Kutti Kunhunni Raja vs Kuthiravattath Nair''s Estate

M.S. Menon, J.—This revision petition is directed against the order of the Subordinate Judge of Ottapalam in I. A. No. 1771 of 1957 in O. S. No. 6 of 1955. The petitioners before us are the 1st and 2nd defendants in that suit. The suit seeks a declaration that the properties concerned are in the possession of the estate on a kanom right, a permanent injunction restraining the defendants and their men from trespassing on the property, and damages in respect of the trees alleged to have been cut and removed by them.

I. A. No. 1771 of 1957 was filed on 17-9-1957. It invokes Section 151 and Order 22, Rule 2, of the Code of Civil Procedure, 1908.

The plaintiff in O. S. No. 6 of 1955 and the petitioner in I. A, No. 1771 of 1957 are described in the "cause title" of the plaint and the petition as "Kuthiravattath Nair''s Estate under the Superintendence of the Court of Wards by Manager." In the description of the parties given in the plaint immediately after the "cause title" the following statement is made regarding the plaintiff:

''''The plaintiff above-named is the Manager appointed by the Court of Wards. The present Kuthiravattath Nair has been adjudged a lunatic by the District Court, South Malabar and his estate is under the superintendence of the Court of Wards. The plaintiff has his Office at Koduvayur Palghat Taluk. The address for service is that of his Advocate Sri A. M. Raman Nair, Ottapalam."

I. A. No. 1771 of 1957 reads as follows;

"For the reasons, stated in the affidavit dated 25-7-57 filed by the petitioner herein on 30-7-57 the petitioner prays that he may be permitted to continue this suit as plaintiff;"

and the affidavit mentioned therein:

"1. I am the plaintiff.

The notification u/s 19(1) Madras Act 1/1902 published in the Fort St. George Gazette dated 7-2-50 is to the effect that the Court of Wards is to continue in management until further orders from the Government. Even though the Stani died on 23-7-57 no order to hand over to legal heirs has been passed. The Government have not also notified release of the estate under Sections 54 and 62 of the Act.

u/s 7(3) of the Hindu Succession Act the properties of Stanis stand divided per capita among the members of the tarwad and legal heirs of the deceased. There are 111 members in the tarwad. The deceased himself is represented by 23 legal personal heirs. These members are negotiating with Government for continuance of the management by Court until a legal and proper division is effected. The case is further complicated by the death of the 2nd Stani on or about 27-5-57.

In these circumstances it is not necessary to implead legal heirs of the 1st Stani in this suit as the Court of Wards is legally and legitimately continuing management of the Estate."

Section 151 of the Code of Civil Procedure, 1908, relates to the inherent power of the court to make such orders as may he necessary for the ends of justice or to prevent abuse of the process of the court, and Order 22, Rule 2, deals with the procedure to be adopted where one of several plaintiffs or defendants dies and the right to sue survives. The rule reads as follows:

"Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants."

In order to attract Order 22, Rule 2, there should have been more than one plaintiff. We are not concerned with such a case.

Section 50 of the Madras Court of Wards Act, 1902, provides :

"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 u/s 24 or, of there is no such manager, the officer competent to act as manager u/s 25, shall represent him, as next friend or guardian ad litem as the case may be."

The most that can be said is that O. S, No. 6 of 1955 is a suit instituted in compliance with the provisions of this section. It must follow that it is a suit by a single plaintiff and not a suit by more than one plaintiff. A next friend or guardian ad litem is not a party to the suit.

Sub-rule (1) of Rule 3 of Order 22 provides that where a sole plaintiff dies and the right to sue survives -- as in this case -- "the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit;" and Sub-rule (2) of that rule:

"Where within the time limited by law no application is made under Sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff."

Under Article 176 of the Indian Limitation Act, 1908, the application should be made within 90 days of the date of the death of the deceased plaintiff. The Nair died on 23-5-1957 and as I. A. No. 1771 of 1957 was filed only on 17-9-1957, there can be no doubt that it was filed out of time.

