The ODISHA COURT OF WARDS ACT, 1947

Orissa Act No. 26 of 1947
*THE ORISSA COURT OF WARDS ACT, 1947
[Received the assent of the Governor-General on the 6th August 1947, first pub-
lished in an extraordinary issue of the Orissa Gazette, dated the 21st August 1947]
AN ACT TO CONSOLIDATE AND AMEND THE LAW RELATING TO
THE COURT OF WARDS IN ORISSA
WHEREAS it is expedient to consolidate and amend the law relating to
the Court of Wards within the State of Orissa.
It is hereby enacted as follows :
CHAPTER-I
Preliminary
1. Short title, extent and commencement.- (1) This Act may be called
the Orissa Court of Wards Act, 1947.
(2) It [extends] to the whole of the State of Orissa.
(3) It shall come into force at once.
2. Repeal and savings.- (1) The enactments mentioned in the Schedule
are hereby repealed to the extent specified in the fourth column thereof.
(2) All rules and appointment s made, notifications and orders issued,
authorities and powers conferred, farms and leases granted, rights acquired,
liabilities incurred and other things done under any of the said enactments shall,
so far as they are consistent with this Act, be deemed to have been respectively
made, issued, conferred, granted, acquired, incurred and done under this Act.
3. Saving of jurisdiction of High Court.- Nothing in this Act shall be
construed to affect or in any way to derogate from any power possessed by any
High Court of judicature over the persons and estates of infants, idiots and lunatics.
* Published vide Orissa Gazette Extraordinary/21.8.1947. For Statement of Objects and
Reasons, see Orissa Gazette Extraordinary/ 20.1.1947, p. 28 ; for Report of the Select
Committee, see Orissa Gazette Extraordinary/23.5.1947, and for Proceedings, in the
Assembly, see Proceedings of the Orissa Legislative Assembly, 1947, Volume 3, p. 183.
The Odisha   Gazette
EXTRAORDINARY
PUBLISHED BY AUTHORITY
No. Date : 21st August 1947
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4. Definitions.- In this Act, unless there is anything repugnant in the
subject or context-
(a) "The Court" means the Court of Wards;
(b) "Minor" means a person who has not completed the age of twenty-one
years;
(c) "Property" includes both immovable property and movable property;
(d) "Proprietor" means a person who owns or has a life interest in land
either solely or as a co-sharer;
(e) "Ward" means a person who is under the charges of the Court or
whose property Is under such charge.
CHAPTER-II
Constitution, Jurisdiction and Powers of the Court of Wards
5. Court of Wards.- (1) The Revenue Commissioner shall be the Court of
Wards for the areas to which this Act extends.
(2) The Court shall deal with every person and every property of which it
may take or ret ain charge under this Act, or which may be placed under it s
charge by order of a competent Court, in accordance with the provision of this
Act.
6. Control of State Government.- The Court shall be subject to the
control of the State Government and the State Government may, if they think fit,
revise, modify or reverse any order passed or proceedings taken under this Act,
whether a petition is presented against such order or proceeding or not.
7. Power of the Court how exercised.- The Court may exercise all or
any of the powers conferred on it by this Act through the Collector of the district
within the limits of which any part of property of a ward is situated or through any
other person whom it may at any time appoint in that behalf ; and may confer any
of its powers on any such Collector or person and withdraw any powers so
conferred.
8. Appeals.- An appeal shall lie from every order passed under this Act by
a Collector to the Court.
9. Control of Court.- All orders or proceedings of the Collector or other
person as aforesaid under this Act shall be subject to the supervision and control
of the Court, and the Court may, if it thinks fit, revise, modify or reverse any such
order or proceeding whether an appeal is presented against such order or
proceeding or otherwise.
CHAPTER-III
Enquiry and assumption of superintendence
10. Disqualification.- The following properties shall be deemed to be
disqualified for the management of their property ;
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(a) minors;
(b) women declared by the State Government to be incapable of managing
their property ;
(c) proprietors adjudged by a competent Civil Court to be of unsound mind
and incapable of managing their property;
(d) proprietors declared by the S tate Government to be in cap able of
managing their property owning to any physical or mental defect or infirmity
rendering them unfit to manage their property ;
(e) proprietors declared by the S tate Government to be incap able of
managing their property owing to their having been convicted of a non-bailable
offence and being unfitted by vice or bad character; and
(f) proprietors declared by the S tate Government to be incap able of
managing or unfitted to manage their property owing to -
(i) their having entered upon a course of wasteful extravagance likely
to dissipate their property, or
(ii) their failure without sufficient reason to discharge the debts and
liabilities due by them, or
(iii) their ordinarily not residing in the State of Orissa, or
(iv) their persistent failure to discharge the duties imposed on them by
any law for the time being in force :
Provided that no such declaration under Sub-clauses (i) and (ii) shall be
made unless tire State Government are satisfied-
(a) that the aggregate annual interest payable at the contractual rate on
the debts and liabilities due by such proprietors exceeds one-third of the average
annual profits of the preceding five years; and
(b) that such extravagance or such failure to discharge the said debts and
liabilities is likely to lead to the dissipation of property.
