http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 19  

PETITIONER: RANI DRIG RAJ KUER

       Vs.

RESPONDENT: RAJA SRI AMAR KRISHNA NARAIN SINGH

DATE OF JUDGMENT: 14/12/1959

BENCH: DAS, S.K. BENCH: DAS, S.K. SARKAR, A.K. SUBBARAO, K.

CITATION:  1960 AIR  444            1960 SCR  (2) 431

ACT: Court  of Wards-Estates 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 mandatory  U.P. Court of Wards Act, 1912, (U.P. 4 of 1912), s. 56, Code of Civil Procedure, 1908 (5 of 1908),  0. XXXII.

HEADNOTE: 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 under the U. P. Court of Wards  Act,  and placed  them  in  charge  of  the  Deputy  Commissioner   of Barabanki.   Thereupon  the cause titles on 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 appellant’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 cause 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 terms 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 19  

the appeals.  The High Court rejected the applications.  The appellant  contended,  that the compromise  decrees  were  a nullity (i) as the Court of Wards had 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 I  guardian  of  the appellant -who 432 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  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  repre- sented 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 appellant in charge of the Court of Wards though it was also in charge of the interests of the respondent. Per 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  inten- tion  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 one or the other of  the views.   The object of S. 56 was to prevent the  anomaly  of the  same person representing two conflicting 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 ". jagan  Nath  v. jaswant Singh, [1954] S.C.R. 892,  Queen  v. Ingall,  (1876)  2 Q.B.D. 199, Caldow v. Pixwell,  (1876)  2 C.P.D. 562, Hari Vishnu Kamath v. Syed Ahmad Ishaque, [1955] 1 S.C.R. 1104 and Braja Sunder Deb v. Rajendra Narayan Bhanj Deo, (1937) L.R. 65 I.A. 57, referred to.

JUDGMENT: CIVIL  APPELLATE JURISDICTION: CiVil Appeals Nos. 422 &  423 of 1958. 433

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 19  

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  O.  N. Srivastava, for the appellant. H.   N.  Sanyal,  Additional  Solicitor-General  of   India, Bishun Singh and C. P. Lal, for the respondent. 1959.   December  14.  The Judgment of S. 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 (1  of 1869), and in the absence of any disposition  by  the holder  for  the  time being, it appears  to  have  devolved according to the rule of primogeniture. Raja  Udit Narain died in 1927 leaving two sons of whom  the older was Raja Harnam and the younger Kanwar Sarnam.  Kanwar 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 " 434 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 Ramnagar 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 Raja 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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 19  

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 possession.  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 435 family  arrangement being found to be void or voidable,  the appellant  herself filed a suit against 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 I/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 "  I/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  claim  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  bad 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 suits in the High Court at Lucknow, one by the Deputy 436 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  been 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 19  

estate  was  within his jurisdiction.  The  Court  of  Wards retained for it its old name of Ramnagar estate.  The  cause titles of the appeals had 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.  The cause titles of the  appeals then became, Deputy Commissioner, Barabanki I/C Court of Wards  Ganeshpur estate                     Appellant                     versus Deputy  Commissioner, Barabanki I/C Court of Wards  Ramnagar estate                               Respondent      AND Deputy Commissioner, BarabankiI/C   Court   of    Wards Ramnagar estate                       Appellant      versus Deputy Commissioner, BarabankiI/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 the 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 and  the  proceedings therein terminated. When  the  appeals were so compromised, the paperbooks in respect of them  were in the course of preparation. It is not 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, ail Act 56 438

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 19  

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.   In 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 affliction  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 possession 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 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 compromise.  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 bad 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 19  

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 Ishaque (1).  The  intention  of  the legislature has to be gathered from the whole statute. Several grounds are suggested why s. 56 should be held to be imperative.  First, it is said that otherwise, (1)[1955] 1 S.C.R. 1104. 440 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 if s. 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 subject- matter, 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 as 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. 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, and s. 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 represen- tatives appointed under s. 56 are to be named in the  record of the case as representing the wards.  The section does not

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 19  

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 directory provision,  s. 55 would not become otiose. Next it is said that ss. 57 and 58 of the Act also deal with the appointment 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  indicates 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 necessarily 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 442 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 the 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  Wards. 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 ward 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 under ss. 57 and 58,  no  more could  the  legislature  have intended  the  appointment  of representatives under s. 56 obligatory.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 19  

