner acted within his authority when he did so. Had there been no award or decree—as the estate is one of considerable importance, and the defendants, as brothers of the taluqdar, had a claim on him for maintenance—I do not think it could be held that the grant of the villages to them in lieu of their claims was not proper, or that it was not for the advantage of the estate and its owner that a reasonable and suitable provision should be made for them in accordance with the custom of the family.....I do not think that, as the villages were made over to the defendants in lieu of their claims for maintenance, it was necessary the transfer should have been made by a formal document." De Gruyther, for the appellant, contended that this construction of s. 172 was erroneous, and that the Court was wrong in finding that a valid title to retain possession of the villages had been conferred on the respondents by the act of the Court of Wards. The title to the taluqa was finally settled by the Law. Rep. 28 Ind. App. 190 ( 1900- 1901) Raja Mohammad Mumtaz Ali Khan V. Sakhawat Ali Khan 85 decree of 1866, and the respondents rights were thereby limited to maintenance allowances for their respective lives only. There was no claim under the decree enforceable against the estates; even if there were, it did not justify an alienation of any specific portions thereof. Irrespective of the decree, the grant could not bind the appellant as having been made in the proper exercise of the Deputy Commissioners discretion. Nor could any title be derived by the respond ents from the informal proceedings adopted. A registered instrument in writing was essential in order to confer title. The respondents did not appear. The judgment of their Lordships was delivered by SIR FORD NORTH. The appellant in these consolidated appeals is the taluqdar of Utraula, or Bilaspur, a posthumous son of the Rajah Riasat Ali Khan, who died in the year 1865. A registered instrument in writing was essential in order to confer title. The respondents did not appear. The judgment of their Lordships was delivered by SIR FORD NORTH. The appellant in these consolidated appeals is the taluqdar of Utraula, or Bilaspur, a posthumous son of the Rajah Riasat Ali Khan, who died in the year 1865. Before the appellant was born, Musammat Madaro, as guardian of her two sons, the respondents, took proceedings on their behalf to recover the estates of the late Rajah, alleging that her sons were his legitimate children. After the appellant appeared upon the scene, an agreement was drawn up, with the consent of the Court, by which it was left to arbitrators to decide an issue whether the appellant could be the sole heir to the late Rajahs entire property under the custom of the country ; or whether the respondents could also be successors to it; and, if so, what was the portion to which they and their mother would be entitled. The arbitrators made an award dated December 17, 1865, whereby they foun that the appellant and his mother Dan Bibi were according to the custom of the country proprietors and heirs of the entire estate and property of the late Rajah, and the respondents and their mother Bibi Madaro could not share in the inheritance ; that the respondents mother should receive Rs.60 per month for maintenance, to be allocated thus — Rs.10 per month to Bibi Madaro, Rs.30 per month to Farhat Ali Khan, and Rs.20 per month to Sakhawat Ali Khan, and that such payment should continue for six years, after which time the Government should propose what they should have for their support. And the arbitrators also awarded that when both the respondents were grown up and attained the age of discretion they should have villages separated for them according to their stipend, after deduction therefrom of the Government revenue. On December 21, 1865, the action came on again before Major Boss, the Deputy Commissioner of Gonda; and he, stating that the award appeared to him fair and equitable, dismissed the claim for the estate, but decreed maintenance to Bibi Madaro and the respondents on the terms of the award, namely, Bibi Madaro Rs.10, Farhat Ali Rs.30, and Sakhawat Ali Rs.20—total, Rs.60. This order was affirmed by the Commissioner of the Fyzabad Division on August 11, 1866, and by the Judicial Commissioner of Oudh on January 2, 1867. It will be observed that the award went beyond the reference, so far as relates to the allotment of two villages to the respondents. That portion of the award was not dealt with by the order of December 21, 1865; and the Commissioner on the appeal pointed out that the Lower Court had rejected so much of the award as related to matters not referred to arbitration. This, however, cannot apply to the allowance of Rs.60 per month for maintenance, which was expressly decreed by the order of December 21, 1865. Law. Rep. 28 Ind. App. 190 ( 1900- 1901) Raja Mohammad Mumtaz Ali Khan V. Sakhawat Ali Khan 86 By reason of the infancy of the appellant, his estates were from the first under the management of the Court of Wards ; and on May 25, 1883, while he was still a minor, but after the death of the Bibi Madaro, and the attainment of twenty-one by both the respondents, the then Deputy Commissioner at Gonda, Mr. White, wrote to the Commissioner of the Fyzabad Division, pointing out that certain arrears of maintenance were due to the respondents. He also proposed to put an end to the cash allowances they had theretofore received, and to assign to them each a village for maintenance, choosing for the elder, Farhat Ali, one which would give him Rs.500 or Rs.600 per annum, and for the younger, Sakhawat Ali, a village producing Rs.350 or Rs.400 per annum. The writer stated that this would be in accordance with the decree of Mr. Reid, the Commissioner, dated March 19, 1866, an extract from which he professed to give. There is not, however, any trace of such decision to be found; and the passage quoted is from the award itself. Mr. Reid was the Commissioner of the Fyzabad Division, who, on August 11, 1866, affirmed the decision of Major Boss of December 21, 1865; and a reference to his reasons and his formal judgment (both set out in the record) shew that the allotment of villages to the respondents was not referred to. Mr. Reid was the Commissioner of the Fyzabad Division, who, on August 11, 1866, affirmed the decision of Major Boss of December 21, 1865; and a reference to his reasons and his formal judgment (both set out in the record) shew that the allotment of villages to the respondents was not referred to. By a Government order, dated July 7, 1883, the sanction of the Lieutenant-Governor and Chief Commissioner was given to the proposal that the respondents should be paid the arrears of maintenance due to them and that they should be given in lieu of the present