The court has not passed any order to the effect that the suit has abated. Such an order, however, is unnecessary under the present rule. The abatement is automatic.

Under Sub-rule (2) of Rule 9 of Order 22 the court has the power to set aside the abatement if it is proved that the legal representative "was prevented by any sufficient cause from continuing the suit." Under Article 171 of the Indian Limitation Act, 1908, an application in that behalf should be made within 60 days of the date of the abatement. It is not disputed that if I. A. No. 1771 of 1957 can be considered as an application for setting aside the abatement, then it is an application filed within time. The contention of the petitioner before us is that it should not be so considered.

AIR 1933 85 (Nagpur) is a case in which under similar circumstances an application has been treat-led as one under Sub-rule (2) of Rule 9 of Order 22, and we are inclined to follow the same course in this case. As pointed out in the order of reference, however, there is no allegation in I. A. No. 1771 of 1957 or the affidavit mentioned therein that any cause, much less a sufficient cause, prevented the petitioner from continuing the suit.

The further question that arises for consideration is: who is the legal representative of the deceased Nair entitled to be made a party and to proceed with the suit?

The Manager was appointed u/s 24 of the Madras Court of Wards Act, 1902. There is nothing on record to show that he has been subsequently removed from the management by the Court of Wards. In such a case under Sub-section (2) of that section the appointment will terminate only when the Court of Wards ceases to exercise superintendence over the property for which the manager was appointed.

Section 61 of the Court of Wards Act, 1902, provides:

"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 title to trie same in a competent Civil Court, or institute a suit of interpleader against all the claimants."

Apparently there are disputes regarding the succession to the property of the ward, and we think we may safely assume that Section 61 is attracted, and that the superintendence of the Court of Wards continues. Krishna Menon v. Kuthiravattah Estate Manager 1959 Ker LT 868, a case relating to the same estate, proceeds on that basis.

u/s 62 of the Act when the Court of Wards releases any property from its superintendence the fact of such release has to he notified, in the official gazette and also in the gazette of the district in which such, property or any part thereof is situate. No such notification has been produced, and we are assured that none has been issued.

Section 52 of the Court of Wards Act, 1902, deals with the powers of the Manager in respect of the filing of the suits. It provides:

"No suit shall be brought on behalf of any ward by the manager or other officer competent to act as manager u/s 25 unless authorized by some particular or general order of the Court:

Provided that a manager or other officer as aforesaid may file a plaint in order to prevent a suit from being barred by the Law of Limitation, but such suit shall not be further proceeded with, until the consent of the Court has been obtained."

The defendants have no case that the suit is bad for lack of an authorisation under this section.

If the Manager had authority u/s 52 to file O. S. No. 6 of 1955 it must follow that the authorisation will also enable him to do everything necessary for the conduct of the suit so long as he is in office and the superintendence of the Court of Wards continues. One of the things he should ensure in case the ward died during the litigation should certainly be the representation o� the estate and the continuance of the suit.

The Manager, however, is not the legal representative of the deceased Nair. It is the Court of Wards which in law represents the estate of the deceased ward during the continuance of the superintendence u/s 61 of the Court of Wards Act, 1902 and which should be considered as the legal representative. AIR 1933 85 (Nagpur) is a direct authority on the point. The decision was followed by Vaidialingam, J., in 1959 Ker LT 868.

There is no prayer in I. A. No. 1771 of 1957 to the effect that the Court of Wards should be brought on record. As already stated the petition does not also reveal any cause, much less a sufficient cause, for setting aside the abatement under Order 22, Rule 9(2), of the Code of Civil Procedure, 1908.

In these circumstances we cannot but set aside the order of the court below and allow this petition with costs. We decide accordingly.

This does not mean, however, that the Court of Wards will not be able to file a petition under Order 22, Rule 9(2) of the Code of Civil Procedure, 1908 or that the Manager will not be able to file such a petition on behalf of the Court of Wards. If and when such a petition is filed, the lower court will of course consider it on its merits and pass appropriate orders.