This leads us to the argument based on the object of a.  56. It is said that the object of the section is to 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  in s. 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  wards would be taken out of the hands of the Court of Wards  while it  retained  charge of their estates.  We  are,  therefore, inclined to agree with the 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 Court of Wards who  may have  had  the task in certain cases of  representing  rival interests."  There 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  other 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           444 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 complied 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 imperative 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 19  

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 advantage 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 it could not  itself effect the settlement. 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 decrees 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  proceeds  on   a misconception  of  its real nature.  It overlooks  that  the compromise  was really between the two wards, the  appellant 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  between  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 contemplates  a  right  in  the Court of  Wards  to  make  a contract between two of its Wards.  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.   Under  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 57 446 often be impossible to carry on 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, Barabanki, as both the  appellant  and the   respondent.   But  that  did  not  make   the   Deputy

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 19  

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 compromise 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 of the principles embodied in Or.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 disability. It is 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  a pointing  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 interests  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 least arguable if the civil court could have by any order that  it might have made, prevented the Court of Wards  from

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 19  

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. 448 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 Wards 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.  We may also point out that the compromise petitions were signed by the Deputy Commissioner, Barabanki, twice, once for  each of the parties, and had been ’put into court by the  lawyers respectively  engaged for the parties for the purpose.   We, therefore, think that the contention that there was in  fact no compromise is entirely without force. In  our  opinion,  these  appeals must  fail  and  they  are therefore dismissed with costs. SUBBA  RAO  J.-I  have had the  advantage  of  perusing  the judgment  of  my  learned brother, Sarkar, J.  I  regret  my inability to agree with him. The  facts  of the case and the progressive  stages  of  the litigation  are fully stated in the judgment of  my  learned brother,  and  it is not necessary to restate them  here  in detail.   It would suffice if the factual basis giving  rise to the main controversy in the case be stated. The  appellant  was the owner of Ganesbpur  estate  and  the respondent of Ramnagar estate.  Both of them became wards of the  Court  of  Wards and both the estates  were  under  the management  of the Deputy Commissioner, Barabanki.   Between the  two  estates there was litigation and- at  the  crucial point of time, 449 two appeals, being F.C.A. No. 99 of 1947 and F.C.A. No. 2 of 1948,  were  pending  on  the file  of  the  High  Court  at Allahabad.   The  cause-titles  in  the  appeals  give   the following array of parties F.C.A. No. 99 of 1947 Deputy Commissioner, Barabanki, I/C Court of Wards, Ganeshpur estate, district Barabanki.              Appellant versus Deputy Commissioner, Barabanki, I/C Court of Wards, Ramnagar estate, district Barabanki.             Respondent F.C.A. No. 2 of 1948 Deputy Commissioner, Barabanki, I/C Court of Wards, Ramnagar estate, district Barabanki.             Appellant           versus Deputy Commissioner, Barabanki, I/C Court of Wards, Ganeshpur estate, district Barabanki.             Respondent It  is clear from the said array of parties in  the  appeals

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 19  

that  the same person represented both the estates, and  the Deputy  Commissioner, Barabanki, was both the appellant  and respondent.   It appears that the Court of Wards effected  a settlement   between  the  two  wards  in  respect  of   the outstanding  disputes  between  them,  and,  presumably   as directed  by  the Court of Wards, the  Deputy  Commissioner, Barabanki, filed a petition in the High Court for  recording the  compromise.   The petition was signed by Sri K.  A.  P. Stevenson, I.A.S., Deputy Commissioner, Barabanki, on behalf of both the estates.  On May 2, 1952, the High Court  passed a decree in terms of the said compromise. The said facts give rise to a short but difficult  question, namely,  whether  the  compromise  effected  was  a  nullity entitling the appellant to ignore it and to have the appeals disposed of on merits. The  main argument of Mr. Niamatullah, the  learned  Counsel for the appellant, may be summarized thus: Section 56 of the U.P. Court of Wards Act, 1912 450      (hereinafter  called the Act) imposes a statutory  duty on  the Court of Wards to appoint  separate  representatives when  in a suit there are conflicting claims between two  of its wards, and the Court has no jurisdiction to proceed with such  a  suit and make any order or decree on merits  or  on compromise  unless  such  an appointment is  made.   In  the present  case, admittedly no such appointment was  made  and the   compromise   petition   was  filed   by   the   Deputy Commissioner,  Barabanki,  in  his  dual  capacity  as   the appellant  as  well as the respondent, and,  therefore,  the decree made therein was a nullity.  If it was a nullity, the argument proceeds, the Court should ignore it and dispose of the appeals as if they were still on its file. This  argument, if accepted, would entail the acceptance  of the  appeals.  As I propose to do so, it is  unnecessary  to particularize  the other contentions of the learned  Counsel or  give  my  findings thereon.  For the  same  reason,  the counter-argument of the learned Additional Solicitor General may  conveniently  be confined only to  the  said  argument. While  conceding  that the application under s. 151  of  the Civil  Procedure Code was maintainable if the decree  was  a nullity,  the  learned Counsel for the  respondent  contends that notwithstanding the non-compliance of the provisions of s. 56 of the Act, the High Court had jurisdiction to  record the compromise lawfully effected by the Court of Wards,  and therefore,  the  decree was not a nullity and could  not  be ignored. The question falls to be decided on a true interpretation of the  provisions of s. 56 of the Act.  Section 56 appears  in Chapter  VII  of -the Act dealing with suits.  It  would  be convenient at the outset to read ss. 55 and 56 of the Act. S.   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." S.   56: " When in any suit or proceeding two or more  wards being parties have conflicting interests, 451 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  the  ward  whom  he represents,  subject to the general control of the Court  of Wards." These  two  sections are placed in  juxtaposition  and  they appear  to  be  complementary to  each  other.   Section  55

