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State of Gujarat - Act

Gujarat Court of Wards Act, 1963

GUJARAT
India

Gujarat Court of Wards Act, 1963

Act 37 of 1963

Published on 15 October 1963
Commenced on 15 October 1963
[This is the version of this document from 15 October 1963.]
[Note: The original publication document is not available and this content could not be verified.]

Gujarat Court of Wards Act, 1963Gujarat Act No. 37 of 1963[Dated 15th October 1963]For Statement of Objects and Reasons see Gujarat Government Extra Ordinary Gazette, Part V. April 11, 1963, p. 195.An Act to establish a Court of Wards in the State of Gujarat.It is hereby enacted in the Fourteenth Year of the Republic of India as follows:-

1. Short title and extent.

(1)This Act may be called the Gujarat Court of Wards Act, 1963

(2)It shall extend to the whole of the State of Gujarat.

2. Definitions.

- In this Act, unless there is anything repugnant in the subject or context-

(a)"Government ward" shall mean any person of whose properly, or of whose person and property, the Court of Wards may, for the time being, have the superintendence under this Act;

(b)"District Court" shall include the Court of an Assistant Judge invested under section 19 of the Bombay Civil Courts Act, 1869, with all the powers of a District Judge;

(c)"Land Revenue Code" means-

(a)in the Bombay and Saurashtra areas of the State of Gujarat, the Bombay Land Revenue Code, 1879 (Bombay V of 1879), and

(b)in the Kutch area of the State of Gujarat the said code as applied to that area; and

(d)"property-holder" means a person holding property whether as an owner or otherwise and includes a holder of land holding the land either as an occupant or a tenant of such land.

Explanation. - In this clause "person" or "holder" means a person who has attained the age of majority according to the Indian Majority Act, 1875 but where property or land is held by an undivided Hindu family or by two or more persons jointly, it is sufficient, if at least one of the members of such family or one of such joint holders has attained the age of majority according to the said Act.

3. Collector to be Court of Wards.

- Subject to the provisions of section 10, the Collector shall be the Court of Wards for the limit of his district;Provided that the State Government may, if it thinks fit, by notification in the Official Gazette-

(a)appoint a special officer to be the Court of Wards for a division;

(b)constitute a Board consisting of two or more officers to be the Court of Wards for a division; or

(c)appoint any other officer or officers to be a Court of Wards for any part of the State of Gujarat and direct that such part shall thereupon be excluded from the jurisdiction of the Court of Wards of any division in which it lies wholly or partly.

4. Assumption of superintendence by Court of Wards of property of disqualified person.

(1)The Court of Wards may, with the previous sanction of the State Government assume the superintendence of the property of any property-holder holding property within the local limits of its jurisdiction who is disqualified to manage his own property (hereinafter in this section referred to as "the disqualified person").

(2)The previous sanction referred to in sub-section (1) shall be given only where the State Government is of opinion that it is expedient in the public interest to preserve the property of the disqualified person for the benefit of his' family and that the said property is of such value that economical management by the Court of Wards is practicable.

(3)No sanction given under sub-section (1) shall be called in question in any Court.

5. Persons who are to be deemed disqualified in certain cases.

(1)For the purposes of section 4, a person shall be deemed to be disqualified to manage his own property if-

(a)such person being a female is declared by the District Court, on the application of the collector and after such judicial inquiry as it thinks necessary, to be unfitted to manage her own property;

(b)such person is declared by the District Court, on the like application and after like inquiry, to be incapable of managing or unfitted to manage, his own property owing to-

(i)any physical or mental defect or infirmity, or

(ii)such habits as cause, or are likely to cause injury to his property; or

(c)such person is adjudged by a competent Civil Court to be of unsound mind and incapable of managing his affairs.

(2)No appeal shall lie from any declaration under clause (a) and (b) of sub-section (1).

6. Assumption of superintendence in case of undivided Hindu family.

(1)The Court of Wards shall not assume under sub-section (1) of section 4, the superintendence of the property of any undivided Hindu family, except where all the co-sharers are disqualified under sub-section (1) of section 5 or where all the co-shares other than those who are disqualified under sub-section (1) of section 5 agree to the Court of Wards assuming such superintendence.