The "cause title" of the plaint and the contents of I. A. No. 1771 of 1957 and the affidavit in support of it reveal a lamentable lack of care and understanding. We can only hope that the Court of Wards will see to it that there is no repeated performance.

The order of reference is reproduced as an appendix to this order. Revision allowed.

ORDER OF REFERENCE

Raman Nayar, J.—The question here arising is apparently covered by authority -- see AIR 1933 85 (Nagpur) and the unreported decision in C. R. P. No. .1019 of 1958 of this court (since reported in 1959 KLT 868) following that case -- but there seem to be difficulties both big and small I think I had better leave it to a division bench to resolve them.

The suit relates to immovable property claimed in the plaint as belonging in kanom right to the then Kuthiravattath Nair. The Nair was a person who had been adjudged a lunatic and the superintendence of whose property had therefore been assumed by the Court of Wards under the provisions of the Madras Court of Wards Act, 1902. This was in 1949, and, in due course, a manager was appointed for the property u/s 24 of the Act. u/s 50, the suit should have been brought in the name of the ward, namely, the Nair, with the manager representing him as next friend. Rut, if we turn to the plaint, we find the cause title saying "Kuthiravattath Nair''s Estate under the superintendence of the Court of Wards by Manager: plaintiffs,"

In the description of the parties following the cause title it is, however, said that the plaintiff is the manager appointed by the Court of Wards. No objection has however been taken so far to the frame of the suit, and I am walling to assume that the suit is one brought by the Nair represented by the manager as required by Section 50 of the Act. The Nair died on 23-5-1957 and, on 30-7-1957, the manager filed an affidavit dated 25-7-1957 stating this fact. In this affidavit he averred that he was the plaintiff and that since, notwithstanding the death of the Nair, the Court of Wards was legitimately continuing in management it was not necessary to implcad the legal heirs of the Nair.

This affidavit was followed by a petition brought on 17-9-1957 in the name of the plaintiff as appearing in the cause title to the plaint, namely, "Kuthiravattath Nair''s Estate under the superintendence of the Court of Wards, by Manager". The petition purported to be u/s 151 and Order XXII Rule 2 of the Code, and it prayed that the petitioner may be permitted to continue the suit as plaintiff for the reasons stated in the affidavit dated 25-7-1957. The court below has allowed this petition holding that the Court of Wards was the legal representative of the deceased Nair within the meaning of Section 2(11) of the Code.

It repelled the contention of the defendants that the suit had already abated since no legal representative had come on record within the time prescribed, stating, what is obviously incorrect in whatever way the plaint is read, that the Court of Wards was already on record and that therefore no question of impleading a new party arose. According, to it the only question was whether the Court ot Wards could continue the suit; and, even assuming, that the Court of Wards had to come in as a new party, the petition filed on 17-9-1957 could be considered as an application to set aside the abatement under Order XXII Rule 9 (2) In so doing it followed the Nagpur case akeady referred to. Against this, order, defendants 1 and 2 have come up in revision, and the plaintiff (as described in the cause title to the plaint) figures as the Ist respondent.

I am told by learned counsel for the 1st respondent that I must read the plaint as one brought by the Nair represented by the manager, and this, as I have already said, I am willing enough to do. I am told next that I must treat the affidavit filed by the manager on 30-7-1957 (in which affidavit it will be recalled he claimed that he was the plaintiff and asserted that it was not necessary to implead the heirs of the deceased Nair) as an application brought by him under Order XXII rule 3 for coming on record as the legal representative of the deceased Nair, an application for which the necessary court-fee wa.s paid in the petition of 17-9-1957. In the alternative, I must read the petition of 17-9-1957 as an application brought by the manager under Order XXII Rule 9 (2) for setting aside the abatement and continuing the suit as the legal representative of the deceased Nair; this notwithstanding that no cause whatsoever is alleged for suffering the suit to abate.

