Ram Chandar v. Chheda Lal — 1905 DIGILAW 128 (ALL)

JUDGMENT : STANLEY, J. 1. The suit out of which this appeal has arisen was instituted by the plaintiff Ram Chandar for cancellation of a sale deed executed on the 7th of October, 1898, by Musarn-mat Chandermani Debi, the mother of the plaintiff, in favour of the defendant Chheda Lal, and for recovery of the property, the subject-matter of the sale. The property belonged to Anant Ram, father of the plaintiff, who was a resident of Puri in the district of Cuttack in Bengal. He died on the 30th of August, 1885, leaving the plaintiff his only son and his widow Musammat Chan-dermani Debi. The plaintiff was then a minor, having been born on the 26th of May, 1879. Musammat Chandermani applied to the District Judge of Cuttack under the provisions of the Guardians and Wards Act, VIII of 1890, to be appointed guardian of the person and property of the plaintiff, and on that application an order was passed on the 18th of January, 1895, appointing her guardian generally of his property and his person. It appears that she sold the property in dispute in this suit on the 7th of October, 1898, to the defendant, Chhada Lal, for a sum of Rs. 4000, without having obtained permission from the Court to do so, as is requisite under the provisions of section 29 of the Act to which we have referred. Karamat Khan, who was a co-sharer in the village, in which the property is situate, brought a suit for pre-emption of that sale against Chheda Lal and impleaded therein the plaintiff, treating him as a major, although, at the time he was under the age of 21 years. No guardian ad litem was appointed and Musammat Chaudermani Debi was not a party to the suit. A decree was passed in favour of the plaintiff in that suit on the 23rd of April, 1900, which was afterwards affirmed on appeal by the Additional Judge. The plaintiff did not attain his majority until the 26th of May, 1900. Therefore the decree which was passed against him on the 23rd of April, 1900, was clearly not binding upon him, he not having been properly represented in the suit. Later on, on the 18th of May, 1901, Karamat sold a portion of the property to the defendant, Musammat Ram Dei. Therefore the decree which was passed against him on the 23rd of April, 1900, was clearly not binding upon him, he not having been properly represented in the suit. Later on, on the 18th of May, 1901, Karamat sold a portion of the property to the defendant, Musammat Ram Dei. The present suit was instituted by the plaintiff on the 9th of July, 1901, for a declaration that the sale carried out by Musammat Chaudermani, was not binding upon him and ought to be cancelled and for recovery of the property, the subject-matter of that sale. 2. A number of defences were set up by the defendants, and amongst others, it was contended that the plaintiff ought in the pre-emption suit to have set up the invalidity of the sale, and not having done so, he is estopped now from questioning that sale. It was also contended that the plaintiff ought to have taken proceedings in execution under the provisions of section 244 of the Code of Civil Procedure and that a suit at his instance did not lie. There was a further contention advanced in the court below, namely, that the plaintiff attained majority on arriving at the age of 18 years, so far as regarded any property which was situate outside the jurisdiction of the District judge of Cuttack, and therefore the plaintiff was of age at the time when the pre-emption suit was instituted and the decree therein passed. The learned Subordinate Judge has upheld all the pleas raised by the defendants and has dismissed the plaintiff's suit. We shall shortly refer to his judgment. He says in it as regards, the pre-emption proceedings that the plaintiff was a minor at the time, but that he was represented in the suit by his mother as his guardian, and he further says that the plaintiff was in those proceedings “properly represented.” We find that he is clearly in error as regards this. The plaintiff's guardian was no party to the proceedings whatever, Toe plaintiff was sued as an adult and as the vendor of the property, and he was not represented by any guardian. 3. Labouring under this mistake the learned Subordinate Judge attached no weight to the rulings which were relied on by the plaintiff and which are referred to in the judgment as having no bearing upon the case. 3. Labouring under this mistake the learned Subordinate Judge attached no weight to the rulings which were relied on by the plaintiff and which are referred to in the judgment as having no bearing upon the case. We cannot understand how the learned Subordinate Judge fell into the error in regard to the facts which he appears to have done. A glance at the suit shows that the plaintiff was not represented in the pre-emption proceedings by his mother as guardian. He was treated as an adult throughout and had not the advantage of the protection of the guardian appointed by the Court. Then the learned Subordinate Judge has fallen into an error in supposing that the plaintiff could have objected to the execution of the pre-emption decree under the provisions of section 244 of the Code of Civil Procedure. It is obvious that section 144 does not bar the suit. The plaintiff could not have taken any steps under this section, inasmuch as the Court could not have listened to him if he contended that the decree which was obtained was not binding upon him or was a bad decree. Moreover, if he had taken any steps under section 244 and had got rid of the pre-emption decree, the property would still have remained in the hands of the vendee, Chheda Lal. The learned advocate for the respondent, has properly admitted that he cannot support the decision of the court below so far as it is based upon the two matters to which we have referred. 