(2)Where two or more property-holders are co-sharers otherwise than as co-sharers in an undivided Hindu family and one of such co-sharers is disqualified under subsection (1) of section 5, the Court of Wards may assume the superintendence of the undivided share of such disqualified property-holder or may obtain partition on behalf of the disqualified property-holder by suit or otherwise, and assume the superintendence of the property allotted to such property-holder in the partition.

7. Assumption of superintendence by Court of Wards on application of property holder.

(1)Any property-holder may apply in writing to the State Government to have his property placed under the superintendence of the Court of Wards, and the State Government may on such application, where it is of opinion that it is expedient in the public interest to preserve the property of such holder for the benefit of his family and that the said property is of such value that economical management by the Court of Wards is practicable, order the Court of Wards to assume the superintendence of the property.

(2)Any co-sharer of property, other than a co-sharer in an undivided Hindu family, may make an application under sub-section (1) in respect of his own share in such property.

(3)In every case where property is held by co, sharers, whether as co-sharers in an undivided Hindu family or otherwise, an application signed by co-sharers holding an aggregate interest of not less than three-fourths of the whole property shall, for the purposes of sub-section (1), be deemed to be an application by a property-holder in respect of the whole property:Provided that-

(i)no order shall be made on any such application under sub-section (1) where it appears to the State Government doubtful whether the aggregate interest of the co-sharers signing the application amounts to not less than three-fourths of the whole property; and

(ii)nothing in this Act shall be deemed to prevent any co-sharer other than those signing any such application from obtaining partition of his share, whether by suit or otherwise.

(4)An order made under sub-section (1) shall be sufficient to authorise the Court the Court of 'Wards to assume the superintendence of the property referred to therein, and no such order shall be called in question in any Court.

8. Provisions for temporary custody and protection of property in certain cases.

(1)Whenever the Collector receives information that any property holder is or should be, disqualified under sub-section (1) of section (1) of section 5, he may apply to the District Court and the District Court may authorize the Court of Wards to take such steps and make such order for the temporary custody and protection of the property as the Court of Wards thinks fit.

(2)Whenever the Court of Wards is authorised to proceed under sub-section (1) it shall forthwith report its action for the information of the State Government.

(3)No appeal shall lie from any order of authorisation under sub-section (1).

9. Assumption of superintendence by Court of Wards of person of disqualified property-holder in certain cases.

- Where the Court of Wards assumes the superintendence of the property of any property-holder disqualified under clause (c) of sub-section (1) of section 5, 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 of Wards to assume the superintendence of the person of a female who is married and is not living separately from her husband.

10. Assumption of superintendence by Court of Wards were property-holder holds land in more than one jurisdiction.

- Where a disqualified property-holder or a property-holder who has been made a Government ward in pursuance of an order under sub-section (1) of section 7, holds property within the territorial jurisdiction of two or more Courts of Wards such one only of the Courts of Wards as the [State Government] [These words were substituted for the words 'Commissioner, where such Court of Wards exercise jurisdiction within his division, and the State Government in any other case' by Gujarat 15 of 1964, Section 4, Schedule] may determine in this behalf shall assume the superintendence of the property, or of the person and property, of the property-holder.

11. Assumption of superintendence to be notified and to extend to whole of Government ward's property.

- Whenever the Court of Wards assumes the superintendence of the property of any property-holder under this Act, the fact of such assumption and the date on which it was sanctioned by the State Government shall be notified in the Official Gazette and in such other manner as the State Government may, by general or special order, direct.

(2)On and with effect from the date of such sanction, the whole of the property, moveable and immovable, of such property-holder whether the existence of any such property is known to the Court of Wards or not, shall be deemed to be under the superintendence of the Court of Wards.

(3)Any property which the Government ward may inherit or acquire by succession subsequently to the date of such sanction shall also be deemed to be under the superintendence of the Court of Wards.

(4)The Court of Wards may, in its discretion, assume, or refrain from assuming, the superintendence of any property which the Government ward may acquire otherwise than by inheritance or succession subsequently to the date of such notification.

