Krishna Menon v. Kuthiravattathu Estate Manager — 1959 DIGILAW 174 (KER)

Judgment :- 1. This is a revision by the first respondent in I. A. No. 1615/1957 on the file of the sub-court, Ottapalam, filed against the order of the learned Subordinate Judge dated 15th October 1958 in I. A. 1615/1957. 2. O. S.17/1953 was instituted by the Kuthiravattom Valia Nair, represented by the Court of Wards, as next friend. The suit was for recovery of possession of certain properties from the various defendants on the ground that they belong to the Kuthiravattom estate. The Kuthiravattom Nair died on 23-5-1957 and the present application, I.A. 1615/57, was filed by the manager of the court of wards to implead him as supplemental plaintiff in the suit and to permit him to continue further proceedings in that litigation. This application was opposed by the respondents 1 and i in that I. A. 1615/57. The grounds on which the application filed by the Manager of the Court of wards was opposed, are that the court of wards functions only as next friend under S.50 of the Madras Court of Wards Act, 1902 and it has no power to continue the proceedings as legal representative of Kuthiravattath Nair on his death. Further objection was also taken that even assuming the court of wards has got power to come on record and continue the proceedings, the application filed by its manager was not in proper form. 3. The learned Subordinate Judge, after a consideration of the various aspects, came to the conclusion that the application filed on behalf of the court of wards must be allowed. The learned judge has placed reliance upon a decision of the Nagpur High Court in Firm Gabrulal v. Court of Wards (A. I. R.1933 Nagpur 85) to which I will refer later in this judgment. Also basing his view upon the provisions of S.61 of the Madras Court of Wards Act. 1902, the learned judge came to the conclusion that in view of the fact that there is a dispute regarding succession to this estate, the court of wards was entitled to retain the superintendence and as such, to come on record and continue the suit originally filed in its capacity as the next friend of Kuthiravattath Nair. The learned judge also over-ruled the objection raised on behalf of the contesting parties that the manager has no right to come on record and continue the proceedings. 4. The learned judge also over-ruled the objection raised on behalf of the contesting parties that the manager has no right to come on record and continue the proceedings. 4. It is against this order, allowing the manager of the court of wards to come on record as supplemental plaintiff and continue O. S.17/1953, that the first respondent in that application has come up in revision to this court. 5. Mr. T. C. Raghavan, learned counsel for the petitioner, has contended that on a reading of the relevant provisions of the Court of Wards Act it will be seen that the court of wards functions only as next friend or guardian ad-litem of the ward and that it has no power to continue the proceedings after the death of the ward, The learned counsel also attempted to distinguish the reasoning contained in the judgment reported in Firm Gabrulal v. Court of Wards (A.I.R.1933 Nag. 85) and relied upon by the learned judge for ordering the application. 6. On the other hand, Mr. M. U. Isaac, learned counsel appearing for the court of wards, has contended that the decision of the Nagpur High Court applies on all fours and he has also drawn my attention to S.61 and 62 of the Court of Wards Act in particular. According to the learned counsel, whatever may be the position of the court of wards during the life-time of the ward as mentioned in S.50, once the ward dies and, so long as the estate is not released from its superintendence as provided under S.62, the court of wards is entitled to adopt any of the three alternatives mentioned in S.61. In this case, the court of wards, in view of the dispute regarding the succession to the Estate, has chosen to retain the superintendence of the property and as such the application filed by them in the lower court is proper. 7. After hearing the learned counsel on both sides, I am of the view that the order under revision does not require any interference. 8. Mr. T.C. Raghavan, learned counsel for the petitioner, as stated earlier, placed considerable reliance on S.50 of the Court of Wards Act. S.50, in my opinion, will not at all help Mr. T. C. Raghavan in his contentions because that provides only for institution of proceedings by or against a ward. 8. Mr. T.C. Raghavan, learned counsel for the petitioner, as stated earlier, placed considerable reliance on S.50 of the Court of Wards Act. S.50, in my opinion, will not at all help Mr. T. C. Raghavan in his contentions because that provides only for institution of proceedings by or against a ward. That means, it proceeds on the basis that the ward is still alive. S.50 provides that in all suits or proceedings in any civil or revenue court the ward shall sue and be sued in his own name and the manager of his property appointed under S.24 or, if there is no such manager, the officer competent to act as manager under S.25 shall represent him, as next friend or guardian ad litem as the case may be. Mr. T. C. Raghavan is no doubt, correct in saying that S.50 describes the court of wards when they represent a ward in a particular proceeding as next friend or guardian ad litem. But, in my opinion, the position changes after the death of the ward. 9. As contended by Mr. Isaac, S.61 deals with a case after the death of the ward. Under S.61 whenever, on the death of any ward, the succession to his property or any part thereof is disputed, the Court may either direct that such property, or part thereof, be made over to any person claiming the property, or may retain the superintendence of the property until a claimant has established his title to the same in a competent civil court, or institute a suit of inter-pleader against all the claimants. S.61, in may opinion, clearly contemplates a right being vested in the court of wards to retain the superintendence of the property and to continue any proceedings that my be pending in a court on behalf of the estate. There are three alternatives provided under S.61 on the death of any ward and a succession to the property is in dispute namely, (1) The court may either direct that such property or part thereof be made over to any person claiming the property; (2) The court may retain the superintendence of the property until a claimant has established his title to the same in a competent civil court; (3; The court may institute a suit of inter-pleader against all the claimants. 