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 19  

prescribes the mode or proceeding by or against the ward  in a  court.  Ordinarily, he should sue or be sued in the  name of  the  Collector  in charge of his pro.  perty.   It  also visualizes the contingency when a Court of Wards may appoint in its discretion some other person instead of the Collector for  the  Purpose of this section.  Buts. 56  deals  with  a particular  situation,  namely, when there  are  conflicting interests between the wards who are parties to a suit,  and, in  that  event,  a duty is cast on the Court  of  Wards  to appoint  separate representatives for each such  ward.   The object  of  s. 56 is selfevident; for,  in  the  contingency contemplated  by  that section, an  anomalous  situation  is created,  if  the  general  rule  prescribed  by  s.  55  is followed, for both the plaintiff and the defendant would  be the  Collector, a procedure that cannot be tolerated by  any civilised  jurisprudence.   That  apart,  the  procedure  is obviously  detrimental  to the interests of the  wards,  for there  is  every danger of their  respective  interests  not being  protected and properly represented in the court.   To avoid this anomaly and obvious prejudice to the parties,  s. 56  has  been  enacted.   A combined  reading  of  the  said provisions therefore indicates that the procedure, laid down in  s.  55 must, in the contingency contemplated by  s.  56, give way to the procedure prescribed by the latter section. The  next question is what does the word " representative  " in  s.  56 mean ? Does it mean, as the  learned,  Additional Solicitor  General contends, an agent who is entrusted  with the  duty  of assisting the Collector, or., as  the  learned Counsel  for  the appellant argues, one who  represents  the ward   in  a  suit  by  being  brought  on  record  as   his representative  ?  The word " representative "  has  in  law different meanings.  To represent means " to stand in  place of " and a representative 452 is  one,  who stands in the place of another.   The  word  " reprsentative " with prefixes like legal’ or personal’ added or  not, when used with reference to ownership of  land  may mean an heir, executor or legatee.  But in the context of  a suit,  the  word  is also used in the sense  that,  one  who represents another, when the latter is a disqualified person like a minor or a lunatic.  In this category come guardians. They  are  appointed  by court to represent  a  minor  or  a lunatic,  as  the  case may be, and the  suit  without  such representative  cannot legally proceed.  But a  statute  may confer  power  upon  an authority other than  the  court  to appoint a representative to a disqualified person.  That  is the   position   in   the   present   case.    A   statutory representative acts for, and in the place of, a disqualified ward  and  without such valid representative on  record  the suit  cannot  legally proceed, just like in the  case  of  a minor or a lunatic to represent whose interests no  guardian is appointed.  If the intention of the legislature was  only to  provide for the appointment of a separate agent to  help the Collector, who had a dual role to perform, it would have used  the  word " agent " in the section.  That  apart,  the Collector does not require the statutory power to appoint an agent to help him in the conduct of a suit; for, as a  party to  the suit, he can always appoint separate  Advocates  for the  two  wards.  That the word " representative"  does  not mean  an  agent but is intended to convey the  idea  of  one representing  a ward and as such brought on record  in  that capacity,  is made clear by the other provisions of the  Act wherein the same word appears.  Section 57 of the Act reads: " (1) Where any question arises as between two or more wards of such nature that an adjudication upon it by a civil court