12. Publication of notice to claimants against Government ward.

(1)On the issue of a notification under sub-section (1) of section 11, the Court of Wards shall publish in the Official Gazette and in such other manner as the State Government may, by general or special order, direct a notice, in English and also in Gujarati, calling upon all persons having claims against the Government ward or his property to submit the same in writing to it within six months from the date of the publication of the notice.

(2)Where the Court of Wards is satisfied that any claimant was unable to comply with the notice published under sub-section (1), it may allow his claim to be submitted at any time after the date of the expiry of the period fixed therein; but any such claim shall, notwithstanding any law, contract, decree or award to the contrary, cease to carry interest from the date of the expiry of such period until submission.

(3)Every claim against the Government ward or his property (other than a claim on the part of the Government) not submitted to the Court of Wards in compliance with the notice published under sub-section (1), or allowed to be submitted under sub-section (2), shall save in the cases provided for by clause (c) of sub-section (2) of section 16, and by sections 6 and 13 of the Indian Limitation Act, 1908 (IX of 1908) be deemed for all purposes and on all occasions, whether during the continuance of the superintendence or afterwards, to have been duly discharged, unless, in any suit or proceeding instituted by the claimant, or by any person claiming under him, in respect of any such claim, it is proved to the satisfaction of the Court that he was unable to comply with the notice published under sub-section (1).

13. Power to require claimants to furnish full particulars and documents.

(1)the Court of Wards may by written order require that any claimant submitting his claim shall within such reasonable time as it may prescribe in such order, furnish full particulars thereof, and produce all documents (including entries in books of account) on which he relies to support his claim, together with a true copy of every such document:Provided that, where the claim relates to an amount secured by a decree or award, it shall be sufficient for the claimant to produce before the Court of Wards, a certified copy of the decree and a certificate from the Court which passed or is executing the same declaring the amount recoverable thereunder or a true copy of the award and statement of the sum recoverable thereunder, as the case may be; and where 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.

(2)The Court of Wards shall, after marking for the purpose of identification, every original document so produced and verifying the correctness of the copy, retain the copy and return the original to the claimant.

(3)Where any document, which is in the possession or under the control of a claimant, is not produced by him in accordance wit an order under sub-section (1), the document shall not be admissible in evidence against the Government ward, whether during the continuance of the superintendence or after-wards, in any suit brought by such claimant, or by any person claiming under him, in respect of any claim to which such document relates, unless it is proved to the satisfaction of the Court that he was unable to produce such document as required by such order.

14. Investigation and decision of claims.

(1)On receipt of all claims submitted in compliance with the provisions of sections 12 and 13, the Court of Wards shall proceed to investigate such claims and shall decide, subject to the provisions of sub-section (3), which of them are to be wholly or partly admitted or wholly or partly rejected, as the case may be, and shall communicate its decision in writing to each claimant concerned.

(2)Where the Court of Wards has admitted any claim under sub-section (1), it may make to the claimant a proposal in writing for the reduction of the claim or of the rate of interest to be paid in future, or of both; and if such proposal or any modification of it, is accepted by the claimant, and his acceptance is finally recorded and attested by the Court of Wards or by any Revenue Officer not below the rank of an Assistant or Deputy Collector whom the [State Government] [These words were substituted for the words 'Commissioner', by Gujarat 15 of 1964, Section 4, Schedule] may, by general or special order, appoint in this behalf, it shall be conclusively binding upon the claimant:Provided that, if any portion of the claim reduced as aforesaid is unsatisfied, at the time when the superintendence of the property by the Court of Wards is withdrawn the clamant shall be entitled to recover a sum bearing the same proportion to the original claim admitted under sub-section (1) as the unsatisfied portion ears to the reduced claim.

(3)Subject to the provisions of sub-section (2), nothing in this section shall be construed to bar the institution of a suit in a Civil Court for the recovery of a claim against a Government ward or his property which has been duly submitted to the Court of Wards:Provided that no decision of the Court of Wards under this section shall be proved in any such suit as against the defendant.

15. Execution of decrees to be stayed till certificate filed.

- On the publication of a notice under sub-section (1) of section 12 no proceeding in execution of any decree against the Government ward or his property shall be instituted or continued until the decree holder files a certificate from the Court of Wards that the decree claim has been duly submitted or until the expiration of one month from the date of receipt by the Court of Wards of a written application for such certificate, accompanied by a certified copy of a decree.

