# \ RANI DRIG RAJ KUER v. RAJA SRI AMAR KRISHNA NARAIN SINGH

- **Citation:** [1960] 2 S.C.R. 431
- **Court:** Supreme Court of India
- **Decided:** 1957-11-22
- **Case number:** Civil Misc. Applications Nos. 54 and 56 of 1957
- **Bench:** S. K. Das, A. K. Sarkar, K. Subba Rao
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rani-drig-raj-kuer-v-raja-sri-amar-krishna-narain-singh-1871
- **Pages:** 29

## Headnote

Court of W ards-Estaies 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 mandatoryU.P. Court of Wards Act, z9z2, (U.P. 4 of z9z2), s. 56, Code of
Civil Procedure, z908 (5 of z908), 0. XXXII.
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 undet
the U. P. Court of Wards Act, and placed them in charge of the
Deputy Commissioner of Barabanki. Thereupon the cause titles
oi 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 appelltmt'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 c;ause· 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 tei·ms 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 the appeals. The High .Court
rejected the applications. The appellant co.ntended that the
compromise decrees were a nullity (i) as the Court of Wards hag
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 guardian of the appellai1f wh.o
•
,, .. --:?' •· .
.,:,_.,:, .. ::'
r959
·December r4
•
1959
Rani Drig Raj
KUer
v.
Raja Sri
A.may Krishna
Narain Singh
•
432
SUPREME COURT REPORTS [1960 (2)]
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
betw.een 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 represented 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

## Text

_Characters 0–39,782 of 64,746. This is a partial read: ask again with offset=39782 for what follows._