11. Immediate protection of disqualified heirs.- (1) Whenever a Collector
receives information that a proprietor of land situated, in his district has died and
he has reason to believe that the heir of such proprietor is, or should be declared
to be disqualified under Section 10-
(a) he may take such steps and make such orders as he thinks proper
for the temporary custody and protection of the property and of all
deeds, documents or papers relating to the property which he has
reason to believe to belong to the heir;
(b) he may call upon any other Collector in whose jurisdiction any
property or any deeds, documents or papers belonging to the
proprietor may be, to take charge of the same ; and thereupon such
other Collector shall have the same power with respect to such
property, deeds, documents and paper within his district as are
conferred by this section on the first-mentioned Collector;
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(c) if the heir be a minor, he may direct that the person, if any, having
custody of the minor shall produce him or cause him to produce at
such place and time and before such person as he appoints, and
may make such order for the temporary custody and protection of
the minor as he thinks proper :
Provided that where the minor is a female and belongs to a class ,of
females who do not usually appear in public, her production shall be required
only in accordance with the manners and customs of the country.
(2) Whenever a Collector proceeds under this section he shall forthwith
report his action for the information of the Court.
12. Recovery of expenditure.- All expenses incurred by a Collector
acting under Section 11 shall whether the property is afterwards taken under the
superintendence of the Court or not, from a charge upon the property concerned,
and shall be recovered from the owner of such property, or from the person whom
the Collector shall find to be in possession of such property, as a public demand
under the provisions of the Bihar and Orissa Public Demands Recovery Act,
1914 (B. and O. Act IV of 1914) or, in any area where the said Act is not in force,
as an arrear of land revenue under the provisions of the law for the time being in
force in such area for the recovery of arrears of land revenue.
13. Report by a Collector.- Whenever any Collector, after making such
enquiry as he deems necessary, has reason to believe that any proprietor in his
district is or should be declared to be disqualified under Section 10, he shall
submit a report to the Court setting forth all the circumstances of the case :
Provided that nothing in-this section shall be construed as affecting the
power of the Court or the State Government to call for a report on any case if
deemed necessary.
14. Proprietor to be given opportunity to be heard and to adduce
evidence.- (1) Before reporting to the Court under Section 13 that a proprietor
ought to be declared that disqualified under Clause (b), (d), (e) or (f) of Section
10, the Collector shall give notice to-such proprietor and afford him a reasonable
opportunity to be heard and to. adduce evidence.
(2) All questions as to whether the provisions of this section have been
complied with shall be decided by the State Government whose decision shall
be final and shall not be called into question of any Court.
15. Report by Court.- The Court shall consider the Collector's report and
except in the case of the female proprietors not being minor, whom it decides to
leave in charge of their property, shall report the case to the State Government
with its recommendation and pending the receipt of orders shall have power to
take such steps as it may deem, necessary for the protection of the person and
property of the proprietor in question.
16. Superintendence by Court of property of a disqualified proprietor.-
The State Government on receipt of the Court's recommendation may, in any
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case failing under Clause (b), (d), (e) or (f) of Section 10, declare the proprietor to
be disqualified, and in all such and other cases falling under Section 10, may
order the Court to assume the superintendence of the property of the proprietor.
17. Superintendence by Court of the person of a disqualified
proprietor.- Where the Court assumes the superintendence of the property of a
person falling under Clause (a), (c) or (d) of Section 10, it may with the previous
sanction of the State Government assume the superintendence of his person
also :
Provided that nothing in this section shall authorize the Court to assume
the superintendence of the person of a female who has an adult husband and is
in his custody.
18. Proprietor not to be declared disqualified unless on ground of
public interests.- The State Government shall not declare any proprietor to be
disqualified under Clauses,(d), (e) and (f) of Section 10 unless satisfied that it is
expedient in the public interest that his property should be managed by the
Court, and a statement to this effect shall be interested in the declaration made
by the State Government under Section 16.