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 19  

is  expedient, it shall be lawful for the Court of Wards  to appoint  a  representative  on behalf  of  each  ward.   The representative  so  appointed  shall  prepare  a   statement containing  the point or points for determination and  shall on  behalf of the said wards file the statement in  a  civil court  having  jurisdiction in the form of a  case  for  the opinion of the said court, 453 (2)  The civil Court shall then proceed to hear and  dispose of  the case in the manner prescribed by the Code  of  Civil Procedure, 1908, for the hearing and disposal of suits. (3)  The  case shall be conducted on behalf of the wards  by their representatives appointed under subsection (1) of this section  subject  to  the general control of  the  Court  of Wards." It  is  manifest  from this section that  the  duty  of  the representative  under s. 57 is not to act as a clerk  or  an assistant   to  the  ward  but  to  represent  him  in   the proceedings.   He would be on record representing  the  ward and  it is impossible to contend that the proceedings  under s.  57  of the Act can either be initiated  or  disposed  of without  a  representative being appointed in  that  behalf. Section 58 of the Act reads: "When it appears to the Court of Wards that any question  or dispute  arising between two or more wards is a fit  subject for   reference   to   arbitration,   it   may   appoint   a representative  on behalf of each such ward and require  the said  representatives to submit the question or  dispute  to the  arbitration  of  such  person  or  persons  as  it  may approve." Under this section also the appointment of a  representative on behalf of each ward is a pre-requisite for the initiation and  conduct  of  arbitration proceedings.   Here  also  the representative  is not appointed to assist the ward  but  to represent  him in the proceedings.  It is a well-known  rule of  construction that a similar meaning should be  given  to the  word " representative " in the Act unless  the  context requires  otherwise.   The object of the  appointment  of  a representative  under ss. 56, 57 and 58 -of the Act  is  the same  and  the same meaning should be given  to  that  word, namely,  that  the  representative  appointed  is  one   who represents  the  ward in the proceedings and is  brought  on record as such. Laying emphasis on the word " conduct " or defend " in s. 56 of  the Act and on the omission of the word "  compromise  " therein,  it is contended that the representative  appointed thereunder has no 58 454 power to’ enter into a compromise.  The section does not, in my-View, bear out this construction.  The first part of  the section  enjoins  on  the  Court  of  Wards  to  appoint   a representative to each of the wards and then the second part proceeds   to  state  that  such  a  representative   should thereupon conduct or defend the case.  The later part of the section   does  not  define  the  meaning  of  the  word   " representative  " and limit its scope, but only  brings  out the  idea  that  the  suit shall not  proceed  till  such  a representative   is  appointed.   A  person   appointed   to represent a disqualified person shall have all the powers of a  party  subject  to the limitations  imposed  by  relevant statutes and the only limitation imposed by s. 56 of the Act is  that the said representative is subject to  the  general control  of  the  Court  of  Wards.   It  follows  that  the representative  can enter into a compromise subject, to  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 19  

