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

Citation: [1960] 2 S.C.R. 431; 1959 INSC 160

Court: Supreme Court of India

Bench: S.K. DAS , A.K. SARKAR, K. SUBBA RAO

Judgment date: 1959-12-14

Case summary

1959 INSC 160. Supreme Court of India judgment dated 1959-12-14. RANI DRIG RAJ KUER v. RAJA SRI AMAR KRISHNA NARAIN SINGH. Read the judgment and case...

Judgment text

- 8. 0. :R. SUPREME COURT REPORTS 431 \ RANI DRIG RAJ KUER v. RAJA SRI AMAR KRISHNA NARAIN SINGH (S. K. DAS, A. K. SARKAR and K. SUBBA RAO, JJ. ) Court of W ards-Estaies of appellant and respondent both in charge of Court of Wards-Statute providing for appointment . of representatives of such wards-Failure to appoint representatives-,. ' Settlement of appeal by Court of Wards and compromise decree thereon-Validity of-Whether provisions of statute mandatory- U. P. Court of Wards Act, z9z2, (U. P. 4 of z9z2), s. 56, Code of Civil Procedure, z908 (5 of z908), 0. XXXII. The respondent, proprietor of Ramnagar Estate, filed a suit against the appellant, proprietor of Ganeshpur Estate, for the recovery of certain properties. The appellant filed a cross-suit against the respondent. During the pendency of the suits the appellant was declared to be a person of unsound mind and the Court of Wards assumed superintendence of her properties undet the U. P.

Court of Wards Act, and placed them in charge of the Deputy Commissioner of Barabanki. Thereupon the cause titles oi the suits were amended and in place of the appellant's name the 'Deputy Commissioner, Barabanki I/C Court of Wards Ganeshpur Estate' was substituted. The Trial Court partly decreed the respondent's suit and dismissed the appelltmt's suit. Both parties preferred appeals to the High Court. While the appeals were pending the Court of Wards took over the Estate of the respondent also and placed it also in charge of the Deputy Commissioner, Barabanki. The c;ause· titles of the appeals were then amended and for the name of the respondent, the name 'Deputy Commissioner, Barabanki I/C Court of Wards Ramnagar Estate' was substituted. Thereafter, the Court of Wards passed a resolution settling the appeal on certain terms and under its instructions the lawyers for the parties presented petitions to the High Court for recording compromises in the appeals.

The High Court passed decrees in tei·ms of the compromises. Shortly afterwards the Court of Wards released the two estates. Later; the appellant recovered from her affliction and was declared to be of sound mind. She presented two applications to the High Court alleging that the compromise decrees were a nullity and praying for a proper disposal of the appeals. The High . Court rejected the applications. The appellant co. ntended that the compromise decrees were a nullity (i) as the Court of Wards hag not complied with the mandatory provisions of s. 56 of the Act, (ii) as there could not in law be a compromise unless there were two parties but in this case there was only one. party the Deputy Commissioner, Barabanki and (iii) as. the High Court failed to appoint a ·disinterested person as guardian of the appellai1f wh. o • ,, .. --:? ' •· . . ,:,_. ,:, .. ::' r959 ·December r4 • 1959 Rani Drig Raj KUer v. Raja Sri A.

may Krishna Narain Singh • 432 SUPREME COURT REPORTS [1960 (2)] was of unsound mind under 0. XXXII of the Code of Civil Procedure. Held, (per S. K. Das and A. K. Sarkar, JJ ), that the compromise decrees were not a nullity and were binding on the parties. Section 56 of the Act which provided that when in a suit or proceeding two or more wards had conflicting interests, " the Court of Wards shall appoint for each such ward a representa- tive" to conduct or defend the case on . behalf of the ward whom he represented was clearly direct and the failure of the Court of Wards to observe the provisions thereof did not render the compromise decrees a nullity. A directory provision did not give discretionary ·power to do or not to do the thing directed; it was intended to be obeyed but a failure to obey it did not render a thing duly done in disobedience of it a nullity . . When the appeals were compromised, the compromise betw.

een the parties to the appeals, namely, the appellant and the respondent. It was not a compromise which the Deputy Commissioner, Barabanki, . made with himself though he 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 aopellant in charge of the Court of Wards though it was. also in charge of the interests of the respondent. ! ;'er K. Subba Rao, J. -The compromise decrees were a nullity. The provisions of s. 56 of the Act were mandatory and a non-compliance therewith vitiated the proceedings.