Provision to meet case of undivided Hindu families and co-sharers.- (1)
The State Government shall not order the Court to take the property of an undivided
Hindu family under its superintendence unless all the co-parceners are, declared
to be disqualified under Section 10.
(2) When two or more proprietors are co-sharers otherwise than as co-
parceners in an undivided Hindu family and one of such co-sharers is, or is
declared to be, disqualified under Section 10, the State Government may order
the Court to institute a suit for partition on behalf of the disqualified proprietor and
to take under its superintendence the property allotted to such proprietor in the
partition.
19. Application by proprietor himself.- A proprietor may apply to the
State Government to have all his immovable property and such part of his movable
property as he may specify placed under the superintendence of the Court, and
the State Government may, on being satisfied that it is expedient in the public
interest that such property should be managed by the Court, make a declaration
to that effect and order the Court to assume the superintendence of such property.
20. Notification of assumption of superintendence.- (1) Whenever under
Section 16, 17 or 20 the S tate Government order the Court to t ake under its
superintendence the person or property of a proprietor or both, such order of the
State Government, together with any declaration made under the aforesaid
sections, shall be notified in the gazette. The notification shall specify the Collector
who shall discharge the duties imposed upon a Collector by this Act in respect of
such person or property or both, as the case may be.
(2) Consequences of such notification - Such proprietor shall be deemed
to have become a ward under Court, from the date of the said order of the State
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Government and the superintendence of his person or property or both shall take
effect from the said date, and as to property shall, subject to the provisions of the
second proviso to this Sub-section, extend to all movable and immovable property
belonging to him at the date of the order, or to which he shall afterwards become
in any way entitled whilst he continues under such superintendence :
Provided that it shall be in the discretion of the Court to assume or refrain
from assuming the superintendence of any property which the ward may acquire
otherwise than by inherit ance subsequent to the date of order of the S tate
Government under Section 16, 17 or 20 :
Provided further that where the order of the State Government is under
Section 20, the superintendence of the Court over the movable-property of the
proprietor shall extend only to such part of that property as it was specified in his
application under that section.
CHAPTER-IV
Management and Guardianship
21. Collector to take charge of ward's property.- When the Court has
assumed the superintendence of the property of a ward, the Collector specified
in the notification under Section 21 or if so directed by the Court, the Collector of
the district in which any part of the property is situated shall take possession
and custody of such property on behalf of the Court.
22. Powers of Collector in so doing.- It shall be lawful for such Collector-
(a) to order any person in possession of any movable property to the
possession of which the ward is entitled or of any accounts or papers relating to
the property of such ward, to deliver up such movable property , accounts or
papers;
(b) in case there is reason to believe that any movable property to the
possession of which the ward is entitled or any accounts or papers relating to
the property of the ward are to be found in any room, box or receptacle within any
house in the actual possession of the ward, to break open such room, box or
receptacle or authorize the same to be broken open for the purpose of searching
for such property, accounts or papers;
(c) to order any person who is or has been in the employ of the ward, and
any person who was in the employ of the deceased proprietor, if any, from whom
the ward derives his title, to attend before him for examination and to defray the
necessary expenses of any person so attending out of the assets of the estate;
(d) to order all holders of tenures on the ward's property to produce their
titles before him.
23. Allowances for ward and family .- The Court may , from time to
time, determine what sums shall be allowed for the expenses of the ward and of
his family and dependents.
24. Custody, residence, education and marriage of ward or minor
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relatives.- The Court may make such orders and arrangements, as to it may
seem fit, in respect of the custody, residence, education and marriage-
(a) of any ward whose person is for the time being under its superintendence;
(b) of any minor child, minor brother, or minor sister of such ward, who, in
the opinion of the Court, is entitled to maintenance at the charge of the ward's
estate;
(c) of the ward's next male heir being a minor and also so entitled to
maintenance.
25. Appointment, etc. of managers and guardians.- (1) The Court
may appoint managers for the property, and guardians for the person, of any
ward, and may control or remove any manager or guardian so appointed:
Provided that it shall not appoint a guardian for a person who has become
a ward in pursuance of an order under Section 20 or who has been declared to be
disqualified under Clauses (e) and (f) of Section 10.
(2) Any appointment made under this section shall terminate when the
Court ceases to exercise superintendence over the person for whom a guardian,
or over the property for which a manager, has been appointed,
26. Collector to act if there are none.- If no manager of the property or
guardian of the person of a ward is appointed by the Court, or the office is
temporarily vacant, the Collector specified in the notification under Section 21, or
any other Collector whom the Court may appoint in this behalf, shall be competent,
under the control of the Court, to do anything that might be done by such manager
or guardian.