general control of the Court of Wards.  Assistance is sought to  be  derived  by the Additional  Solicitor  General  from decisions  distinguishing between the powers of a  Solicitor and  a  Counsel and holding that a Solicitor  being  only  a representative  cannot enter into a compromise  without  the consent  of the client, while the latter being in charge  of the entire litigation can do so. In my view these  decisions are  based  upon  the peculiar characteristics  of  the  two branches  of  the  profession  and  cannot  legitimately  be invoked to construe the provisions of s. 56 of the Act. Nor  the fact that the representative appointed under s.  56 of  the Act is subject to the general control of the,  Court of Wards can be relied upon to subvert the operation of  the section itself.  The question of control arises only after a representative  is  appointed and the  appointing  authority cannot  obviously ignore its statutory duty and  purport  to exercise  the duties of representatives in exercise  of  its power of general control over non-existent representatives.  Assuming that the representative has no power to compromise the suit, it does not materially affect the ,question raised in this case.  In that view the authority empowered to do so has to effect the compromise, put the same in court  through the representatives and 455 obtain  a decree thereon.  But that does not  dispense  with the appointment of representatives to conduct and defend the suit, for without such representation the suit itself  could not be proceeded with and a decree could not be obtained  on the compromise. Lastly,  it is said that the provisions of the  section  are directory  and  noncompliance thereof would not  affect  the validity of the compromise decree, if in fact the compromise was effected bona fide by the competent authority.  The word " shall " in its ordinary import is "obligatory ", but there are  many  decisions  wherein  the  courts  under  different situations  construed  the word to mean " may  ".  The  High Court  in  this case relied upon the  observations  of  this Court  in  Jagan  Nath v. Jaswant Singh  (1)  which  run  as follows: "  It is one of the well recognized rules of  interpretation that  a  provision  like  this should be  held  to  be  non- mandatory  unless  non-compliance with  the  provisions  was visited with some penalty." A perusal of the judgment does not disclose that this  Court has laid down any such inflexible rule of construction.   It was  construing  the  word  "  shall  "  in  s.  82  of  the Representation  of  the People Act, 1951,’ which  lays  down that a, petitioner shall join as respondent to his  petition all  the candidates who were duly nominated at the  election other  than himself.  Having regard to the other  provisions of  the  Act,  particularly  to  s.  85  thereof,  and   the construction put upon a similar word in Order XXXIV, rule 1, of the Civil Procedure Code, this Court held that the word " shall  "  in s. 82 was only directory.  This Court  did  not purport to lay down any broad proposition that whenever  the word  " shall " is used in a statute it should be  construed as  directory  unless non-compliance with the  provision  is made  penal.   Nor the decision in The Queen v.  Ingall  (2) lays  down any such wide rule of construction.  Under s.  42 of  Valuation (Metropolis) Act, 1869, provision is made  for the performance of several acts within the times  prescribed therein.  Every matter connected with the valuation must  be transacted before the 31st of March, for the (1) (1954) S.C.R. 892, 901. (2) (1876)  Q.B.D. 199, 207

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 19  

456  list  comes  into force on the 6th April.   But  there  are other  sections whereunder provision is made  for  preparing the  valuation lists where there has been omission  to  make them  according  to  the  requirements  of  the  Act.    The observance of times is not enforced by penalties.  The Court held  that, notwithstanding the use of the word "shall "  in s. 42 of the Valuation (Metropolis) Act, 1869, the provision is  only directory. In construing the provisions in  such  a manner, Lush, J., observed: "  We  ought  to look at the object  which  the  legislature contemplated in passing the Valuation (Metropolis) Act, 1869 But we must, in construing the Act, strike a balance between the  inconvenience of holding the list to be null  and  void and  the risk of allowing injury to be done by the delay  in making  the list; the former seems to me the  greater  evil, and therefore in my opinion we ought to hold the list to  be valid." This  judgment is, therefore, an authority for the  position that  the  intention of the legislature should  be  gathered from  the object of the Act and also by striking  a  balance between  the possible inconvenience that would be caused  in accepting  the one or other of the views.  The  decision  in Caldow v. Pixwell (1) deals with the provisions of s. 29  of the Ecclesiastical Dilapidations Act, 1871, which says  that within  three  calendar months after the  avoidance  of  any benefice,  the bishop shall direct the surveyor,  who  shall inspect  the buildings of such benefice, and report  to  the bishop  what  sum,  if any, is required  to  make  good  the dilapidations  to which the late incumbent or his estate  is liable.   It  was held that the provisions as  to  the  time within which the bishop is to direct the surveyor to inspect and  report  upon  the buildings of  a  benefice  after  its avoidance is directory only, and not imperative; and that  a direction  to inspect and report made by a bishop more  than three months after the avoidance of a benefice may be valid. Denman,  J.,  restates the following rules of  guidance  for construing  such provisions: (i) The scope and object  of  a statute (1)  (1876) a C.P.D. 562. 457 are the only guides in determining whether its pro.  visions are  directory  or  imperative; (ii) in the  absence  of  an express provision the intention of the legislature is to  be ascertained  by  weighing  the  consequences  of  holding  a statute to be directory or imperative; and (iii) the statute imposes  a  public  duty upon the Bishop, and  it  does  not create  a  power  or privilege for the benefit  of  the  new incumbent  as  a private person.  On  those  grounds,  among others,  the learned Judge held that the provision was  only directory.  Venkatarama Ayyar, J., in Hari Vishnu Kamath  v. Syed Ahmad Ishaque (1) made the following observ. ations: "  They (the rules) are well-known, and there is no need  to repeat  them.   But  they  are all of  them  only  aids  for ascertaining the true intention of the legislature which  is the  determining factor, and that must ultimately depend  on the context." In  Craies on Statute Law, 5th Edn., the  following  passage appears, at p. 242: "No universal rule can be laid down as to whether  mandatory enactments shall be considered directory only or  obligatory with  an implied nullification for disobedience.  It is  the duty  of  Courts  of  Justice to try  to  get  at  the  real intention  of the legislature by carefully attending to  the whole scope of the statute to be construed."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 19  

