THE COURT OF WARDS
672. Object of Court of Wards. The duty of the State to make provision for the care of the persons and property of those who by reason of age, sex, mental, incapacity or other causes are unfit to manage their own affairs is generally recognized. The Guardians and wards Act, VIII of 1890, embodies the general law on the subject, and under this a competent court is empowered, where no other suitable guardian can be found, to appoint the Deputy Commissioner to that office, But where public interest are involved., as in the case of a large landholder., or where the family is one of political or social importance public policy necessitates a more specialized machinery , which is provided by the Court of Wards Act II of 1903. Action under this Act is regulated party by statutory rules(Punjab Land Administration Acts, Volume II) and partly by executive order issued in Financial Commissions Standing orders No. 33 . In the general interest of the administration of the province, it is desirable that large landholding families should receive assistance from Government , where that assistance can suitably be rendered. In cases where the official machinery is not suited to mange the particular business, such as an industry or trade , it will rarely be to the advantage of the minor to be brought under the court of words. Such cases must be left to the Guardians and wards Act.
673 In case of Vicious or spendthrift landholders, interference confined to families of political or social importance. The considerations which lead the State to interfere in the case of landholders of vicious or spend thrift habits are those of public interst. The law does not contemplate the putting of any restraint on a man’s power of dissipating his property by vicious courses or the extravagant pursuit of pleasure unless he belongs to a family whose poetical or social importance it is a matter of public interest to preserve . IN this respect it does not go as far as the French law, which permits the relations of any prodigal spend thrift to apply of the appointment of a judicial adviser, without whose “assistance,” he is powerless to borrow money to sell or mortgage his immovable property or to bring a suit in court. (The power which reversions posses under the customary law of the Punjab to sue for the cancellation of the transfers of land made with out necessary is a restraint of the same kind(see paragraphs 45 and 8 of this Manual)
Even in the case of great families it must be remembered that it is against the declared policy of Government to extricate them from debt by means of loans of public money. IN such cases Deputy Commissioners must not formally discuss with the persons concerned applications for the intervention of the court of wards, or initiate proceedings, without first obtaining the sanction of the Commissioner. And if ultimate resort to Government loans seems probable reference should be made to Government for a decision of the question whether the political or other considerations are strong enough to warrant an exception being made to its general rule or policy.
674. Imperfection of law regarding court of wards contained in section 34-38 of Act IV of 1872 and origin of Punjab Act, II of 1903. The old law concerning the Court of Wards contained in the Punjab Laws Act of 1872(As amended by Act XII of 1878) was unsatisfactory and defective, but it was not until after the prolonged examination of the measure required to rescue the rural population from debt that Bills were prepared to deal with some aspects of this problem. The Alienation of Land Act of 1900 (See paragraphs 24 et seq. Of this manual) was designed to meet the case of the mass of owners and it was supplemented in 1903 by the Court of Wards Act, to meet the case of families of social or political importance. The remainder of this chapter will be devoted to a short account of the present law followed by a few remarks on some particular questions which arise in connection with the care of wards an the management of their property.
676. Financial Commissioner Court wards for Punjab. By Act No. II of 1903, the Financial Commissioner is declared to be the Court of wards for the whole province. But he can exercise all or any of his powers through Commissioners or Deputy Commissioners to whom also they can be delegated by rules under the Act, or by general of special orders.(Section 4. For powers delegated to Deputy Commissioner and Commissioners [see the rules under section 4(3) in parts I and II of the rules under the Court of Wards Act in Punjab Land Administration Acts. Volume II.]
677. Only landholders can be made wards. To be made a wards a person must be landholder i.e, he must possess an interest in land as proprietor , assignee of the Government revenue, lessee of land, otherwise.(Section 3(b) of Act. No. II of 1903.)