27. Who may and may not be guardians.- (1) No person being the next
legal heir of a ward, or appearing to have a direct or indirect advantage in the
death or continued disqualification of such ward, shall be appointed guardian of
such ward :
Provided that the mother of a ward, or any person appointed guardian by
the Will of a person authorised to make such appointment may be appointed
guardian by the Court at its discretion.
(2) A female guardian shall be appointed for a female ward, and a male
guardian for a male ward above seven years of age, unless, in any case, the
Court, for special reasons, shall direct otherwise :
Provided that no guardian shall ordinarily be appointed for a female ward if
she has no adult husband.
28. Duties of guardians.- A guardian appointed under Section 26 shall
be charged with the custody of the ward, and subject to the control of the Court,
shall make suitable provision for his maintenance and health, and, if he be a
minor, for his education, and for such other matters as are required by the personal
law to which the wards is subject, and shall-
(a) give such security, if any, as the Court thinks fit, for the due performance
of his duty;
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(b) submit such accounts as the Court may direct;
(c) pay the balances due from him thereon;
(d) continue liable to account to the Court after he has ceased to be
guardian for his receipts and disbursements during the period of his guardianship;
(e) apply for the sanction of the Court to any act which may involve expenses,
not previously sanctioned by the Court; and
(f) be paid such allowance out of the property of the ward as the Court
thinks fit.
29. Powers of manager.- Every manager appointed by the Court shall
have power, subject to the control of the Court, to collect the rents of land placed
under his charge, as well as all other money due to the ward, and to grant
receipts therefor, and may, under the orders of the Court, grant or renew such
leases as may in his opinion be necessary for the good management of the
property, and do all such lawful acts as may be generally or specially authorised
by the Court to do for the good management of the property.
30. Duties of manager.- Every manager appointed by the Court shall
manage the property placed under his charge diligently and faithfully and shall-
(a) give such security, if any, as the Court thinks fit, duly to account for
what he may receive in respect of the rents and profits of the property under his
charge;
(b) keep such accounts in such form and submit them at such times as
the Court may direct;
(c) deal with all moneys received by him in such manner as the Court may
direct;
(d) apply for the sanction of the Court to any act which may involve the
property in expense not previously sanctioned by the Court;
(e) be responsible for any loss occasioned to the property by his negligence
or wilful default;
(f) continue liable to account to the Court after he has ceased to be manager
for his receipts and disbursements during the period of his managership; and
(g) be paid such allowance out of the property of the ward as the Court
thinks fit.
31. Employees of Court deemed to be public servants.- Every guardian,
manager, or other servant of the Court shall be deemed to be public servant
within the meaning of Section 21 of the Indian Penal Code 1860 (XLV of 1860)
and in the definition of legal remuneration contained in Section 161 of the said
Code, the word "Government" shall, for the purposes of this section, be deemed
to include the Court.
32. Sums due to Court recoverable as public demands.- Every sum
due to the Court from a manager or guardian or form the sureties of a manager or
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a guardian or from any officer or servant employed under the Court or from the
sureties of such officer or servant shall be recoverable as public demand under
the provisions of the Bihar and Orissa Public Demands Recovery Act, 1914 (B.
and O. Act IV of 1914) or, in any area where the said Act is not in force, as an
arrear of land revenue under the provisions of the law for the time being in force in
such area for the recovery of arrears of land revenue.
33. Court may order guardian or manager to make over property.-
The Court may order any past or present manager or guardian or past or present
officer subordinate to a manager or guardian to deliver up his accounts or any
property which may be in his possession within such time as may be fixed by
the Court.
34. Regulation of expenditure.- Unless the Court otherwise directs, all
moneys received by, or on behalf of the Court on account of the property of any
ward, shall be employed in meeting the charges included in Class I hereinafter
specified before they are employed in meeting the charges in Classes II and III
hereinafter specified, and in meeting in charges in Class II before they are
employed in meeting those in Class III.
Class-I
(a) charges necessary for the maintenance, residence, education, marriage
and indispensable religious observances of the ward and his family;
(b) charges necessary for the management and supervision of the property
of the ward ;
(c) charges on account of Government revenue and of all ceases and
other public demands due in respect of such property, or any part of such property.
Class-II
(a) charges on account of rent, cesses or demands due to any superior
landlord, or landlord as the case may be, in respect of any land held on behalf of
the ward ;
(b) the liquidation of debts payable by the ward;
(c) expenses necessary to protect the interests of the ward in the Civil
Courts or otherwise ;
(d) the maintenance in efficient condition of the estates, buildings and
other immovable property and the suitable upkeep of the furniture, equipage, live-
stock and other movable property belonging to the ward.
