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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

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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

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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 "

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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.

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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."

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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

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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