Bearing the aforesaid principles in mind let us look at  the provisions of s. 56 of the Act.  The object of s. 56 of  the Act is to prevent the anomaly of the same person occupying a dual  role of plaintiff and defendant and to provide for  an effective machinery to safeguard the interests of the  wards who are placed under the supervision of the Court of  Wards. Should  it be held that the appointment of a  representative was  at  the discretion of the Court of  Wards,  the  entire object of the section would be defeated.  A person for whose ’benefit the provision was conceived would be represented by the  opposite party, a situation anomalous in  the  extreme. On  the other hand, no evil consequences can  ordinarily  be expected to flow if the provision be (1)  (1955) 1 S.C.R. 1104, 1126. 458 construed as mandatory.  A statutory body like the Court  of Wards  can be relied upon to discharge the duties cast  upon it  by s. 56 of the Act.  Even if it fails, the suit or  the appeal,  as  the case may be, will be heard on merits  or  a fresh  compromise  may  be  effected  after  following   the prescribed procedure.  The balance of convenience is on  the side  of the provision being construed as  mandatory  rather than  as directory.  In the circumstances, I must hold  that the  intention of the legislature is to make  the  provision mandatory and therefore the word "shall" cannot be construed as  "may"  as  contended  by the  learned  Counsel  for  the respondent.  I  cannot accept the contention of the  learned  Additional Solicitor  General that even though s. 56 is mandatory,  the non-compliance  of  the provisions of the section  does  not affect the validity of the compromise.  If, as I have  held, the appeal could not be proceeded with without the statutory representative  on record, the whole  proceeding,  including the passing of the compromise, without such  representative, was null and void. Before  closing the discussion, a reference to the  decision of  the Judicial Committee in Braja Sunder Deb  v.  Rajendra Narayan  Bhanj Deo (1) is necessary, as strong  reliance  is placed  upon  it  in support of  the  contention  that  non- compliance  of  the mandatory provision of s. 56  would  not affect the validity of the compromise decree.  There a  suit between  Raja  Rajendra  Narayan Bhanj Deo  and  Raja  Braja Sunder Deb, who became the ward of the Court of Wards  after the   institution  of  the  suit,  was   compromised.    The compromise  petition was put in the Court and a  decree  was made thereon.  Before the High Court, for the first time,  a technical  objection  was  taken.   The  Subordinate   Judge decreed  the  suit in terms of the compromise and  a  formal decree dated December, 22, 1922, was drawn and in the cause- title  of the decree the manager of the Court of  Wards  was shown  as  second  defendant  while  he  should  have   been described  as  the -representative of the  first  defendant. But in (1)  (1937) L.R. 65 I.A.57. 459 the  body  of the decree it was clearly mentioned  that  the manager  of  the  Court of Wards  had  been  substituted  as guardian  for  the ward.  It was contended therein  for  the appellant that as the manager of the Court of Wards was made an additional defendant and not made a guardian ad litem  of the  appellant,  the compromise decree in the suit  was  not binding  on  him.   The  Judicial  Committee  negatived  the contention  and held that if the proper parties were on  the record and were dealt with on the correct footing, the  mere want  of  formality would not make void the bargain  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 19  

parties  and  the decree of the Court.  But in  the  present case,  a mandatory provision had not been complied with  and the suit proceeded with the Collector as both the  plaintiff and  defendant.   The wards were not  represented  by  their separate  representatives  for  the simple  reason  that  no representatives were appointed.  There is no analogy between that decision and the present case. For the aforesaid reasons I hold that the compromise  decree was a nullity and the appeal must be deemed to be pending on the file of the High Court. In  this  view, I am relieved of the duty of  expressing  my opinion on the other questions raised and seriously  argued, namely,  whether  the  Court of Wards has  power  to  settle conflicting  disputes between two wards and whether  such  a settlement would be a lawful agreement within the meaning of Order XXIII, rule 3 of the Code of Civil Procedure. In the result, the order of the High Court is set aside  and it is directed to dispose of the appeals in accordance  with law.  The appellant will have his costs here and in the High Court. By  the  Court:-In  accordance  with  the  opinion  of   the majority, the appeals stand dismissed with costs. 460