Class-III
(a) the prevention and relief of distress among the ward's tenantry;
(b) the improvement of the land and property of the ward and the benefit of
the ward and his property generally;
(c) the payment of such charges for the religious observances of the ward
and his family and of such religious, charitable and other allowances and of such
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donations befitting the position of the ward's family, as the Court may authorise
to be paid;
35. Disposal of surplus money.- If the ward is a female of sound mind/
who has completed her age of twenty-one years, or a male who has completed
his age of twenty-one years, whose property is under the charge of the Court
under the provisions of Clauses (e) and (f) of Section 10 or under Section 20, any
surplus which remains after providing, so far as the Court may think fit, for the
objects mentioned in Section 35 shall be paid to such ward :
Provided that before paying any portion of such surplus to such ward the
Court may deduct therefrom and retain at its disposal any sums which it may
consider necessary to retain-
(1) as a working balance for the management of the property and expenses
incidental thereto ;
(2) in order to make provision for any special charges which are expected
to become payable on account of the property, and which probably cannot be
met from the expected surplus of the following years.
36. Power to invest surplus.- If the ward is not a female as aforesaid,
and if any surplus remains after providing so far as the Court may think fit, for the
objects mentioned in Section 35, the same shall be applied in the purchase of
other landed property or inverted at interest on the security of-
(a) promissory notes, debentures, stock and other securities of the Central
Government or the Government of the United Kingdom of Great Britain and Ireland;
(b) bonds, debentures and annuities charged by the Parliament of the
United Kingdom before the fifteenth day of August, 1947 on the revenues of India
or of the Governor-General in Council or of any Province;
(c) stock or debentures of or shares in railway or other companies, the
interest whereon has been guaranteed by the Secret ary of State for India in
Council ;
(d) debentures or other securities for money paid by or on behalf of any
municipal body under the authority of any Central Act or Provincial Act or Act of
the Legislature of a Part 'A' State ;
(e) such other securities, stocks or shares, guaranteed by the Central
Government or the Provincial Government as the Court shall deem fit; or
(f) first mortgages of immovable property situate in Part 'A' States and Part
'C' States provided that the property is not a lease-hold for a term of years and
that the value of the property exceeds by one-third or if consisting of buildings,
exceeds by one-half, the mortgage-money.
37. Disabilities of wards.- (1) A ward shall not be competent-
(a)  to transfer or create any charge on, or interest in, any part of his
property which is under the superintendence of the Court, or to
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enter into any contract or to make any acknowledgement involving
him in pecuniary liability personally or in respect of such property;
but nothing in this clause or in Section 25 shall be deemed to affect
the capacity of a ward to enter into a contract of marriage ; provided
that he shall not incur in connection therewith any pecuniary liability,
except such as, having regard to the personal law to which he is
subject and to his rank and circumstances, the Court may, in writing,
declare to be reasonable;
(b) to grant valid receipts for the rents and profits arising or accruing
from such property or for debts or other moneys due to the estate;
(c) to adopt, or to give a written or verbal permission to adopt, without
the previous consent of the Court ;
(d) to dispose of his property by Will without the previous consent of
the Court:
Provided first, that the Court shall not withhold its consent under Clause
(c) or (d) if the adoption or testamentary disposition is not contrary to the personal
or special law applicable to the ward, and does not appear likely to cause pecuniary
embarrassment to the property, or to lower the influence or respectability of the
family in public estimation :
Provided secondly, that the provisions of Clauses (c) and (d) shall not
apply to any proprietor in regard to whose property a declaration has been made
under Section 20 :
Provided thirdly , that nothing cont ained in this Act shall af fect the
competency of a ward to surrender his estate in accordance with the provisions
of Section 4 of the Orissa Estates Abolition Act, 1951 (Orissa Act I of 1952).
(2) No claim under Section 68 of the Indian Contract Act, 1872 (IX of 1872)
shall be enforceable against the property of a ward which is under the
superintendence of Court; but the Court may, in its discretion, satisfy in whole or
in part, any such claim.
38. Powers of Court as to property under its superintendence.- The
Court may mortgage or sell the whole or any part of any property under its
superintendence and may give leases or farms of the whole or any part of such
property or such terms as it thinks fit, and, may make remissions of rent or other
dues, and may generally pass such orders and do such acts not inconsistent
with the provisions of this or any other Act for the time being in force as it may
judge to be for the advantage of the ward or for the benefit of the property.