The 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 oμe or the other of the views. The object of s. 56 was to prevent the anomaly of the same person representing two conflic•ing interests and to safeguard the interests of the wards placed under the supervision of the Court of Wards. No inconvenience would result from holding the provisions to be mandatory. The word "shall" in s. 56 could not be read as " may ". · J agan Nath v. ] aswant Singh, [r954] S. C. R.. 892, Queen v. Ingaf. l, (1876) 2 Q. B. D. r99, Caldow v. Pixwell, ( 1876) 2 C. P. D. 562, Hari Vishnu Kamath v. Syed Ahmad Ishaque, [1955] r S. C. R. rro4 and Braja Sunder Deb v. Rajendra Narayan Bhanj Deo, (r937) f.. R. 65 I. A. 57, referred to. CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 422 & 423 of 1958. · · • • .. • S. C. R.

SUPREME COURT REPORTS 433 Appeals from the judgment and decree dated November 22, 1957, of the Allahabad High Court (Lucknow Bench), Lucknow, in Civil Misc. Applications Nos. 54 and 56 of 1957. Niamatullah, S. N. Andley and J. B. Dadachanji for 0. N. Srivastava, for the appellant. H. N. Sanyal, Additional Solicitor-General of India, · Bishun Singh and 0. P. Lal, for the respondent. 1959. December 14. The Judgment ofS. K. Das and A. K. Sarkar, JJ. was delivered by Sarkar, J. Subba Rao, J. delivered a separate judgment. · • SARKAR J. -Raja Udit Narain Singh was the pro- prietor of Ramnagar estate, a big taluqdari in district Barabanki in Uttar Pradesh, formerly known as the United Provinces of Agra and Oudh and for short U. P. , an abbreviation still in use. Ramnagar estate was governed by the Oudh Estates Act (I of 1869), and in the absence of any disposition by the holder for the time being, it appears to ha'1"e devolved according to the rule of primogenitut,e.

Raja Udit Narain died in 1927 leaving two sons of whom the older was Raja Harnam and the younger Kanwar Sarnam. :{(anwar Sarnam died in 1928 leav- ing 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 absol- utely and the rest of it, as set out in a schedule to the will, to him for life and after him to Kanwar Sarnam for life and thereafter or failing the latter:, to the respondent absolutely. The will declared that village Bichelka had been given to her for life as "runumal" 1959 Rani Drig Raj Kuer v.

Raja Sri Amar Krishna_ Narain Singh Sarkar]. I959 Rani ·nrig ·Raj Kuer v. Raja Sri Amar Krishna Narain Singh Sarkar]. 434 SUPREME COURT REPORTS [1960 (2)) or wedding present and that she would have a main- tenance of Rs. 500, per month out of the estate. The schedule to the will did not mention five of the villages of l'tamnagar estate with regard to which Raja Udit Narain died intestate and these thereupon devolved on Raja Harnam under the rule of primogeniture that applied to the estate. After Raja Udit Narain's death, Raja Harnam went into possession of the estate and executed a will leaving all the properties over which he had a power of disposition, including the seven villages bequeathed to him absolutely by Raja Udit Narain and the five villages not disposed of by his will, to her in absolute right. Thereafter, Raja Harnam executed a deed of gift in her favour giving her most of the immovable properties covered by his will and several house properties in Lucknow.

On these allegations the appellant made a claim to all the properties said to have been given to her by the aforesaid wills and the gift of Raja Harnam. Parbati Kuer, on behalf of her son, the respondent, challenged the factum and validity of the wills and the gift said to have been made by Haja Harnam and resisted the appellant's claim. And so the disputes between the parties arose, The Deputy Commissioner of Barabanki intervened to restore peace and brought about a family arrange- ment, into which the parties entered on January 22, 1935, settling the disputes on the terms therein contained. Under this family arrangement certain properties came to the appellant but it is not necessary for the purposes of these appeals to refer to them in detail. The peace created by the family arrangement did not last long. The respondent after attaining majority on September 12, 1940, repudiated the family arrange- ment on grounds to which it is unnecessary to refer.

On September 6, 1943, he filed a suit against the _ appellant to set aside the family arrangement and recover from her the properties of the estate in her possessio! l· The defence of the appellant to the suit was that the family arrangement was binding on the respondent. However, to cover the eventuality of the • S. C. R. SUPREME COURT REPORTS 435- family arrangement being found to be void or void- able, the appellant herself filed a suit against the respondent claiming title to various properties of the estate under the will of Raja Udit Narain and the will and gift of Raja Harnam. The respondent contested this suit. With the particulars of the claims and defences in the suits or their soundness we are not concerned in these appeals, and a reference to them will not be necessary. While these two suits were pending, the appellant was on November 12, 1945, declared by the District Judge of Lucknow under the provisions of the Lunacy Act, 1912, to be a person of unsound mind.