(2)Any person holding a decree against the Government ward or his property shall be entitled to receive from the Court of Wards, free of cost, the certificate required by subsection (1).

(3)In computing the period of limitation prescribed by the Indian Limitation Act, 1908 (IX of 1908), or by section 48 of the Code of Civil Procedure, 1908 (V of 1908), for any application for the execution of a decree, proceedings in which have been stayed or temporarily barred by reason of the claim not having been duly submitted, the time from the date of the notice published under sub-section (1) of section 12 or of the decree if it was passed subsequently to the publication of the notice, to the date of due submission shall be excluded.

16. Report to [State Government] [These words were substituted for the words 'Commissioner', by Gujarat 15 of 1964, Section 4, Schedule].

- When all claims have been investigated under section 14, the Court of Wards shall submit to the [State Government] [These words were substituted for the words 'Commissioner', by Gujarat 15 of 1964, Section 4, Schedule] a schedule of the debts and liabilities of the Government ward, and the [State Government] [These words were substituted for the words 'Commissioner', by Gujarat 15 of 1964, Section 4, Schedule] may, where the property appears to be involved beyond all hope of extrication, or for any other sufficient reason, by order published in the Official Gazette, direct that on a date to be fixed by the order, the superintendence of the property, or of the person and property, of the Government ward by the Court of Wards shall be withdrawn.

(2)On the date so fixed-

(a)the superintendence shall terminate;

(b)the owner of the property under superintendence shall be restored to the possession thereof, subject to any contracts entered into by the Court of Wards for the preservation or benefit of such property; and

(c)the claims referred to in sub-section (3) of section 12 shall revive.

(3)In calculating the periods of limitation applicable to suits to recover and enforce claims revived under clause (c) of sub-section (2), the time during which such superintendence has continued shall be excluded.

17. Delegation of powers by Court of Wards.

(1)Where the Collector is not the Court of Wards, with the general or special sanction of the [State Government] [These words were substituted for the words 'Commissioner', by Gujarat 15 of 1964, Section 4, Schedule] the Court of Wards may, from time to time, delegate all or any of its powers to the Collector of any district in which any part of the property of a Government ward is situated, or to any other officer not below the rank of an Assistant or Deputy Collector whom it may appoint in this behalf, and may, at any time, with the like sanction, revoke such delegation.

(2)Where the Collector is not the Court of Wards subject to any general or special orders of the [State Government] [These words were substituted for the words 'Commissioner', by Gujarat 15 of 1964, Section 4, Schedule], the Court of Wards may exercise all or any of the powers conferred on it by this Act through the Collector of any district in which any part of the property of a Government ward is situated, or through any other officer not below the rank of an Assistant or Deputy Collector whom it may appoint in this behalf, and subject to the like orders, any such Collector or Assistant or Deputy Collector may exercise all or any of the powers delegated to him under this Act through any Revenue Officer subordinate to him not below the rank of a Mahalkari.

(3)Where the Collector is the Court of Wards, subject to any general or special orders of the [State Government] [These words were substituted for the words 'Commissioner', by Gujarat 15 of 1964, Section 4, Schedule], the Court of Wards may exercise all or any of the powers under this Act through an Assistant or Deputy Collector whom it may appoint in this behalf and subject to the like orders, any such Assistant or Deputy Collector may exercise all or any of the powers delegated to his under this Act through any Revenue-Officer subordinate to him not below the rank of a Mahalkari.

18. Appointment of manager by Court of Wards.

- The Court of Wards may appoint a manager of the property of any Government ward-under its superintendence.

19. Liabilities, etc. of managers appointed by Court of Wards.

(1)Every manager appointed by the Court of Wards shall-

(a)give such security, with such sureties (if any) as the Court of Wards thinks fit for the due discharge of the trusts of his office, and for the due account of all property and moneys which come into his control or possession by reason of his office;

(b)be entitled to such allowance as the Court of Wards thinks fit for his care and pains in the execution of his duties; and

(c)be responsible for any loss occasioned to the property under his management by his wilful default or gross negligence; and every such loss shall be recoverable from him and from his sureties (if any) as an arrear of land revenue.