678. Classes of landholders who may be made wards by order of Financial Commissioner. The court may of its own authority declare the following classes of landholders to be its wards :-
(a) minors that is to say persons below the age of eighteen.(Section 3(c) of Act II of 1903 read with section 3 of the Indian Majority Act, IX of 1875) A person who has been made a ward while still below that age does not reach his majority till he is twenty one.( Section 3 of Act IX of 1875, as amended by Section 52 of Act VIII of 1890) The Deputy Commissioner reports the cases of all minors who in his opinion ought to be made wards , and likewise case in which he himself has been appointed guardian of a minor under the provision of section 18 of he Guardian and Wards Act, VIII of 1890(Section 7(2)) The object of the report in the latter case is to enable the Financial Commissioner to decide whether the estate should not be brought under the Court of Wards;
(b) Persons adjudged by a court acting under section 2 of Act XXXV of 1858 to be of unsound mind and incapable of managing their affairs . (Section 6) The deputy Commissioner may apply to the District Judge to institute the necessary enquiry.( Section II(4) , see also section 3 of Act XXXV of 1858)
679. Classes of landholders who may be made wards by order of local Government. The local Government may order the Court of Wards to take charge of the property of the following classes of landholders if it considers them incapable of managing their own affairs :-
(b) Persons suffering from any physical or mental defect or infirmity;
(c) Persons who themselves apply to made wards;
(d) Persons who have be convicted of any non-bilabial offence , and are of vicious character;
(e) Persons whose habits of wasteful extravagance are likely to dissipate their property. (Section 5(2)(d))
The court may at its discretion take charge of their persons also. In the case of the third class action can only be taken , if it is considered “expedient in the Public Interest ;” in the case of the last two classes it is necessary that the landholder shall belong to a “a family of political or social importance” and that the local Government shall be satisfied that it is desirable on grounds of public policy or general interest” to interfere. (Proviso to section (2))
680. Inquiry by Deputy Commissioner. A proposal to take anyone under the superintendence of the court of wards usually originates with the Deputy Commissioner of the district in which the whole or the bulk of the property concerned is situated ; but cases occur where the landholder applies direct to the Governor or the Member in charge. In such cases the application or proposal has to be sent to the Deputy Commissioner who acts as if it were his own . The 3rd chapter of the Act gives him the necessary powers for making an inquiry and for the protection of the person and property of the proposed ward until sanction is received.
681. Release from wardship. A minor or an insane person may be released from wardship by the court at any time, When it is proposed to release the person or a minor, the head of the educational institution at which he is studying should be consulted as to this future. The concurrence of the District judge is, however, required in any case in which the Deputy Commissioner was appointed guardian of the minor before he became as Ward of Court. (Section 44)On releasing a ward who is still a minor the court may give him a guardian who will have the same rights and duties and he subject to the same disabilities as a guardian appointed by the District Judge under Act VIII of 1890.(Section 47)
The property of a landholder who has been made a ward under the orders of the local Government cannot be released without its order; but the court may relinquish charge of his persons at its pleasure. (Section 44)
682. Publication of orders. The orders by which the Court of Wards assumes and relinquishes charge of the person or property of a landholder are published in the Government Gazette.( Section 9 and 50)
683. Provision to meet case of joint owners. When the landholder declared to be a ward is joint owner of property with other the court may take charge of the whole property.( Section 8) But as will be shown here after , its power of de align with such property is subject to restrictions. Again if a person who has ceased to be subject to its jurisdiction owns property jointly with another person who is still in ward, the court may retain the whole under its care. ( Section 46) This is very useful provision. It obviates the difficulty which arose under the old law, when several brothers were wards and one of them was released from tutelage on attaining his majority . When the court manages property not belonging to a ward it is bound to make over the surplus income to its owner.( Section 8 and 46)
684. Wardship may extend only to property. As already indicated the superintendence of the court may extend only to the property of the ward, or to both his property and his person.(section 6 and 7) .
685. Disabilities of ward. A ward cannot purchase on credit, borrow money, or transfer his property by lease, mortgage ,sale or gift. (Section 15(a)) He cannot make a will adopt an heir, or give permission to adopt.( Section 15(b)) He can only use under the authority of the court(Section 20(1)) and he cannot be used without the court being made a defendant, (Section 20(2)) and without two months notice having previously been given to the Deputy Commissioner.(Section 19)
686. Disabilities extending beyond release. A ward’s disabilities do not in all cases come wholly to an end on his release . A landholder who was made a ward at his own request or as a consequence of his extravagant habits cannot, after his release from the superintendence of the court, make any transfer of this property for a term extending beyond his own like. (Section 16(1)).