There- upon, 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 Commis- sioner, Barabanki l/C Court of Wards, Ganeshpur estate " was substituted, such amendment being required by the provisions of s. 55 of the Act the terms of which we shall presently set out .. The letters " l/C" in the substituted name were an abbreviation of the words "'in charge of.

" Thereafter, the respondent's suit was dismissed by a decree dated June 3, 1947, except as to his claim to two villages, it being found that in them Raja Harnam had only a life estate and to them the appellant had . no c1aim after his death, and that these had been given to her by the family arrangement by mistake. As the family arrangement was substantially upheld by the decree in the respondent's suit, the appellant's suit became unnecessary for it had been founded on the basis that the family arrangement was void or could be avoided. It had therefore to be dismissed. Two appeals . were filed from the decisions in these two suitr:; in the Hi~h Court ~t Luclmow 1 one by the De:puty I959 Rani Drig Raj. Kuer v. Raja Sri Amar Krishna Natain Singh·. Sarkar]. I959 Rani Drig Raj Kuer v. Raja Sri Amar Krishna Narain Singh Sarkar J.

436 SUPREME COURT REPORTS [1960(2}] Commissioner of Barabanki representing the estate of the appellant against the decree dismissing the appel- lant's suit, being F. C. A. No. 99 of 1947, and the other by the respondent, being F. C. A. No. 2 of 1948, against the decree dismissing his suit. F. C. A. No. 99 appears to have be. en filed merely as a matter of safety, to be proceeded with only in case the respondent's appeal, F. C. A. No. 2 of 1948, succeeded. While the appeals were pending, the respondent made an application under the Act to have his estate placed under the charge of the Court of Wards. That application was accepted and the superintendence of his estate was taken over by the Court of Wards on February 8, 1950. The respondent's estate was also placed by the Court of Wards in the charge of the Deputy Commissioner, Barabanki, as the estate was within his jurisdiction. The Court of Wards retained for it its old name of Ramnagar estate.

The cause titles of the appeals bad again to be amended in view of s. 55 of the Act and for the name of the respondent, the name "Deputy Commissioner Barabanki I/C Court of Wards Ramnagar estate" was substituted. Th_e cause titles of the appeals then became, Deputy Commissioner, Barabanki I/C Court of Wards Ganeshpur estate Appellant versus Deputy Commissioner, Barabanki l/C Court of Wards Ramnagar estate . . . Respondent AND Deputy Commissioner, Barabanki l/C Court of Wards Ramnagar estate Appellant versus Deputy Comdiissioner, Barabanki I/C Court of Wards Ganeshpur estate ... Respondent. The position thus was that the estates of both the appellant and the respondent came under the superin- tendence of the same Court of Wards and were placed in the charge of the same Deputy Commissioner in whose name each party sued and was sued in the appeals. This situation was the occasion for th\l ' - -, . , S. C. R.

SUPREME COURT REPORTS 437 proceedings to be referred to presently, from which these appeals arise. Before coming to these proceed- ings, 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 impend- ing legislation for abolition of zemindaries. There- after, under the instructions of the Court of Wards, the lawyers appearing for the parties in the appeals presented to the High Court on April 28, 1952, petitions for recording compromises in the appeals and for passing decrees in accordance therewith. On May 2, 1952, the High Court passed orders directing the compromises to be recorded and decrees to be passed in the appeals in terms thereof. The appeals were thus disposed of arid the proceedings therein terminat- ed.

When the appeals were so compromised, the paperbooks in respect of them were in the course of preparation. It is ~ot necessary to encumber this judgment by setting out the terms of the compromise. It is how- ever 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 pre- sented in Court by Sri Sita Ram,-Advocate for the appellant's estate and Sri Bishun Singh, Advocate for the respondent's estate. Some more events happened before the proceedings out of which these appeals arise were started. Shortly after the compromise decrees had been passed, an Act 56 I959 Rani Drig Raj Kuer v. Raja Sri Amar Krishna Narain Singh Sarkar]. z959 Rani Drig Raj Kuer v. Raja Sri . Amar Krishna Narain Singh Sarkatt ]. 438 SUPREME COURT REPORTS [1960(2)) abolishing zemindaries came into force in U. P. and the zemindary estates of the parties vested in the Government of U. P. Thereupon the Court of Wards ceased to function. Iu ·anticipation of this situation the estates of the parties were released by the Court of Wards.