(2)Every manager or other servant of the Court of Wards shall be deemed to be a "public servant" within the meaning of Chapter IX of the Indian Penal Code; and in the definition of "Legal remuneration" contained in section 161 of the said Code, the word "Government" shall, for the purposes of this sub-section, be deemed to include the Court of Wards.

20. Power of Court of Wards to appoint guardians of certain Government wards.

(1)The Court of Wards may appoint guardians for the care of the persons of Government wards whose persons are, for the time being, under its superintendence.

(2)In appointing a guardian under this section, the Court of Wards shall be guided by the provision of the Guardians and Wards Act, 1890 (VIII of 1890).

21. General powers of Court of Wards.

- Subject to the provisions of this Act and of any rules thereunder, the Court of Wards-

(a)may, of itself or through the manager (if any) appointed by it under this Act, do all such things requisite for the proper care and management of any property of which it assumes the superintendence under this Act, as the owner of the property, if it was not under the superintendence of the Court of Wards, might do for its proper care and management; and

(b)may, of itself or through the guardian (if any) appointed by it under this Act, do, in respect of the person of any Government ward whose person is, for the time being, under its superintendence, all such things as may lawfully be done by a guardian.

22. Custody and residence of certain government wards.

- The Court of Wards may pass such orders as it thinks fit in respect of the custody and residence of any Government ward whose person is, for the time being, under its superintendence.

23. Allowance for Government ward, his family and dependents.

- The Court of Wards may, from time to time, determine what sums shall be allowed in respect of the expenses of any Government ward and of his family and dependents.

24. Duties of Court of Wards or manager.

- The Court of Wards, or the manager (if any) appointed by it under this Act, shall manage the property of every Government ward under its superintendence or under his management diligently and faithfully for the benefit of the Government war, and shall in every respect act to the best of its or his judgement for the Government ward's interest as if the property were its or his own.

25. Power of Court of Wards as to property of Government wards.

- The Court of Wards, may sell, exchange, mortgage, charge or let the property of a Government ward, and may do all such things as it may judge to be best for the benefit of the property and the advantage of the Government ward:Provided that-

(a)the previous sanction of the [State Government] [These words were substituted for the words 'Commissioner', by Gujarat 15 of 1964, Section 4, Schedule] shall be required to any sale, exchange or mortgage of, or charge on, immovable property and to any lease of such property a for term exceeding ten years, and

(b)where one third of the immovable property of a Government ward has been sold or exchanged no further sale or exchange shall be made.

26. Power of Court of Wards to evict.

- The Court of Wards may summarily evict in the manner specified in section 202 of the Land Revenue Code, any person occupying or in possession of, any immovable property under its superintendence, to the use and occupation of which he has ceased to be entitled under any of the provisions of that Code, or which he uses or occupies in contravention of any of the provisions of this Act.

27. Recovery of arrears of rent as arrears of land revenue.

- For the purpose of the recovery of rents, profits and other sums due in respect of property under the superintendence of the Court of Ward (whether such arrears become due before or after the assumption of such superintendence) the Court of Wards shall have all the powers possessed by a Collector under the law for the time being in force for the recovery of land revenue due to Government, including the power conferred by section 176 of the Land Revenue Code.

28. Property under superintendence not liable to sale for arrears.

- No immovable property under the superintendence of the Court of Wards shall be liable to sale on account of arrears of land revenue:Provided that all such arrears of land revenue shall be the first charge upon the sale-proceeds of any such property which may be sold for any other cause than for arrears of land revenue.

29. Power of Court of Wards to direct any property of Government ward to be exempt from process of Civil Court.

(1)Whenever it shall appear to the Court of Wards that by virtue of or in execution of a decree or order of a Civil Court, the property of a Government ward under its superintendence is or is likely to be insufficient for the payment of the expenses-

(a)of the management of the property of the said ward under this Act, or

(b)of the said ward, his family and dependents, allowed under section 23, the Court of Wards may issue a certificate in writing to the Civil Court executing the said decree or order directing that the said property shall, for such period as the Curt of Wards may from time to time expedient, be exempt from any attachment, sale, transfer or other process by a Civil Court.