..
--
-
8.0.:R.
SUPREME COURT REPORTS
431
\
RANI DRIG RAJ KUER
v.
RAJA SRI AMAR KRISHNA NARAIN SINGH
(S. K. DAS, A. K. SARKAR and K. SUBBA RAO, JJ.)
Court of W ards-Estaies 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 mandatoryU.P. Court of Wards Act, z9z2, (U.P. 4 of z9z2), s. 56, Code of
Civil Procedure, z908 (5 of z908), 0. XXXII.
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 undet
the U. P. Court of Wards Act, and placed them in charge of the
Deputy Commissioner of Barabanki. Thereupon the cause titles
oi 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 appelltmt'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 c;ause· 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 tei·ms 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 the appeals. The High .Court
rejected the applications. The appellant co.ntended that the
compromise decrees were a nullity (i) as the Court of Wards hag
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 guardian of the appellai1f wh.o
•
,, .. --:?' •· .
.,:,_.,:, .. ::'
r959
·December r4
•
1959
Rani Drig Raj
KUer
v.
Raja Sri
A.may Krishna
Narain Singh
•
432
SUPREME COURT REPORTS [1960 (2)]
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
betw.een 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 represented 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 aopellant in charge of
the Court of Wards though it was.also in charge of the interests
of the respondent.
!;'er 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 intention 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 oμe or the other of the views. The
object of s. 56 was to prevent the anomaly of the same person
representing two conflic•ing 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 ".
·
J agan Nath v. ] aswant Singh, [r954] S.C.R.. 892, Queen v.
Ingaf.l, (1876) 2 Q.B.D. r99, Caldow v. Pixwell, ( 1876) 2 C.P.D.
562, Hari Vishnu Kamath v. Syed Ahmad Ishaque, [1955] r S.C.R.
rro4 and Braja Sunder Deb v. Rajendra Narayan Bhanj Deo, (r937)
f..R. 65 I.A. 57, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos.
422 & 423 of 1958. · ·
•
•
..
-
•
S.C.R.
SUPREME COURT REPORTS
433
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 0. N. Srivastava, for the appellant.
H. N. Sanyal, Additional Solicitor-General of India, ·
Bishun Singh and 0. P. Lal, for the respondent.
1959. December 14. The Judgment ofS. 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 (I of 1869), and
in the absence of any disposition by the holder for the
time being, it appears to ha'1"e devolved according to
the rule of primogenitut,e.
Raja Udit Narain died in 1927 leaving two sons of
whom the older was Raja Harnam and the younger
Kanwar Sarnam. :{(anwar 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"
1959
Rani Drig Raj
Kuer
v.
Raja Sri
Amar Krishna_
Narain Singh
Sarkar].
I959
Rani ·nrig ·Raj
Kuer
v.
Raja Sri
Amar Krishna
Narain Singh
Sarkar].
434
SUPREME COURT REPORTS [1960 (2))
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 l'tamnagar 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 Haja 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.
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
possessio!l·
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
•
S.C.R.
SUPREME COURT REPORTS
435family arrangement being found to be void or voidable, the appellant herself filed a suit against the
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 l/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
" l/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 c1aim 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 had 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 suitr:;
in the Hi~h Court ~t Luclmow1 one by the De:puty
I959
Rani Drig Raj.
Kuer
v.
Raja Sri
Amar Krishna
Natain Singh·.
Sarkar].
I959
Rani Drig Raj
Kuer
v.
Raja Sri
Amar Krishna
Narain Singh
Sarkar J.
436
SUPREME COURT REPORTS [1960(2}]
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 be.en 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 estate was
within his jurisdiction. The Court of Wards retained
for it its old name of Ramnagar estate. The cause
titles of the appeals bad 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. Th_e
cause titles of the appeals then became,
Deputy Commissioner, Barabanki I/C Court of
Wards Ganeshpur estate
Appellant
versus
Deputy Commissioner, Barabanki l/C Court of
Wards Ramnagar estate
. . . Respondent
AND
Deputy Commissioner, Barabanki l/C Court of
Wards Ramnagar estate
Appellant
versus
Deputy Comdiissioner, Barabanki I/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 th\l
'
-
-
-,
. ,
S.C.R.
SUPREME COURT REPORTS
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 arid the proceedings therein terminated. When the appeals were so compromised, the
paperbooks in respect of them were in the course of
preparation.
It is ~ot 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, an Act
56
I959
Rani Drig Raj
Kuer
v.
Raja Sri
Amar Krishna
Narain Singh
Sarkar].
z959
Rani Drig Raj
Kuer
v.
Raja Sri
.Amar Krishna
Narain Singh
Sarkatt ].
438
SUPREME COURT REPORTS [1960(2))
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. Iu ·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 affiiction 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 posses- •
sion 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
•
•
•
'
-
-
-
\
S.C.R.
SUPREME COURT REPORTS
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 compr·omise.
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 had 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 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
lshaq_ue (!).
The intention of the legislature has to he
gathered from the whole statute.
Several grounds are suggested why s. 56 should be
held to be imperative. First, it is said that otherwise,
(r) (r95~J 1 ·s.c,R. uo4.
r959
Rani Drig Raj
Kuer
v.
Raja Sri
Amar Krishna
Narain Singh
Sarkar].
I959
Rani Drig Raj
Kue1
v.
Raja Sri
Amar Krishna
Narain Singh
Sarkar].
440
SUPREME COURT REPORTS [1960(2)]
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 ifs. 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 subjectmatter; 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 its 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.
'
..
,.
-
S.C.R.
SUPREME COURT REPORTS
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, ands. 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 representatives appointed under s. 56 are to be named in the
record of the case as representing the wards. The
section does not 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 director~
provision, s. 55 would not become otiose.
Next it is said that ss. 57 and 58 of the Act also deal
with the appoint~ent 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 indicate~ 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 neoessarily
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
..
r959
Rani D1ig Raj
·Kue;
v.
Raja S1i
Ama1 K1ishna
Na1ain Singh
Sa1kar ].
I959
Rani Drig Raj
J<ue1
v.
Raja Sri
Amar Krishna
Narain Singh
Sarkar].
442
SUPREME COURT REPORTS [1960(2))
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 t.he 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 W ar<ls.
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
trard 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 nuder ss. 57 and 58, no more could
the legislature have intended the appointment of
representatives under s. 56 obligatory.
This leads us to the argument based on the object of
s. 56. It is said that the object of the section is to
'
--
,.
0
,
S.C.R.
SUPREME COURT REPORTS
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 ins. 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 ward,; would be taken out
of the hands of the Court of Wards while it retained
charge of their estates. We a.re, therefore, inclined
to agree with th'e 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
Com:t of Wards who may have had the task in certain
cases of representing rival interests." 'fhere 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 ot;her 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
I959
Rani Drig Raj
Kuer
v.
Raja Sri
Amar Krishna
Narain Singh
Sarka~].
'959
Rani Drig Raj
Kuer
v.
Raja Sri
Amar Krishna
Narain Sinch
Sarkar].
444
SUPREME COURT REPORTS [1960(2)]
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
com plied 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 impemtive
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
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 ad vantage 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 ~t could not itself effect the settlement.
'
'
•
,
-
S.C.R.
SUPREME COURT REPORTS
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 decreP.s 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 procseds.
on a misconception of its real nature. It overlooks
that the compromise was really between the two wards,
the appella_nt 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
beJ;ween 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
contemplat.es a right in the Court of Wards to make
a contract between two of its W urds.
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. Urn:ler 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
~7
I959
Rani Drig Raj
Kuer
y.
Raja Sri
A mar .K rishlia
Na rain Singh
.Sarkar].
I959
Rani Drig Raj
Kuer
v.
Raja Sri
A mar Krishna
Narain Singh
SarkaY ].
446
SUPREME COURT REPORTS [1960(2)]
often be impossible to carry ?n 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, Baraba_nki, as both the
appellant and the respondent. But that did not make
the Deputy 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 eompromise 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 oftheprinciplesembodiedinOr.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 disabilit;ir.
It is
'
;
S.C.R.
SUPREME COURT REPORTS
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 appointing 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 int!3re!'lts
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 leasjy arguable if the
civil coui;,t could have by a.ny order that it might have
made, prevented the Court of Wards from 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. .
·
I959
Rani Drig Raj
Kuey
v.
Raja SYi
A mar /( rishna
Narain Singh
Sarkar],
I959
Rani' Drig Raj
Kue'
v.
Raja Sri
A mar Krishna
Narain Singh
Sarkar].
448
SUPREME COURT REPORTS [1960(2)]
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 'V ards 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.