In view, however, of the appellant's mental incapacity, an order was passed by the District Judge of Lucknow, on April 27, 1953, in the lunacy proceed- ings, placing her estate in the charge of the Deputy Commissioner, Barabanki and one Mr. M .. L. Sarin and appointing them as the guardians of her person and property. A few years later, the appellant recovered from her affiiction and an order was passed by the District Judge, Lucknow on October 6, 1956, declaring her to be of sound mind. Her aforesaid guardians were thereupon discharged and she was put in posses- • sion of her properties. After the appellant had regained her mental·com- petence, 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 applic- ations 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 paper- books of the said appeals be resumed under Chapter XIII of the Rules of the High Court from the stage at which it was interrupted by the compromise decrees, as those decrees were a nullity and did not terminate the appeals which must therefore be deemed to be pending. These applications were heard together by the High Court and dismissed by its judgment and orders dated November 22, 1957. It is against this judgment and the orders that the present appeals have been brought. These appeals were consolidated by an order made by the High Court and they have been heard together in this Court. It is not the appellant's case that the compromise was brought about by fraud or was otherwise vitiated on similar grounds and is therefore liable to be set aside. No avoidance of the compromise is sought. In fact, the appellant had initially alleged in her petitions • • • ' - - - \ S. C. R.

SUPREME COURT REPORTS 439 that the compromise had been brought about by fraud and collusion. She however amended the petitions by deleting the paragraphs containing these allegations and chose to proceed on the purely legal basis that the compromise was a nullity. It is for this reason that we have not referred to the terms of the compr·omise. No question arises in those appeals as to their fairness or as to whether they should be avoided on any equitable ground. If the compromise decrees were a nullity as the appellant contends, then she would no doubt be entitl- ed to proceed on the basis as if they had never been made and in that view her applications would be competent and should succeed. The question is whether the compromise decrees were a nullity. The appellant first says that the compromise decrees were a nullity as the terms of s. 56 of the Act which are mandatory, had not been complied with.

That section reads thus : Section 56: When in any suit or proceeding two or more wards being parties have conflicting in- terests, the Court of Wards shall appoint for each such ward a representative and the said represen- tative shall thereupon conduct or defend the case on behalf of the ward whom he represents, subject to the general control of the Court of Wards. It is true, that no representative had been appointed under this section for either party for the purposes of the two appeals. It is said that this omission . to appoint representatives made the compromise decrees a nullity as the terms of the section are imperative. The question then is, is s. 56 imperative? In our view, it is not: It, no doubt, says that "the Court of Wards shall appoint .... a representative. " But it is well-known that the use of the word " shall" is not conclusive of the question whether a provision is mandatory: see Hari Vishnu Kamath v. Syed Ahmad lshaq_ue (! ).

The intention of the legislature has to he gathered from the whole statute. Several grounds are suggested why s. 56 should be held to be imperative. First, it is said that otherwise, (r) (r95~J 1 ·s. c,R. uo4. r959 Rani Drig Raj Kuer v. Raja Sri Amar Krishna Narain Singh Sarkar]. I959 Rani Drig Raj Kue1 v. Raja Sri Amar Krishna Narain Singh Sarkar]. 440 SUPREME COURT REPORTS [1960(2)] in view of s. 55, it would be otiose. Section 55 is in these terms : Section 55: No ward shall sue or be sued nor shall any proceedings be taken in the civil court otherwise than by and in the name of the Collector in charge of his property or such other person as the Court of Wards may appoint in this behalf. It is said that the concluding words of s. 55 give the Court of Wards a discretionary power to appoint a representative and therefore ifs. 56 was only directory, then it would also give the same discretionary power to appoint a representative and thus become otiose.

The contention seems to us to be ill founded. In order that one section may be rendered otiose by a certain interpretation of another, that interpretation must make the two sections deal with the same subject- matter; the two must then be serving the same pur- pose. 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 apprec- iate how s. 56 becomes otiose by being read as a directory provision while it would not be so if read as a mandatory provision. Surely, the subject-matter of a statutory provision is not changed whether it is read as directory or as mandatory. If it was not otiose as a mandatory provision, it would no more be so as a directory provision. Another fallacy in this argument is that it assumes that by reading s.