(2)Upon the receipt of such certificate the Civil Court executing the decree or order against the Government ward shall, notwithstanding anything contained in section 16 or any other law for the time being in force, remove any attachment or other process pending against the property specified in the certificate and shall set aside any order of sale or transfer of the said property and thereupon the said property shall be exempt from any attachment, sale, transfer or other process by a Civil Court for the period specified in the said certificate and during the said period the execution of such decree or order shall, so far as it affects the said property for the purposes of section 15 of the Indian Limitation Act, 1908, (IX of 1908), be deemed to have been stayed:Provided that if the superintendence of the Court of Wards of the property of the said Government ward terminates under section 16 or is withdrawn under section 39, the exemption granted under this section shall, with effect from the date of such termination or withdrawal, cease to be in operation.

30. Notice of suit.

- No suit relating to the person or property of any Government ward shall be brought in any Civil Court until the expiration of two months after notice in writing stating the name and place of abode of the intending plaintiff, the cause of action and the relief claimed, has been delivered to, or left at the office of, the Court of Wards: and the plaint shall contain a statement that such notice has been so delivered or left:Provided that notice under this section shall not be required in the case of any suit the period of limitation for which will expire within three months from the date of a notification issued under sub-section (1) of section 11.

31. Manager or Court of Wards to be next friend or guardian in suit by or against Government wards.

- Subject to the provisions of the Code of Civil Procedure, 1908 (V of 1908), in every suit brought by or against a Government ward, the manager of the Government ward's property, or, where there is no manager, the Court of Wards having the superintendence of the Government ward's property, shall be named as the next friend or guardian for the suit, as the case may be.

32. Payment of costs.

- Wherein any suit brought by or against a Government ward, any Civil Court decrees any costs against the Government ward's next friend or guardian for the suit, the Court of Wards shall cause the costs to be paid out of any property of the Government ward which may, for the time being, be in its hands.

33. Processes against Government ward to be served on next friend or guardian.

- Every process which may be issued out of any Civil or Revenue Court against any Government ward shall be served on the Government ward's next friend or guardian for the suit.

34. Authority of Court of Wards required in case of suits brought on behalf of Government wards.

- No suit shall be brought, and no appeal in any suit shall be preferred by any guardian or manager appointed by the Court of Wards on behalf of any Government ward unless it is authorised by an order in writing of the Court of Wards:Provided that a manager may authorised a plaint or a memorandum of appeal to be filed in order to prevent a suit or appeal from being barred by the law of limitation, but the suit or appeal shall not afterwards be proceeded with except with the sanction of the Court of Wards.

35. Adjudication of civil disputes between two or more Government wards.

(1)Where any question arises as between two or more Government wards of such a nature that an adjudication upon it by a Civil Court is expedient, it shall be lawful for the Court of Wards, acting through the Collector of the district in which a case might have been stated for the opinion of the Civil Court with regard to such matter under rule 1 of Order XXXV1 of the Code of Civil Procedure, 1908 (V of 1908), to file in the Civil Court having jurisdiction a statement containing the point or points for determination.

(2)When such statement has been filed, the Court shall appoint a guardian for the suit for each ward having a separate interest, and such guardians shall thereupon conduct the case subject to the general control of the Court of Wards.

(3)The Court may, if it thinks fit, amend the case so stated and shall then proceed to hear and dispose of the case in the manner provided in Chapter XXXVIII of the Code of Civil Procedure, 1908 (V of 1908), for the hearing and disposal of cases stated for opinion under that Chapter.

36. Disabilities of Government ward.

- Except with the approval of the Court of Wards, a Government ward shall be incompetent to transfer or create any charge on, or interest in, his property or any part thereof (except such interest as may be created by a will made in accordance with section 37), or to enter into any contract which may involve him in pecuniary liability; and no suit shall be brought in any Civil Court whereby to charge any person upon any promise made after he has ceased to be a Government ward, to pay any debt, contracted during the period when he was a Government ward or upon any ratification made after he has ceased to be a Government ward of any promise or contract made during the period aforesaid, whether there is or is not any new consideration for such promise or ratification.