687. Powers of court as regards ward’s property. All property which the ward possesses in the Punjab at the date of the order by which the court assumes charge, and all property in the Punjab which the ward may subsequently acquire vests in the court , which however , has discretion as to taking he superintendence of any property fo the latter class not received by inheritance.( Section 13) The Act only extends to property in the Punjab ; property owned by a ward is an other province is not affected by its province, the authorities in that province must be moved to take the necessary action under the local Act. The court has for the item being all the powers of a landowner. It can even sell the whole of the property if it thinks that to do so would be the ward’s advantage.( Section 17(1)) Of course permanent alienation of any part of the ward’s landed property is usually to be avoided. But the sale of outlying or isolated portions of an estate as part of a scheme for the liquidations of debt may be sound policy. The court cannot sell or mortgage the share of a joint proprietor who is not himself a ward, or grant a lease of it for more than twenty years.( Section 17(2)) In this connection it must be borne in mind that jagirs notified under the Punjab Jagirs Act, V of 1941 , cannot be attached and are, therefore, of no value as legal security.
688. Management may continue after death of release of ward. The cessation of legal disability , or even the death or a ward, does not in every case free his property from management. If still encumbered with debt it may, with the sanction of the local Government, be kept under the charge of the Court till all the debts have been discharged.(Section 45)
689. Powers of court over ward’s person. When the court has taken charge of the person of a ward it can fix his place of residence and in the case of minor male ward, has complete control of his education. (Section 24) This control has been delegated to Deputy Commissioners .(See paragraph 696 of this Manual)
690. Ascertainment of debts. To free an estate from a load of debt is too often one of the chief tasks of the court of Wards. The first step is to ascertain exactly what the liabilities are. The 6th Chapter of the Act provided a means of doing this promptly and a notice calling on all creditors to present within six months their claims with the documents on which they rely for their establishment.(Sections 26 and 27)Subject to the provisions of section 7and 13 of the Indian Limitation Act, XV of 1877, claims not filed in time without reasonable excuse of the sufficiency of which the Deputy Commissioner is judge are ipsofacto extinguished.(Section 29) Suits and executions against the wards , estate pending at the time are stayed until the plantiff or the decree holders files a certificate that the claim has been duly notified.(Section 3(2) . Compare section 31(3) barring fresh proceeding in execution.)
691. Deputy Commissioner must determine amount due and may rank the debts. It is the duty of the Deputy Commissioner to examine in to the truth of each claim, and to determine the amount due. (Section 28) He cannot of course disallow any sum already decreed and still unpaid. (Section 3(1)) He has further to decide in cases in which immediate payment is impossible the rate of interest, if any , to be allowed in future, (Section 28) and he may, if the thinks fit rank the debts in the order in which they are to be paid, and fix a date for the discharge of each.(Section 32(1)) . Debtors will often accept a composition favourable to the ward if, by doing so, they can procure a prompt settlement of accounts.
692. Remedies open to creditor. The Deputy Commissioner’s decisions are not subject to appeal , but they may be revised by the Court of Ward. (Section 33) No civil suit lies to set aside the order of Deputy Commissioner ranking debts or fixing dates for their discharge. But, if he has wholly rejected a claim or reduced its amount , the aggrieved party may bring a civil action, in which the court of wards will be defendant to impeach the correctness of the decision.( Section 32) In such a suit no document which the palintiff failed to produce before the Deputy Commissioner, through it was in his power to do some can be received in evidence.( Section 30)
693. Appointment of tutors, guardian and mangers. The 7th chapter of the Act provided for the appointment of tutors , guardians and managers , and explains their duties and obligation Subject to the control of the court, a guardian has charge of the person of a ward, and a manager of his property.(Section 35 and 38) It is often well to consult the friends or relations of a ward as to the choice of manager since a fit private person may sometimes be available. In the case of large estates, however, where a specially competent manager is required, a Government servant should generally be selected. In all case , the interest to be considered are those of the ward and not those of any friend or relation or other candidate for the post. There is no reason why in suitable cases the two offices of guardian and manager should not be united in a single person. A guardian can only be appointed for the care of a ward. Who is a minor, or an unmarried female, or insane, or suffering from some physical or mental infirmity.(Section 35) The next heir of a ward or a person immediately interested in outliving him cannot be his guardian. (Section 36) If no guardians or manager is appointed by the court, their powers are exercised by the Deputy Commissioner.
694. Preliminary report and scheme of management. When a Deputy Commissioner has made up his mind that an estate should be brought under the court of Wards, he submits his proposals in a preliminary report, which is followed as soon as possible by a detailed scheme of management . Orders on the subject will be found in paragraphs 4 and 5 of the Financial Commisisoner Standing Order No. 33.