56 its a directory provision a discretion is conferred on the Court of Wards to appoint or not to appoint representatives for the wards, as it pleases. A provision giving a discretionary power leaves the donee of the power to use or not to use it at his discretion. A directory provision however gives no discretionary power free to do or not to do the thing directed. A directory provi- sion is intended to be obeyed but a failure to obey it does not render a thing duly done in disobedience of it, a nullity. Therefore, it seems to us to be wrong to say that by reading s. 56 as merely directory any discretion is conferred on the Court of Wards. ' .. ,. - S. C. R. SUPREME COURT REPORTS 441 It also seems clear to us that ss. 55 and 56 deal with entirely different matters. Section 55 deals only with the name in which a ward may sue or be sued. Section 56 deals with appointment of representatives for two or more wards who are parties to.

a litigation and have conflicting interests, to defend or conduct the case on behalf of the wards, ands. 56 would apply whether the wards were sued in the names of the Collectors in charge of their properties or in the names of persons appointed for the purpose by the Court of Wards. There is nothing to show that the represen- tatives appointed under s. 56 are to be named in the record of the case as representing the wards. The section does not say so. Section 56 contemplates a stage where two or more wards are already parties to a litigation. It therefore contemplates the wards suing or being sued in the names of the Collectors in charge of their properties or of other persons appoint- ed under s. 55. Notwithstanding this, s. 56 does not provide that the representatives appointed under it shall replace the Collector or the person appointed under s, 55 on the record of the litigation. Therefore it seems to us clear that if s. 56 is read as a director~ provision, s.

55 would not become otiose. Next it is said that ss. 57 and 58 of the Act also deal with the appoint~ent by the Court of Wards of representatives for the wards in certain proceedings between them but in these sections the words used are respectively "shall be lawful for the Court of Wards to appoint" and "may appoint'', while the word used in s. 56 is "shall" and that this distinction clearly indic- ate~ that the intention of the legislature. is to make s. 56 imperative. · This argument also does not appear to us to be sound. We are not satisfied that because a statute uses in some provisions the word "shall" and in others the words "shall be lawful" or "may'', it neoessarily indicates thereby that the provisions containing the word "shall" are to be understood as mandatory provisions. We think that each provision has to be considered by itself, and the context in which the word "shall" occurs in it, the object of the provision .. r959 Rani D1ig Raj ·Kue; v.

Raja S1i Ama1 K1ishna Na1ain Singh Sa1kar ]. I959 Rani Drig Raj J resentative m:1der 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 r959 Rani Drig Raj Kuer v. Raja Sri Amar Krishna Narain Singh Subba Rao]. x959 RiSni Drig Raj J(uer v. Raja Sri A. mar Krishna Narain Singh Subba Rao]. • ' 454 SUPREME COURT REPORTS [1960 (2)] 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 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 com- promise 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 co_ntrol 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 autho- rity empowered to do so has to effect the compromise, l? ut the same in court through the representv. tives v. nd ' ( ' - .. - S. O. R. SUPREME COURT REPORTS 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 non-compliance thereof would not affect the validity of the compromise decree, if in fact the compromise was effected bona fide by the compe- tent authority. The word "shall" in its ordinary import is "obligatory", but there are many decisions wherein the courts under different situations conskued 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 inter- pretation 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 " ins.

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 per- formance 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. I959 -Rani Drig Raj K11er v. Raja Sri Amar Krishna Narain Singh Subba Rao]. z959 Rani Drig Raj Kuer v. Raja Sri A mar Krishna Narain Singh Subba Rao]. 456 SUPREME COURT REPORTS [1960(2)] list comes into force on the 6th April. But there are other sections w hereunder provision is made for preparing the valuation lists where there has been omission to make them according to the requirements of the Act. The obst,rvance 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 provi. sions in such a manner, Lush, J. , observed:. "We ought to look at the object which the legis- lature 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 betwPen the possible inconvenience that would be caused in accepting the one or other of the views. The decision in Caldow v. Pixwell (') 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 imper- ative; and that a direction to inspect and report made by a bishop more than three months after the av. oidance 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 (t) (1876) • . c. P. D. 562. ' - • - '· .. · S. C. R.

SUPREME COURT REPORTS 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 nullific- ation 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 ~hole scope of the statute to be construed. " 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 \Yards. 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 w_ould be represent- ed 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) z s. c. R. uo4, n26. • I959· Rani Drig Raj Kuev v. Raja Sri A mar J{ rishna Narain Singh Subbf! Rao ] • • 1959 Rani Drig Raj J(iter v. Raja Sri A tnar Krishna Narain Singh Subba Rao]. 458 SUPREME COURT REPORTS [1960 (2)) 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 Addi- tional 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 Dea(') 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. ' , ' ' .. S. C. R. SUPREME COURT REPORTS 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 contend- ed 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 nega- tived 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 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 represent- atives were appointed. There is no analogy between that decision and the present case. For the aforesaid reasons I hold that the com- promise 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 accord- ance 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. I959 Rani Drig Raj Ku er v. Raja Sri A mar Krishna Narain Singh Subba Rao J.

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