monthly allowance two villages yielding a profit of Rs.600 and Rs.400 per annum respectively, after the payment of the Government jama. Further proceedings ensued before the Deputy Commissioner, which resulted in the village Kasmora, the income of which was about Rs.640, being allotted to Farhat Ali Khan; and the village of Pura Mirza, the income of which was about Rs.400, to Sakhawat Ali Khan. The appellants liability for the duty due to the Government in respect of those villages was, however, kept alive. By an order of the Deputy Commissioner, dated November 27, 1883, conveyances were directed which were to contain provisions that the respondents were always to remain well-wishers and obedient to the head of the family; and so long as they did not fail in their duty the property would remain, generation after generation, in their possession and occupation. The same order provided for payment of the arrears of maintenance, and immediate delivery of possession of the villages Rs. This was done, and the respondents have ever since been in receipt of the income therefrom; and from a kabuliat dated June 18, 1887, it appears that Farhat Ali Khan succeeded in leasing the Mauza Kasmora for five years at Rs.800 a year, and the income has since further increased. The conveyances directed have not yet been executed ; but this cannot prejudice the rights of the parties.. In October, 1886, the appellant attained twenty-one, and in 1889 he commenced an action against each of the respondents to recover possession of the village allotted to him. The two actions were tried together by consent, and the appeals have been consolidated ; so the existence of separate actions need not again be referred to. In October, 1886, the appellant attained twenty-one, and in 1889 he commenced an action against each of the respondents to recover possession of the village allotted to him. The two actions were tried together by consent, and the appeals have been consolidated ; so the existence of separate actions need not again be referred to. The principal question in the Courts below was, and the only question here is, whether the allot ment of the two villages to the respondents was within the powers of the Deputy Commissioner of the Court of Wards, and is binding upon the appellant. The Civil Judge at Lucknow on July 18, 1895, decided in his favour, namely, that he was entitled to recover possession and to mesne profits; but this decree was on May 19, 1898, reversed in the Court of the Judicial Commissioner of Oudh, where the appellants claim was dismissed. The Court of "Wards has, of course, all the ordinary powers of a guardian over a wards property, supplemented by certain additional powers given by statute. By s. 161 of the Oudh Land Revenue Act, 1876, it is provided that the Deputy Commissioners shall, subject to the control of the Commissioner and the Chief Commissioner, have the powers of a Court of Wards within their respective districts, for the superintendence of the persons and property of all persons who may Law. Rep. 28 Ind. App. 190 ( 1900- 1901) Raja Mohammad Mumtaz Ali Khan V. Sakhawat Ali Khan 87 become entitled as proprietors or under-proprietors, and who are disqualified for the management of their own estates, within which class minors are, by s. 162, expressly included. Sect. 166 provides that the jurisdiction of the Court of Wards shall refer to the care and education, and management of the property, of persons subject thereto; and s. 172 provides that "the Court of Wards shall have power to give such leases or farms of the whole or parts of the immovable property under its charge, and to mortgage or sell any part of such property, and to do all such other acts as it may judge to be most for the benefit of the property, and the advantage of the disqualified proprietors." Their Lordships are of opinion that the allotment of the two villages to the respondents cannot be supported. It is not authorized by any of the orders of Court made in the years 1865, 1866, and 1867; and the finding of the award on the subject was not within the reference to arbitration, and was not adopted by the Court. It is not within the power of a guardian to make a voluntary alienation in perpetuity of his wards real estate, and it is open to the ward on attaining twenty-one to challenge the validity of such a transaction. The letter of May 25, 1883, upon which the order of July 7 was based, contains a very misleading and incorrect account of what had taken place; and even that letter only proposed to provide the respondents with " subsistence " or " maintenance," not to hand over to them part of the appellants real estate, that should remain theirs from generation to generation. Nor can the assignment of the villages to the respondents be justified under s. 172 of the Act. Clearly it cannot, unless it comes within the final words, that the Court may do all such acts as it may judge to be most for the benefit of the property and the advantage of the infant. It was not for the advantage of the appellant or the benefit of his property that two considerable portions of his estate should be disposed of without consideration. And there is not any trace throughout the proceedings of any thought having been taken as to what was beneficial to him or his estate. The respondent Farhat Ali gave evidence that he and his brother were going to sue for maintenance on the basis of the award of December, 1865, and that the Deputy Commissioner replied that it was no use suing as he would give them villages in lieu of maintenance, according to that award. So that this ultra vires award was apparently the sole ground for the appropriation of these villages, if that evidence can be trusted. No question was raised here or in the Courts below as to any right of the respondents to maintenance out of the taluqdari estate independently of their claims to the absolute ownership of the two villages, and their Lordships abstain from expressing any opinion upon it. No question was raised here or in the Courts below as to any right of the respondents to maintenance out of the taluqdari estate independently of their claims to the absolute ownership of the two villages, and their Lordships abstain from expressing any opinion upon it. If any such right exists, effect can be given to it by way of set-off against the liability in the execu tion proceedings in respect of mesne profits, and, as regards maintenance after the delivery of possession, by a suit. Their Lordships will, therefore, humbly advise His Majesty that the judgment of May 19, 1898, should be reversed, and that of July 18, 1895, should be restored, and that the respondents should be ordered to pay the costs of the appeal to the Judicial Commissioner. The respondents must also pay the costs of this appeal.