39. Establishments and distribution of charges.- The Court may order
such establishments to be incurred as it shall consider requisite for the care and
management of the persons and properties under its superintendence and
generally for all the purposes of the Act, and may order that such charges shall
be borne by and distributed amongst the said properties in such proportions as
it deems fit.
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CHAPTER-V
Ascertainment and Settlement of Debts
40. Notice calling upon claimants to notify claims.- (1) On, the
publication of a notification under Section 21, the Collector therein specified
may, at any time publish in the Gazette a notice in English and in the vernacular
calling upon all persons having pecuniary claims, whether immediately enforceable
or not against the ward or his property to notify the same in writing to the Collector
within six months from the date of such notification.
(2) The notice shall also be published at such places and in such other
manner as the Court may, by general or special order, direct and shall be sent by
registered post to every person who is known to the Collector as having a pecuniary
claim against the ward of his property and of whose address the Collector is
credibly informed.
(3) The State Government may at any st age of the proceedings under
Sections 41, 42 and 44 invest any persons either by name or in virtue of his office
with the powers of a Collector for any or all of the, purposes of these sections.
Explanation - A claim shall be deemed to be pecuniary for the purpose of
this section and Sections 42 and 45 notwithstanding that a suit for its enforcement
or a reference of such claim to arbitration is pending or that a decree or award
has been passed establishing the same.
41. Claimants to furnish full particulars and documents.- (1) Every
such claimant shall within the period prescribed by Section 41 notify to the
Collector in writing his claim with full particulars thereof :
Provided that any claim presented after the expiration of such period and
within a further period of six months may be admitted it the claimant satisfies the
Collector that he had sufficient cause for not notifying the claim at an earlier
date.
(2) Every document (including entries in books of account) in the possession
of or under the control of the claimant on which he founds his claim, shall be
produced before the Collector with the statement of claim or within such time
after the preferring of the claim as may be allowed by the Collector in that behalf:
Provided that if the claim relates to an amount secured by a decree or award, it
shall be sufficient for the claimant to produce before the Collector a certified copy
of the decree and certificate from the Court which passed or is executing the
same declaring the amount recoverable thereunder or a true copy of the award
and a statement of the sum recoverable thereunder, as the case may be; and if
the claim is pending adjudication in any Court or has been referred to arbitration,
it shall be sufficient for the claimant to produce a certified copy of the plaint or a
true copy of the reference to arbitration, as the case may be.
(3) It shall be lawful for the Collector to require the production by any
claimant of such of the documents in his possession or power relating to his
claim other than the documents, if any, produced under Sub-section (2) as the
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Collector may consider necessary.
(4) Unless the Collector shall otherwise direct every document produced
under this section shall be accompanied by a true copy thereof. The Collector
shall mark the original document for the purpose of identification and, after
examining and comparing the copy with it, shall retain the copy and return the
original to the claimant.
42. Pecuniary claim of Government, etc. not affected.-  Nothing
contained in Sections 41 and 42 shall apply to any pecuniary claim of Government
or any local authority, or to claims for maintenance or for wages or salaries due
to servants.
43. Claims admitted and disallowed.- The Collector shall, after making
such enquiry as he may deem fit, decide which claims notified or admitted under
Section 42 are to be allowed in whole or in part, and which are to be disallowed
and, on his decision being confirmed by the Court, shall give written notice of the
same to the claimants :
Provided that nothing herein contained shall be construed as precluding
any claimant from continuing or instituting proceeding in any Civil Court in respect
of any claim whether such claim be allowed or disallowed by the Court in whole
or in part.
44. Claims not notified cease to carry interest.- Every pecuniary claim
against the ward or his property which has not been duly notified to, or admitted
by the Collector under Section 42 shall notwithstanding any law, contract, decree
or award to the contrary, cease to carry interest from the expiration of the period
prescribed by Section 41, and shall not be paid until after the discharge or
satisfaction of the claims notified or admitted under Section 42.
45. Inadmissibility in evidence of documents not produced.- No
document in the possession or under the control of the claimant which should
have been but has not been produced in accordance with the requirements of
Section 42, shall be admissible in evidence against the ward or his representative
in any suit brought by or against claimant, or any person claiming under him
unless it be proved to the satisfaction of the Civil Court that it was not within his
power to produce such document before the Collector.