695. Court of Wards rate. (1) A rate is levied on the income of estates managed by the Court of Wards under the authority of section 3 of the Government Management of Private Estates Acct (X of 1892) . The income is intended to cover the cost of all ordinary Government establishments in so far as these have to devote part of their time to Court of Ward’s business. This is of course does not include any staff recruited solidly for the management of any estates or group of estate. Such a staff is paid out of the income of the estate or estate which employ it. The case also covers the share of any contingent expenditure of Government offices, which would otherwise be debatable to the Court of Wards. For the present the rate has been fixed as follows :-
(a) on gross income up to Rs. 5000 per annum 5 percent.
(b) On excess upto Rs. 10000 per annum, 4 percent
(c) On further excess upto Rs. 20000 per annum, 3 percent.
(d) On further excess above Rs. 20000 per annum, 2 percent.
(2) Gross income is defined in section 2(2) of the government Management of private Estates Act, 1892, as follows:-
“Gross income includes all receipts of every kind in produce or cash , except money borrowed , recoveries of principal and the proceeds of sale of immovable property or movable property classed as capitals.
696. Education of wards. The education of wards for good family has always been difficult problem. There can be no question in these days as to the kind of knowledge to be arity with Western ideas and modes of thought , which is becoming the common property of all educated Indians. But a young Indian leaving conservative home surroundings to receive such an education is very much in the position of a young Englishman in the sixteenth century faring to Rome of Padaua to reap the fruits of the Renaissance. We know what the result was in the case of our own countrymen , and we need not wonder if similar disappointments often occur in modern India. Yet the risks of home education are greater and though a body’s relatives commonly urge its advantages, there can in most cases be no doubt that their wishes should be overruled. At best an Eastern home for a fatherless boy of good position and large means is not a school for the development of the mainly virtues; at worst it means an entourage of women trying to keep him in the zanana and of flatterers outside. The general rule that has been laid down therefore is that as far as possible every ward of an age for other than primary education shall , if he is the son or near relative of a hereditary darbari be sent Queen Mary’s College at Lahore as a preliminary to sending him to the Chiefs” college. If the estate is too poor to bear the expense or if there are nay other reasons against its adoption, the circumstances should be reported to the Financial Commissioner when the ward has reached the age of 5 years the lowest age at which boys are received at Queen Mary’s College. The annual expenses of education at the Chiefs College run to some Rs. 2400 but it is often possible to arrange that the boy shall hold a scholarship. The fees paid by wards of Court have now been as similated to those paid by ordinary pupils at the College. When education at the Chiefs” College is not practicable and a private tutor is not employed a ward should be sent to one of the Government Schools.(See also paragraph 16 of Standing order No. 33) For the reason stated above private tuition is not usually to be recommended ; but the week health of a ward or other special circumstances some times leave no choice in the matter. Although the court of wards is not empowered to issued orders compusorily directing the education of female wards the Deputy Commissioner should where possible satisfy himself that suitable arrangements are made. Where funds admit and relations agree Queen Mary’s College provide a very suitable education.( See also paragraph 18 of Financial Commissioner’s Standing Order No. 33)
697. Investments in improvements. As the accumulation of large cash balances or of readily realizable securities merely provides a temptation to a ward on release from control, it is desirable that surplus funds should be employed on the improvement of the estate and on bringing all buildings etc, into a through state of repair. The advantages to be derived from digging wells tanks, embankments or drains should be carefully considered and all measures which the agricultural department can recommend for the improvement of the soil, or for enhancing the security of the crops and the prosperity of the tenancy should be carried out as funds permit. Attempts should also made to effect improvement of the cattle under the advice of the veterinary department. It is not intended that estates under the Court of Wards should be run on model lines; but whatever an intelligent and enterprising landowner would be ready to spend money on in his own estate, may be object of expenditure by Court. Where Government has provided a body of experts to advice on agricultural matters, there need be little hesitation in taking full advantage of their advice to effect all promising improvements in the estate. The Government of India have especially advised the liberal supply of advances to cultivators upon the ward’s estate in the shape of either money, seed, or cattle, on the security of long leases and conditional on the payment of enhancement rent. (Government of India, Revenue and Agricultural Department , resolution No. 2771 –79 dated 31st December 1891. Also see paragraph 27 standing Order No. 33) In fact the expenditure should be on objects on which a wealthy and thoroughly intelligent landowner living in the neighborhood would be ready to spend money in the case of his own estate.