(2)Nothing in this section shall be deemed to affect the capacity of a Government ward to enter into a contract of marriage:Provided that a Government ward shall not incur, in connection with such a contract, 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 of Wards may, in writing, declare to be reasonable.

37. Consent of State Government necessary to wills made by Government wards.

- No will made by a Government ward shall be valid without the consent of the State Government obtained, either previously or subsequently to the making of the will, on application made to it through the Court of Wards:Provided that consent shall not be withheld unless it appears to the State Government that the wall is contrary to the personal or special law applicable to the ward, or that it is likely to cause considerable pecuniary embarrassment to the property, or to lower considerably the influence or respectability of the family in public estimation.

38. Procedure when succession to Government Ward's property is disputed.

- Where on the death of any Government ward the succession to his property or any part thereof is disputed the Court of Wards may, with the sanction of the State Government, either retain the superintendence of the property until one of the claimants has established his claim to the same in a competent Civil Court, or institute a suit of interpleader against all the claimants.

39. Withdrawal of superintendence of Court of Wards.

(1)Where superintendence has been assumed in pursuance of an order under sub-section (1) of section 7, the Court of Wards shall withdraw such superintendence as soon as, in the opinion of the State Government, the property is free from embarrassment.

(2)The Court of Wards may, with the sanction of the State Government, at any time withdraw its superintendence from the person or property, or both, of a Government ward, and shall withdraw its superintendence as soon as, in the opinion of the District Court, certified to the Court of Wards,

(a)in the case of a female disqualified under clause (a) of sub-section (1) of section 5, she is fit to manage her own property;

(b)in the case of a person disqualified under clause (b) of the said subsection, he is fit to manage his own property;

(c)in the case of a person disqualified under clause (c) of the said subsection, he ceases to be of unsound mind and incapable of managing his affairs; and

(d)where it was assumed under sub-section (1) of section 4, in the case of a family which was undivided according to Hindu law, any co-sharer ceases to be disqualified under sub-section (1) of section 5;

Provided that-

(i)where a Government ward dies or ceases to be disqualified and his property is still encumbered with debts and liabilities, the Court of Wards may, with the sanction of the State Government, retain the said property under its superintendence until such debts and liabilities, have been discharged; and

(ii)in the case of property-holders who are co-sharers in an undivided Hindu family where one or more of the proprietors of a property remain disqualified although another or others have ceased to be disqualified, the Court of Wards may, with the sanction of the State Government, retain the whole of the property under its superintendence, paying any proprietor who has ceased to be disqualified from surplus income such portion as shall be proportionate to his interest in the estate:

Provided further that, where the Court of Wards withdraws its superintendence, such withdrawal shall not affect any contract entered into by the Court of Wards in the lawful exercise of its powers; andProvided also that-

(a)no person who has once been declared disqualified under clause (a) or (b) of sub-section (1) of section 5, and

(b)except in the case of any co-sharer other than those signing an application described in sub-section (2) of section 7, no property-holder who has been made a Government ward in pursuance of an order under sub-section (1) of section 7, shall be competent, on the withdrawal of such superintendence, to transfer or create any charge on or interest I his property or any part thereof for a period beyond the term of his natural life, except with the previous sanction of the Collector.

(3)No appeal shall lie from any opinion certified under sub-section (2).

40. Withdrawal to be notified in Official Gazette.

- Where the Court of Wards withdraws its superintendence from any person or property under this Act, the fact of such withdrawal shall be notified in the Official Gazette and in such other manner as the State Government may, by general or special order, direct.

41. Appeal.

(1)An appeal shall lie from every order, other than an order of the District Court, passed under this Act, whether original or on appeal,

(a)where the order is that of [****] [The words 'a Commissioner or' were deleted by Gujarat 15 of 1964, Section 4 Schedule] of any special or other officer appointed or Board constituted, under the proviso to section 3, to the State Government;

(b)where the order is that of a Collector, to the [State Government] [These words were substituted for the words 'Commissioner', by Gujarat 15 of 1964, Section 4 Schedule], or where any such officer or Board has jurisdiction, to such Officer or Board; and

(c)in all other cases, to the Collector:

Provided that where any such officer or Board has been appointed to be Court of Wards and the order has been passed by any officer subordinate to such Court of Wards for the purposes of this Act, the State Government may direct that appeal shall lie to such officer or Board.