46. When mortgagee in possession may be dispossessed.- (1) When
any property of a ward is in the possession of a mortgagee, or any person claiming
under a mortgagee, the S tate Government may, on being satisfied that it is
expedient in the public interest that the estate should be preserved and that
such encumbrancer should deliver up possession of the mortgaged property,
make a declaration to that effect and direct the Court to take possession thereof;
the Court shall, thereupon by an order in writing, require such incumbrancer to
deliver up possession of the same to the manager at the end of the then current
revenue year.
(2) If such encumbrancer refuses or neglect s to obey such order , the
Collector may, without resorting to a Civil Court, enter upon the property, and
14
summarily evict therefrom the said encumbrancer and any other person obstructing
or resisting on his behalf.
(3) The dispossession of the encumbrancer under Sub-sections (1) and
(2) shall not deprive him of remedy for the recovery of arrear rents due to him at
the date of his dispossession, under any law for the time being in force.
(4) If in the instrument of mortgage under which the incumbrancer is in
possession of the property, no rate of interest is specified, the Collector shall, in
cases where the mortgage debt has been notified to or admitted by him, offer to
the encumbrancer the rate of interest which appears to him to be reasonable;
and pass an order fixing the rate accordingly. Copy of the order shall be served
upon the incumbrancer in the manner prescribed by the Code of Civil Procedure,
1908 (V of 1908) for service of summons upon a defendant. If the encumbrancer
be dissatisfied with the rate of interest so fixed, he may , within three months
from the date of service upon him of such order, institute a suit against the ward
in a District Court within whose jurisdiction the property mortgaged or any portion
thereof is situate, and the said Court shall, if the mortgage debt has been notified
or admitted as aforesaid, pass a declaratory decree fixing such rate of interest
as to it may seem reasonable. If no such suit be instituted within the said period,
the encumbrancer shall be deemed to have agreed to the rate fixed by the
Collector.
(5) If an encumbrancer is dispossessed under this section, the money
due to him under the instrument of mortgage at the date of such dispossession
together with subsequent interest on the unliquidated principal of the mortgage
debt at the rate stipulated in the said instrument, and in the absence of such
stipulation at the rate determined as hereinbefore provided, shall, subject to the
provisions of Section 45 and subject to the charges specified in Clauses I and II
in Section 35, excepting the liquidation of debts payable by the ward, and the
provisions with reference to the upkeep of the furniture, equipage, live-stock and
other movable property belonging to the ward, be recoverable, together with any
money which he may be legally entitled to add to the principal money on the
security of the property mortgaged and of the rents and profit; arising or accruing
therefrom subsequent to the date of such dispossession, in the same manner as
if he were a simple mortgagee under the said instrument of such property and of
such rents and profits.
(6) The Collector shall, as soon as conveniently may be, after the expiration
of the revenue year commencing with the date of such dispossession and of
every successive revenue year declare, subject to the approval of the Court, the
gross annual rents and profits realized from such property, the several heads of
expenditure and the balance and such declaration shall be conclusive evidence
of the statements therein contained. A copy of such declaration shall be furnished
to the dispossessed encumbrancer free of charge.
47. Provision regarding leases for insufficient consideration.- (1)
When any property of a ward is in the possession of any person claiming to hold
15
under a lease granted by the ward and dated within the three years immediately
preceding the commencement of the superintendence or of any person claiming
under such lessee, the Collector may enquire into the sufficiency of the
consideration for which the lease was granted ; and if such consideration appears
to him inadequate, he may, with the previous sanction of the Court, give notice in
writing that the lease shall determine at the end of the then current revenue year
unless the lessee or any one claiming under him pays or agrees to pay such
additional consideration as may be mentioned in such notice within a date therein
fixed. If within such date such person does not pay or enter into an agreement to
pay the additional consideration demanded, or such other consideration as the
Collector may be willing to accept the lease shall determine at the end of the
then current revenue year:
Provided that such person may, if dissatisfied with the said notice of the
Collector, institute a suit against the ward within three months from the date of
service of such notice in a District Court within whose jurisdiction the property
comprised in the lease or any portion thereof is situate for determining whether
the consideration for the lease was adequate, and if not whether the additional
consideration demanded by the Collector or what other amount is reasonable.
(2) If the said District Court be satisfied that the lease was granted, for
adequate consideration and it is not shown to be otherwise invalid, it shall pass
a decree establishing the validity of the lease.
(3) If the District Court holds the consideration for the lease to be inadequate,
it shall determine the amount of additional consideration to be paid by the lessee.
(4) If no such suit be instituted or if on the institution of such suit the
lessee does not within one month from the date of the decree therein pay or
enter into an agreement to pay the additional consideration, determined by the
District Court, the Collector may without resorting to a Civil Court enter upon the
property and summarily evict therefrom such person and any other person
obstructing or resisting on his behalf.