698. In purchase of mortgage of lands. Following the improvement of a ward’s own estate come investments in the purchase or taking on mortgage or lands, which should , as a rule be situated in reasonable proximity to the main estate. It will often be found that the difficulties involved in the management of property situated at a distance from the managing center e.g., in one of the canal colonies. Are such as to render this form of investment inadvisable; but where these difficulties can be obviated, and auctions are advertised , inadvisable; but where these difficulties can be obviated, and auctions are advertised, proposals may be submitted for the purchase at auction of Government lands in the colonies. Where the lands to be acquired are not the property of Government; it is essential to see that the vendor’s or mortgagor’s title is unimpeachable.
It is to be observed that rule (II) under section 4(3) of the Act, part I( see page 93 of Volume II ; Punjab Land Administration Acts ) Gives the Deputy Commissioner power to execute and register instruments on behalf of the Court of Wards; but before this power is exercised , care should be taken to see that the sale , mortgage or lease in question has received the sanction of competent authority . Under rule (2) the Deputy Commissioner may himself fix the form of lease to be given in certain cases. In other cases the form of instrument must be approved either by the Financial Commissioner or by the Commissioner. (Rule (3 part II of the Rules under section 4(3) of the Act(see page 94 of Volume II, Punjab Land Administration Acts).It is necessary to lay particular stress on the fact that on no account should loans be advance in the interest of the borrower but solely, as laid down in section 17(1) of the Act for the advantage of the ward. Particular instructions in this respect are given paragraph 31 of Standing Order No. 33.
699. In purchase of government paper. The third form of investment is the purchase of Government promissory notes, but this is not only intended to be a convenient course to be adopted pending the occurrence of an opportunity to invest in less easily realizable securities. In the absence of any special reason to the country , all sum belonging to wards exceeding Rs. 500 and not required for investments in improvements or in land or for current expenses should be invested in Government paper until some letter investment can be secured. (See also paragraph 30 of Financial Commissioner’s Standing Order No. 33)
700. Treatment of tenants. The treatment of the tenants in an estate managed by the court or wards should be an example to neighboring landowners . Undue enhancement of rents must be avoided . There is often more than a mere business relation between land owner and cultivator –as is testified to by the favourable rents which tenants not infrequently enjoy and it is inexpedient to reduce all to a uniform level, and to abolish privilege which the proprietor himself would wish to preserve. A system of cash rents undoubtedly reduces the difficulties of management and renders accounts easier to keep and Government in the case of tits own lands almost invariably adopts a cash rent system. But local circumstances and the custom of the estate must be considered. The practice of putting leases up to competition is forbidden. No estate can be let in farm without the sanction of the Financial Commissioner which will rarely , if ever be given as the practice leads to rack renting of cultivating tenants and other evils connected with the employment of middle men. Government Favor a policy of selecting suitable lessees and conferring on them a tenure of sufficient duration to offer an inducement towards the improvement of the land. Short term leases induce a lessee to make the most out of the land while he can. As already stated the grant of loans to tenants is a useful way of investing surplus funds but tenants will not taccavi to carry out improvements unless they enjoy in some degree stability of tenure. Section 18(2) of the Act which makes convenience , entered into the court binding on the ward; after the property has been released from superintendence, gives the necessary basis for the policy here set forth.
In dealing with the subject of tenants , it should be remembered that where the interests of both parties coincide, no efforts should be spread to foster these. The use of pure seed , of improved implements, or manure and of good bulls are examples, and these deserve full encouragement. Managers are apt to be some what slow to adopt any measure which is not hallowed by custom., and hesitate to embark on the campaign for improvement when this involves extra work. Deputy Commissioners should endeavor to secure for the estate all advantages which science can bring.
697. Instructions issued in 1884. The instructions on this subject issued in 1884 are still applicable :-
(a) No tenant of such lands who cultivates his holding satisfactorily , pays his rent with regularly and otherwise fulfils the conditions of his lease, should be disturbed merely to make room for some new tenant.
(b) If the lease has expired or the rent of such land, the gourds for doing this should be placed on record briefly but clearly , and should be explained to the tenants concerned.
(c) When it is proposed to raise the rent of such land, the grounds for doing this should be placed on record briefly but clearly and should be explained to the tenants concerned.
(d) It is the duty of officers in charge of such lands to see that fair claims of this nature are asserted from time to time. But this should always be done with due and moderation, rents should not be arbitrarily raised, and the practice of putting leases up to auction or other forms of competition should never be resorted to .
(e) hen the time comes to renew a lease, the officer in charge of the land should fix a fair rent with reference to the letting value of land similarly circumstances in the neighborhood and should offer it at the rate so fixed to the old tenant, and only on his refusal should it be offered to others.