But, when all these feats have been performed, the question still remains, whether the manager is the legal representative of the deceased ward and this is a matter on which I entertain doubt notwithstanding the two decisions which I have already mentioned. I must first point out that there is here no application whatsoever by the Court of Wards to come on record; the application is if at all, only by the manager. In the Nagpur case the application was by the Court of Wards, but, in C. R. P. No. 1919 of 1958 of this court (1959 KL.T 868) it was, as in the present case, by the manager.

In the present case there has been no notification of release from superintendence u/s 62 of the Act, and it is said that the Court of Wards has retained superintendence u/s 61. A manager is appointed u/s 24 (1) of the Act, and. u/s 24 (2), his appointment terminates only when the Court of Wards ceases to exercise superintendence. Therefore, as pointed out in C. R. P. 1019 of 1958 (1959 KLT 868) the manager continues in office. So far I am able to go, but I am by no means certain that, because the manager lawfully continues in office, ho is a person who in law represents the estate of the deceased ward and is therefore his legal representative within the definition in Section 2(11) of the Code. Section 50 of the Act makes it clear that the manager has no right to sue in his own name in respect of the property of a ward and that he can only represent the ward as next friend. It is not pretended that a next friend is a party to a suit or can come in as a party on the death of the ward--this is clearly recognised in the Nagpur case.

The question then is whether, by reason of the powers given to the manager under the Act, powers which notwithstanding the death of the ward continue until the Court of Wards ceases to exercise superintendence, the manager can be said to be a person who in law represents the estate of the deceased ward, or at least a person who intermeddles with the estate of the ward. Now, if we turn to Section 20 we find that, on the Court of Wards assuming superintendence of the property of a ward, the Collector of the district takes possession of the property on behalf of the Court. This possession is not, under any of the provisions of the Act, made over to the manager so that it is clear that it is the Court of Wards and not the manager that is in actual possession of the property. The powers of the manager are given in Section 28 and his duties in Section 29. He is just what his name implies and nothing more, and I see nothing In these sections to indicate that, on the death of the Ward, the manager is competent to re-present his estate.

As I have said, the manager is not even in possession, and I doubt if it can be said that he intermeddles with the estate merely because he continues to manage even after the death of the ward. It is to be noted that in the present case the manager has no pretence that he is the executor of the deceased ward; and if he has performed any acts of management u/s 28 of the Act, those acts being in exercise of the lawful powers cannot make him an intermeddler and can, in any case, put him in a position analogous to that of an executor in his own wrong only in respect of those particular acts. It is only when a person has actually intermeddled that he becomes a legal representative. The court is not to allow a person to intermeddle by continuing the suit of a deceased plaintiff when he has no right to do so and thus make himself a legal representative.

In C. R. P. No. 1019 of 1958: (1959 KLT 868) the right to represent the estate of the deceased ward was traced to Section 61 of the Act, and in the Nagpur case to the similar provision in Sec, 33 of the Central Provinces Court of Wards Act, 1899. The ratio dccidendi in both cases is that the relevant section places the Court of Wards in the position of an executor or an administrator and therefore in the position of a person Who, in law represents the estate of the deceased ward. (I might here say that learned counsel for the 1st respondent does not accept this; according to him mere superintendence without any actual vesting is insufficient). But it is the Court of Wards and not the manager that is placed in this position, and I find difficulty in tracing any right of representation in the manager either to Section 61 or to any other provision of the Act. As I have already pointed out, there is in this case no application whatsoever by the Court of Wards.

I might add that the 1st respondent has the contention that it is nowhere alleged that the succession to the property of the deceased Nair is in dispute so as to bring Section 61 into play.

According to him, when the disqualified proprietor of whose property the Court of Wards has assumed superintendence dies, and somebody else becomes the proprietor, the superintendence automatically ceases and this cessation is in no way dependent on a notification u/s 62. It is only when, as a result of dispute regarding succession the Court of Wards decides to retain superintendence u/s 61 until the dispute is settled by a court of law, that any question of the Court of Wards functioning as a sort of executor can conceivably arise.

Let the case be posted before a Division Bench.