48. Execution of decrees to be transferred to Collector in certain
cases.- (1) In the case of any specified ward of the Court, the State Government
may declare, by notification that execution of decrees passed by Civil Courts,
which are capable of execution by sale of any immovable property of such ward,
or which in pursuance of a contract specifically affecting any such immovable
property order the sale of the same, whether such decrees be passed prior to
such notification or subsequent thereto, shall be transferred to the Collector of
the district in which such property or any portion thereof is situate and rescind
such notification.
Provided that when a portion only of a decree passed by a Civil Court is of
the description aforesaid, such portion alone shall be transmitted to the Collector
for execution.
(2) The State Government may also notwithstanding anything contained
in the Code of Civil Procedure, 1908 (V of 1908) prescribe rules for the transmission
16
of the decree from the Civil Court to the Collector, and for regulating the procedure
of the Collector in executing the same, and for retransmitting the decree from the
Collector to the Civil Court.
(3) Rules under this section may confer upon the Collector or any gazetted
subordinate of the Collector all or any of the powers which a Civil Court might
exercise in the execution of the decree if the execution thereof had not been
transferred to the Collector, including the powers of the Civil Court under Rules
72 and 92 of Order XXI of the First Schedule to the Code of Civil Procedure, 1908
(V of 1908) and may provide for orders passed by the Collector or any gazetted
subordinate of the Collector or orders passed on appeal with respect to such
orders, being subject to appeal to and revision by superior revenue authorities as
nearly as may be as the orders passed by the Civil Court, or orders passed on
appeal with respect to such orders, would be subject to appeal to and revision by
appellate or revisions Civil Courts under the Code of Civil Procedure, 1908 (V of
1908) or other law for the time being in force if the decree had not been transferred
to the Collector.
(4) A power conferred, by the rules upon the Collector, or any gazetted
subordinate of the Collector, or upon any appellate or revisional authority, shall
not be exercisable by the Civil Court which passed the transferred decree or by
any Civil Court in exercise of any appellate or revisional jurisdiction which it has
with respect to decrees or orders of the aforesaid Civil Court.
(5) In executing a decree transferred to the Collector under this section
the Collector shall be deemed to be acting judicially within the meaning of the
Judicial Officers Protection Act, 1850 (XVIII of 1850).
49. Collector to whom execution of decree has been transferred to
cease to discharge the functions of a Collector under the Act.- (1) When
the Collector to whom the execution of any decree has been transferred under
Section 49, is also the Collector who has to discharge the other functions of a
Collector under this Act in respect of the ward against whom such decree has to
be executed, the State Government shall appoint some other person by name or
by virtue of his office to exercise the functions of a Collector under this Act in
respect of such ward other than the execution of the decrees, transferred to him.
(2) The Revenue Commissioner may, in those areas where the Madras
Proprietary Estate Village Service Act, 1894 (Madras Act II of 1894) is in force
authorise the person so appointed to exercise all or any of the powers conferred
on a revenue officer-in-charge of a division by Sub-section (2) of Section 16 of
that Act.
50. Certain provisions of Civil Procedure Code to be applicable to
execution of decrees transferred to Collector.- The provisions of the Third
Schedule to the Code of Civil Procedure, 1908 (V of 1908) shall, subject to the
provisions of this Act and to such rules as may be prescribed by the S tate
Government under Section 49, be applicable as far as may be to the execution of
decrees transferred under Section 49.
17
CHAPTER-VI
Suits
51. Bar of certain suits and proceedings.- (1) No declaration made by
the State Government under Section 16 or 20 and no act done by the S tate
Government or by the Court in exercise of any discretionary power conferred by
this Act shall be called into question in any Civil Court.
(2) No suit or other legal proceeding shall lie against any officer of the
Government or any guardian, manager or servant appointed by and discharging
his duties under the Court of Wards for anything in good faith by him done or
ordered to be done in pursuance of this Act.
52. Notice of suits.- (1) No suit relating to the person or property of any
ward shall be instituted in any Civil Court until the expiration of two months after
notice in writing has been delivered to or left at the office of the Collector specified
in the notification under Section 21 or the Collector appointed under Section 50,
as the case may be.
(2) Such notice shall state the name and place of abode of the intending
plaintiff, the cause of action and the relief which he claims ; and the plaint shall
contain a statement that such notice has been so delivered or left :
Provided that notic

Excerpt shown. Open the full act in Lexace.

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