(2)The provisions of sections 205 to 210 (both inclusive) of the Land Revenue Code shall apply to all such appeals.

42. Control of Commissioner and State Government.

- All orders or proceedings under this Act, other than orders or proceedings of the District Court, shall be subject to the supervision and control of [**] [The words 'the Commissioner and' where deleted, by Gujarat 15 of 1964, Section 4 Schedule] the State Government and [*] [The words 'the Commissioner and' where deleted, by Gujarat 15 of 1964, Section 4 Schedule] the State Government may, if [***] [The words 'he or' where deleted, by Gujarat 15 of 1964, Section 4 Schedule] it thinks fit, reviles, modify, or reverse any such order or proceeding, whether an appeal is presented against any such order or proceeding or not.

43. Power to compel attendance of witness.

- For the purposes of this Act, the Court of Wards may summon and enforce the attendance of witnesses and compel them to give evidence, and compel the production of documents, by the same means and, as far as possible, in the same manner, as is provided in the case of a Civil Court by the Code of Civil Procedure, 1908 (V of 1908).

44. Bar of suits.

- No suit shall be brought in any Civil Court in respect of the exercise of any discretion conferred by this Act, or against the Court of Wards or any public servant or person duly appointed or authorised under this Act in respect of anything in good faith done or purporting to be done under the provisions thereof or the rules made thereunder:Provided that any person evicted under section 26 may sue for restitution; andProvided further that any tenant from whom an arrear of rent has been recovered under section 27 may sue for recovery of the amount, or any part thereof, so recovered.

45. Power of State Government to make rules.

(1)The State Government may, by notification published in the Official Gazette, make rules to carry out the purposes and objects of this Act.

(2)In particular and without prejudice to the generality of the foregoing power, such rules may;

(a)prescribe the matters to which regard should be had in appointing or removing guardians and managers, and in fixing their remuneration;

(b)regulate the form, conditions and amount of security', and the number of sureties (if any), to be given by managers;

(c)prescribe the cases in which proposals or arrangements connected with the administration of the properties of Government wards shall be reported for the sanction of the State Government;

(d)prescribe the accounts and other returns, and the form and other particulars thereof, which shall be rendered to the Court of Wards and by the Court of Wards to the State Government;

(e)regulate the custody of securities and the title deeds belonging to the estate or property of a Government ward;

(f)regulate the procedure in inquiries by, and in appeals from orders of the Court of Wards;

(g)prescribe the mode in which powers delegated to managers are to be notified for the information of persons concerned;

(h)prescribe the mode in which any expenses incurred by the Court of Wards or the Collector under any power conferred by this Act may be recovered; and

(i)generally prescribe the manner in which the powers and duties of the Court of Wards under this Act shall be exercised and performed.

(3)The power to make rules conferred by this section shall be subject to the condition of the rules being made after previous publication.

(4)All rules made under this section shall laid for not less than thirty days, before the State Legislature as soon as possible after they are made, and shall be subject to rescission by the Legislature or to such modifications as the Legislature may make, during the session in which they are so laid or the session immediately following;

(5)Any rescission or modification so made by the State Legislature shall be published in the Official Gazette and shall thereupon take effect.

46. Repeals and savings.

(1)The Bombay Court of Wards Act, 1905 (Bombay I of 1905), and that Act as applied to the Kutch area of the State of Gujarat, except in so far as they relate to the establishment of Courts of Wards for the estates of Rulers of Indian States and Bombay Court of Wards Act, 1905 (Bom I of 1905), as adapted and applied to the Saurashtra area of the State of Gujarat are hereby repealed.

(2)The provisions of the Bombay General Clauses Act, 1904 (Bombay I of 1904), shall apply the repeal of the Acts referred to in sub-section (1):Provided that anything done or any action taken under the provisions of the Acts hereby repealed shall be deemed to have been done or taken under the Corresponding provisions of this Act and shall continue in force until superseded by anything done or any action taken under the provisions of this Act.

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State of Gujarat - Act