10. 10. In this case, the application in the lower court has been made on the specific allegation that there is a dispute regarding the succession to the estate and therefore, the court is retaining the superintendence of the property of the estate and as such, wants to come on record as a supplemental second plaintiff. 11. In my opinion, once the court decides to retain the superintendence of the property under S.61, they are transferred from the position of a next friend or a guardian and litem to that of a person entitled to represent the estate of the deceased ward. That is in other words, they become legal representative as defined in S.2 (XI) of the C. P. C. 12. In this connection, S.62 of the Act also can be adverted to. S.62 provides for the procedure to be followed when the court releases any person or property from its superintendence. It provides that in such cases, the fact of such release shall be notified in the official Gazette and also in the Gazette of the district in which such property or any part thereof is situate. In this case no such notification releasing the property from its superintendence has been published by the court of wards and no action has been taken in pursuance of that section. 13. Now I will advert to the decision of the Nagpur High Court relied upon by the court of wards before the lower court and also before me. That judgment is the one reported in Firm Gabrulal v. Court of Wards (AIR. 1933 Nag. 85). In that case, the learned judge comes to the conclusion on a construction of S.33 of the Court of Wards Act namely Act 24/1899 Central Provinces which in all material particulars, in my opinion, corresponds to S.61 of the Madras Act. That judgment is the one reported in Firm Gabrulal v. Court of Wards (AIR. 1933 Nag. 85). In that case, the learned judge comes to the conclusion on a construction of S.33 of the Court of Wards Act namely Act 24/1899 Central Provinces which in all material particulars, in my opinion, corresponds to S.61 of the Madras Act. S.33 of the Court of Wards Act - Central Provinces Act 24/1899 which the learned judge had to consider, is as follows: "Whenever, on the death of any Government ward, the succession to his property or any part thereof is disputed the Court of Wards may, with the previous sanction of the Local Government either direct that the property or the part thereof be made over to any person claiming the property or retain the superintendence of the property until one of the claimants has established his claim to the same in a competent civil court or institute a suit of interpleader against all the claimants." The only difference, as I could see, between S.33 of that Act and S.61 of the Madras Act is that under the Central Provinces Court of Wards Act, before the court adopts any one of the three alternatives, they must get the previous sanction of the Local Government; whereas there is no reference in S.61 of our Act directing the court to get the previous sanction of the Local Government. It is on this wording contained in S.33 of the Central Provinces Act that Mr. T. C. Raghavan placed considerable reliance and tries to distinguish the decision of the Nagpur High Court as being not applicable to an interpretation of S.61 of our Act. 14. I am not able to accept the contention of Mr. T. C. Raghavan in this respect. While S.33 of the Central Provinces Act provides a condition precedent to the court adopting any one of those courses mentioned therein and directs that it can be only with the previous sanction of the Local Government, S.61 of our Act gives the court itself power to decide about the course that they have to adopt without getting any previous sanction from the Local Government. 15. Mr. 15. Mr. T.C. Raghavan contended that the reasoning of the learned judge in the Nagpur decision that the court of wards will become a legal representative of the deceased ward is really because of the sanction of the Local Government given therein. That is, when once the Local Government gives its sanction under that section, the court of wards is constituted as a legal representative of the deceased ward. I am not able to appreciate this contention. The previous sanction of the Local Government, in my opinion, has nothing to do with constituting the court as a legal representative of the deceased ward. The previous sanction, in my opinion, is only necessary under the Central Provinces Court of Wards Act to authorise the court to adopt any one of those alternatives; whereas in this case, the court of wards has chosen to continue the management by itself and has decided to retain the superintendence of the property and as such, under S.61 it is entitled to represent the estate in this case. I am in respectful agreement with the reasoning of the learned judge of the Nagpur High Court referred to in Firm Gabrulal v. Court of Wards (AIR. 1933 Nag. 85). 16. There is only one other minor point that requires consideration. That is as to whether the manager of the court of wards is entitled to come on record on behalf of the estate. Even here, as rightly pointed out by Mr. Isaac, S.24 (2) is clear. S.24 (1) gives power to the court of wards to appoint managers for the property and guardians for the person, etc. Clause.2 of S.24 provides that any appointment made under this section shall terminate when the court ceases to exercise superintendence over the person for whom a guardian, or over property for which a manager, has been appointed. In as-much as no notification has been issued by the court of wards under S.62 releasing the property from its superintendence, the manager appointed by the court of wards, is entitled to continue under S.24 (2) of the Act. 17. All the contentions of Mr. T. C. Raghavan, learned counsel for the petitioner, fails and the C. R. P. is dismissed, but in the circumstances without any order as to costs. As the C. R. P. is disposed of to-day, C. M. P. 4569/58 is also dismissed. No order as to costs.