Sm. Sushila Devi v. Nawabzada Pari Banu Khan — 1944 DIGILAW 162 (CAL)

JUDGMENT Ormond, J. - This is an application to have an attachment levied by the Sheriff in execution of a decree removed. There is no dispute about the facts. On the 10th and the 15th May, 1940, the Plaintiff lent the Defendant certain sums of money amounting to Rs. 15,000. On the 24th January, 1941, the Plaintiff obtained a decree against the Defendant for that sum plus interest, for an amount of something over Rs. 16,000. On the 9th June, 1944, an attachment in execution of that decree was effected by the Plaintiff on furniture of the Defendant at No. 31, Theatre Road. On the 12th June, 1944, that is, three days afterwards, this application was made for the removal of the attachment. The matter then came before Edgley, J., and an order was passed by his Lordship Edgley, J. By that order it was directed that an inventory of the attached furniture should be prepared on an undertaking being given by the Court of Wards to hold the furniture and to produce the same in Court whenever called upon to do so, the Sheriff's peon was to be withdrawn, the attachment was to continue, various directions were given for the filing of affidavits and for the motion to appear in the list and the Sheriff's Officer was directed to act on Counsel's endorsement. The Plaintiff is a Hindu lady, the Defendant is a Muslim lady and a member of the family of the Nawab of Dacca. It will be observed from the petition that the petition is verified by Bhubaneswar Chakrabutty, the first law assistant of the Dacca Nawab's Court of Wards Estate, and the petition is signed by him, the petition being moved therefore by the Court of Wards on behalf of the Defendant, and the warrant of Attorney in favour of the solicitors has been also signed by this gentleman, the first law assistant. This present application is thus made on behalf of the Court of Wards for the Defendant as a disqualified proprietress under the Court of Wards Act. 2. It is admitted that at the time of the loan in May, 1940, no leave of the Court of Wards had been obtained to make the loan ; and that at the time of the attachment on the 9th June, 1944, also no leave had been obtained. 2. It is admitted that at the time of the loan in May, 1940, no leave of the Court of Wards had been obtained to make the loan ; and that at the time of the attachment on the 9th June, 1944, also no leave had been obtained. It is on the ground of the absence of that leave and because the property, as contended by the Petitioner, is under the management of the Court of Wards and has been under the management of the Court of Wards at the material times, that it is contended that the execution could not be proceeded with and that the attachment is illegal. The dates in respect of the precise steps taken towards the taking over by the Court of Wards of the Defendant's property therefore become important. 3. On the 22nd March, 1928, there was a declaration that the Defendant Nawabzadi Pari Banu Khan was a disqualified proprietress under sec. 6A of the Court of Wards Act. That was by Order No. 3438W of the Board of Revenue. Shortly after that possession was taken by the Court of Wards of the zamindary properties of the Defendant. On the 18th March, 1938, ten years afterwards, there was another declaration to the effect that it had been decided that other property of the Defendant including the property at No. 31, Theatre Road, with the furniture now concerned in this application, should be taken charge of by the Court of Wards. Copies of those declarations are annexed to the affidavit in reply. After that decision that the Court of Wards should take charge of the property at No. 31, Theatre Road, there was delay in the Court of Wards taking possession. That was due to a claim of adverse possession by the Hughli Bank. On the 18th March, 1943, possession was taken of the house at No. 31, Theatre Road ; and on the 27th May, 1943, possession was taken by the Court of Wards of the furniture at No. 31, Theatre Road, which is the subject of this present application. That is accordingly the material date on which the Court of Wards took actual possession of the property the attachment on which is now sought to be removed. 4. There is one other matter on the facts which I should mention. That is accordingly the material date on which the Court of Wards took actual possession of the property the attachment on which is now sought to be removed. 4. There is one other matter on the facts which I should mention. On the 16th June, 1943, by an order of the Board of Revenue and the Court of Wards, it was agreed that the premises at No. 31, Theatre Road should be let to the Chief Minister of the Bengal Government, Khwaja Sir Nazimuddin, and there is a copy of that order as annexure to the affidavit in reply. On the 12th August, 1943, the Chief Minister Khwaja Sir Nazimuddin occupied the house at No. 31, Theatre Road. The facts as to this are given in paragraph 7 of the petition and paragraph 2 of the affidavit in reply. For the Plaintiff in regard to this there is only a somewhat naive statement in paragraph 9 of the affidavit in opposition "I have no knowledge and I do not admit that the Hon'ble Khwaja Sir Nazimuddin, the Chief Minister of the Province of Bengal, is the lessee of the said premises." It is not mentioned in the affidavits what relation the Defendant is, if any, of the Chief Minister, nor in what circumstances the loan was made to the Defendant by the Plaintiff. It would normally have been expected, it might be supposed, that a person lending money to another would acquaint herself of the properties owned by the borrower ; and if the borrower was the owner of a particular house, which happened to be occupied by a person as notable as the Chief Minister of Bengal, to become acquainted with that fact. But there are no further materials before me as to that ; and this part of the matter has no bearing at all on the legal aspect of this application, which is confined to the question whether or not the Plaintiff had a right to proceed with the execution and to impose the attachment on the furniture of the Defendant. 5. 5. It would seem that the attachment took place approximately one year after the Court of Wards took possession of furniture but more than sixteen years after the first original declaration declaring the Defendant a disqualified proprietress for the purposes of the Court of Wards Act, and six years in fact after the other declaration concerned with the taking over of the property at No. 31, Theatre Road by the Court of Wards, that is to say, the second declaration. 