1. This is an appeal by the plaintiff against a judgment of the learned First Subordinate Judge of Midnapore, dated the 16th of May 1913, dismissing the plaintiff’s suit. The plaintiff brought the suit for a declaration that a kabala, dated the 7th June 1890, executed by the Collector on behalf of the Court of Wards in favour of the late father of the defendant, and that a subsequent kabala, dated the 11th February 1901, executed in manner aforesaid in the like favour, are invalid and illegal, and for an order restoring the plaintiff to possession of the properties comprised in such kabalas and for certain alternative and consequential relief.
2. The issues of law and fact were settled by the learned Judge on the 9th of December 1912.
3. The defendant, on the 16th of February 1913, applied to the learned Judge for the trial of the 1st three issues under the provisions of Order XIV, Rule 2, Civil Procedure Code. The learned Judge assented to that application. The first three issues were in the following terms: 1. Is the suit barred by limitation? 2. Is the suit bad for not making the Secretary of State for India in Council and the Court of Wards parties to the suit? 3. Is the suit maintainable, in respect of the properties said to be debutter in the plaint, in the present form? For the purpose of determining these three issues the learned Judge assumed, as he was bound to, the correctness of all the allegations contained in the plaint.
4. These allegations of fact so far as material to the present appeal are very simple.
5. On the 30th July 1886 upon her own application the plaintiff was declared to he a disqualified proprietor and the Court of Wards took charge of her estate. On the 7th of June 1890 by a kabala the Court of Wards sold and conveyed to the father of the defendant the property to which this suit relates other than and except the Mouzas Sakdubi and Pirote. By a further kabala, dated the 11th of February 1901, the Court of Wards conveyed to the father of the defendant the two Mouzas Sakdubi and Pirote. The plaintiff does not state whether this second kabala was executed for consideration or by way of further assurance or otherwise.
6. The Court of Wards, on the 1st of August 1911, released the property of the plaintiff from its charge. The present suit was instituted on the 31st of May 1912. The plaintiff on the present appeal before us has urged that the course the learned Judge adopted in disposing of the first three issues of law was illegal. The argument is based upon the terms of Order XIV, Rule 2, Civil Procedure Code It is argued that the rule only applies to cases in which the issues of fact have not been settled. The wording of the rule is opposed to such a construction. The. words “for that purpose may, if it thinks fit, postpone the settlement of the issuas of fact until after the issues of law have been determined” clearly indicate that the rule also applies to cases where the Court has not postponed the settlement of the issues of fact.
7. It is said that the decision in the case of Rai Yatindra Nath Chowdhury v. Hari Charan Chowdhury 26 Ind. Cas. 954 : 20 C.L.J. 426 is in accordance with the argument put forward on behalf of the plaintiff. But as I read tint decision all that was decided in that case was that the course adopted by the trying Judge in that particular case was highly inconvenient and his procedure ought to be set aside by the Appellate Court. I think there is no force in this argument raised on behalf of the appellant. The next argument is as to whether the suit is barred by limitation as regards the lands comprised in the kabala of the 7th of June 1890, It is argued that as the plaintiff was a disqualified proprietor whose estate was under the charge of the Court of Wards time did not run against her during the period the Court remained in charge.
8. Under the terms of the Indian Limitation Act, 1908, no other cause of disqualification than those mentioned in the Act can be admitted to save limitation. The only disqualifications that Sections 6, 8 and 9 of the Act recognise are minority, insanity and idiocy. It is argued that notwithstanding this when the plaintiff was declared a disqualified proprietor and the Court of Wards Act (IX of 1879, B.C.) vested the right of possession of her property in the Court of Wards, and that the possession of the defendant and his father could not become adverse as regards the plaintiff until the Court of Wards released the property of the plaintiff on the 1st of August 1911.
9. This argument in substance rests upon the wording of Section 35 of Act IX of 1879. No doubt the words “directing that possession be taken of such person and property” occur in that Section. But the whole scheme of the Act, as is manifest from many sections, is the taking of the property of the disqualified proprietor under the charge of the Court of Wards. The position of the Court of Wards being that of a guardian of the disqualified proprietor, the possession of the guardian would be that of the ward and the plaintiff in that view was in possession when the Court sold the property in June 1890. Moreover, the Act preserves the right of suit of the disqualified proprietor. No one except the disqualified proprietor can bring a suit in relation to property taken charge of by the Court of Wards. It is true that by Part VII of the Act restrictions have been placed upon the right of the disqualified proprietor to sue. The fact, however, remains that no one except the plaintiff could have maintained a suit with reference to the properly taken charge of by the Court of Wards.
10. I think, therefore, that the learned Judge came to a correct conclusion when he found that the plaintiff’s suit as regards the properties comprised in the kabala of 7th of June 1890 was barred by limitation under Articles 91 and 142 of the Indian Limitation Act. I may mention in passing that the learned Vakil for the appellant informed us that he makes no case to bring the plaintiff’s suit within Section 18 of the Indian Limitation Act, the case of the plaintiff being that she knew of the fraud all along and applied to the Court of Wards for release of her property in order to institute a suit.
11. I will now proceed to deal with the case so far as it relates to the two Mouzas Sukdabi and Pirote. In the cause-title of the suit as given in the plaint as originally presented to the Court, the character in which the plaintiff brought the suit as regards these two mouzas was not given, although it is manifest from the body of the plaint and the prayers thereto that the plaintiff was suing to recover possession of the two mouzas comprised in the habala of the 11th February 1901 as the shebait of certain idols. On the 12th of April 1913 the plaintiff applied to the learned Judge for leave to amend the plaint by stating in the cause-title that she sued on behalf of herself and as shebait of the idols and for making the necessary and consequential amendments in the body of the plaint. The learned Judge gave the necessary leave and the amendments were duly made. By reason of such amendment the learned Judge has held that there has been the addition of a new plaintiff to the suit and, therefore, the suit as regards the two mouzas is barred under Articles 91 and 112 of the Indian Limitation Act. I am unable to agree with the view taken by the learned Judge. It seems to me abundantly clear on reading the plaint as originally filed that the plaintiff was suing as shebait of the idols as regards these two mouzas. Order VII, Rule 4, does not require that when the plaintiff sues in a representative capacity that fact should be stated in the cause-title of the plaint, although no doubt that is a convenient place to state it. The amendments made in the plaint by the leave of the Judge cannot, in any view. I think, amount to an addition or substitution of a new plaintiff within the meaning of Section 22 of the Indian Limitation Act. Nor am I able to agree with the view of the learned Judge that this suit, so far as regards the two mourns, is governed by Article 91 of the Limitation Act. The case the plaintiff sets up in her plaint is that these two mouzas belonged to the idols and that the conveyance of thorn by the Court of Wards to the defendant’s father was a nullity. Obviously Article 91 does not apply to such a case. I think that there is a case which ought to be tried so far as relates to those two mouzas. How or why they were transferred to the father of the defendant by the It abala of 11th of February 1901 does not appear and that, of course, will be a material matter to inquire into in the course of the trial. The Court of Wards could only deal with the property of the plaintiff in manner provided by Section 18 of the Court of Wards Act (IX of 1879.)
12. I think, therefore, we ought to reverse the decree passed by the lower Court and remand the case for trial on the issues so far as they relate to the two mouzas Sukdubi and Pirote comprised in the kabala of the 11th of February 1901.
13. The decision of the learned Judge as to the suit being barred by limitation so far as regards the property comprised in the kabala of the 7th of June 1890, will remain unaffected by this order of remand. The costs of the present appeal will be costs in the suit.
14. I agree.