6. The contention of the learned Standing Counsel, Mr. Majumdar appearing for the Petitioner, the Defendant, is that the Defendant in these circumstances is protected by the Court of Wards Act, and that the attachment is illegal, null and void. 7. The contention of Mr. N.C. Chatterjee on the other hand is that this attachment is not protected by the Court of Wards Act. 8. Questions arise therefore as to the general intention of the Act for preventing a disqualified proprietor from dealing with his own property ; and, secondly, in regard to the provisions of the Act for preventing creditors from proceeding in execution against the property of a disqualified proprietor. 9. It will be seen that sec. 10C of the Court of Wards Act provides as follows : Where any property is in charge of the Court of the Wards, no civil Court shall execute any decree or order against the person or property of the ward within 4 years from the date of the commencement of the Act or from the date of the assumption of charge of the property by the Court of Wards, whichever is later, and for 7 years thereafter, if the interest due under such decree or order be paid in fall every year daring the said 7 years. 10. Mr. Mazumdar contends that the words "the date of the assumption of charge of the property" refer to the date when the Court of Wards takes actual possession of the property, and he relies as to this construction also on sec. 35. On this construction the words "the property" in the section are taken to mean the particular property taken over by the Court of Wards at the particular date when it takes possession. 11. Mr. 35. On this construction the words "the property" in the section are taken to mean the particular property taken over by the Court of Wards at the particular date when it takes possession. 11. Mr. N.C. Chatterjee, on behalf of the Plaintiff, contends that the words "assumption of charge" relate to the first original declaration when the ward was declared to be a disqualified proprietress, and that the words "the property," must mean therefore any property of the wards. 12. I am unable to accept this construction contended for by Mr. Chatterjee for two main reasons. It will be seen that the scheme of the Act is to allow the Court of Wards to rehabilitate the estates taken charge of by it. In order to allow it to do this, provision is made throughout the Act to prevent creditors from selling to the estate in execution of their decrees. The Court of Wards under the Act is expected to make arrangements with the creditors for ensuring payment of their debts, and at the same time for putting the management of the estate that it is given charge of on to a business-like and economical basis. The Act evidently allows for some property of the disqualified proprietor to be taken over by the Court of Wards on one date, and for other property to be taken over later on, at a later date, separately. 13. In my view, it would defeat altogether the intention of the Act to allow the Court of Wards to take up a long-term scheme for the management of the property if in respect, of a second lot of property taken over by the Court of Wards at a date when the time-limit for the protection of the first had expired, the position was to be taken to be that there was no protection against creditors executing decrees and selling up the second lot of property. It would in many cases be useless for the Court of Wards to take a second lot of property at all. 14. The second reason is one that affects sec. 10C more directly. As I mentioned, sec. 10C turns on "the date of assumption of charge," those are the words. It would in many cases be useless for the Court of Wards to take a second lot of property at all. 14. The second reason is one that affects sec. 10C more directly. As I mentioned, sec. 10C turns on "the date of assumption of charge," those are the words. Now, it is clear, in my view that the proper test for the date of the assumption of charge, when the Court of Warns is to be treated in law as having assumed charge, is explained and defined in sec. 35 of the Court of Wards Act. Sec. 35 is as follows : Whenever the Court has determined to take personal property of a disqualified proprietor under this charge. . . . . .the Court shall make an order declaring the fact and directing that possession be taken. . . . . .and the Court shall be held to be in charge of such property from the time when possession shall have been so taken. 15. It appears to me, therefore, indisputable that the Court, (that is to say, the Court of Wards), is not to be held to be in charge of such property from the time when the original declaration was made, nor from the time when it took possession of some other property. That being so, it follows that the general statutory prohibition contained in sec. 10C prohibiting a Civil Court from executing a decree during the period, mentioned in that section clearly applies to the present case. It operates as a complete bar against the Plaintiff, preventing her from executing her decree during the period mentioned in sec. 10C against the furniture of the Defendant. This in itself is enough to entitle the applicant, the Defendant, to succeed in the present application to have the attachment set aside. 16. Before leaving the matter, I should refer to sec. 60A, which was also relied on by the Standing Counsel, Mr. Mazumdar, in respect of his application. It will be seen that the bar imposed in this section against execution in the circumstances mentioned in that section operates "at any time": but of course it operates only in respect of the execution of a decree made under circumstances mentioned in the section, not necessarily in respect of all decrees. 17. Mazumdar, in respect of his application. It will be seen that the bar imposed in this section against execution in the circumstances mentioned in that section operates "at any time": but of course it operates only in respect of the execution of a decree made under circumstances mentioned in the section, not necessarily in respect of all decrees. 17. It is clear from the dates I mentioned earlier that the loan made in May, 1940, was not made while the furniture was under the charge of the Court of Wards, since possession was only taken in May, 1943. The Standing Counsel contends that in sec. 60A the words "his property" mean any of his property, that is to say, that no property is to be taken in execution of a decree made in respect of any contract entered into by the ward without the leave of the Court while any of the ward's property was under such charge. I do not consider, in my view, that this is the correct construction to be given to those words, particularly in view of what I have already mentioned as to the scheme of the Act and as to the explanation in sec. 35 of the date when property is taken charge of by the Court of Wards, which, together, go to show that different lots of property can be taken charge of at different times. In my view, therefore, sec. 60A does not operate in the circumstances of the present case and would not assist the Defendant. But in view of sec. 10C I make the order in terms of the notice of motion.