4. We next come to the ruling of the court below, that though the plaintiff was a minor at the time of the sale and at the time of the pre-emption proceedings as regards property situate in Cuttack, yet as regards property situate outside that district, he was of full age. This ruling also the learned advocate for the respondents admitted he was unable to support. But he endeavours to support the decree upon the construction which he asks us to place upon the provisions of section 16 of the Guardians and Wards Act of 1890. This ruling also the learned advocate for the respondents admitted he was unable to support. But he endeavours to support the decree upon the construction which he asks us to place upon the provisions of section 16 of the Guardians and Wards Act of 1890. That section provides that “if the Court appoints or declares a guardian for any property situate beyond the local limits of its jurisdiction, the Court having jurisdiction in the place where the property is situate, shall, on the production of a certified copy of the order appointing or declaring the guardian, accept him as duly appointed or declared and given effect to the order.” The contention of Mr. Chaudri is that inasmuch as a certified copy of the order appointing the plaintiff's mother, guardian of plaintiff's property and person in Cuttack, was not produced before the Court at Moradabad, the plaintiff's mother was not the certificated guardian in the district of Moradabad, ‘but remained the natural guardian of the plaintiff so far as regarded his property in the district of Moradabad, and could deal with it as such. We are wholly unable to accede to this ‘argument. It appears to us that once the mother of the plaintiff was appointed certificated guardian in Cuttack of the property generally of the plaintiff, she was certificated guardian of his property in all districts. The object and intention of the Legislature in passing section 16 of the Guardians and Wards Act was that the Court before which proceedings might be taken by any certificated guardian should, when apprised of the fact of the appointment of guardian, recognise and accept the guardian as duly appointed and give effect to the order of appointment. It is a directory section and does not in any way affect or prejudice the status of a certificated guardian when appointed generally over the property of a minor. The effect of the appointment of a guardian under the Guardians and Wards Act is that the guardian becomes the certificated guardian for all purposes until he is discharged and cannot lay aside his status as such and pose as a natural guardian. 5. The effect of the appointment of a guardian under the Guardians and Wards Act is that the guardian becomes the certificated guardian for all purposes until he is discharged and cannot lay aside his status as such and pose as a natural guardian. 5. We may further point out that under the provisions of section 3 of Act IX of 1875, a minor of whose person or property a guardian has been appointed by any Court of Justice, in this case the District Judge of Cuttack, shall be deemed to have attained his majority when he has completed his age of 21 years and not before. This section is operative generally when once a certificated guardian has been appointed, and it is idle to contend that a minor can be a major in one district and a minor in another. 6. Turning now to sections 29 and 30 of the Guardians and Wards Act, we find that section 29 forbids any mortgage or charge or transfer by sale, gift, exchange or otherwise, of any part of immovable property of a ward without a previous permission of the Court, and that section 30 provides that a disposal of immovable property by a guardian in contravention of the provisions of section 29 is voidable at the instance of any other person affected thereby, that is, any person other than the guardian, e.g., the minor in this case. It follows from this that the sale which was carried out by the plaintiff's certificated guardian without the permission of the Court was voidable at the instance of the plaintiff. He has chosen to avoid the sale, and there is nothing whatsoever to prevent him from doing so. He has not been guilty of any such conduct as would operate as an estoppel or preclude him from exercising the option which the Legislature has given to him. It is said, however, that the plaintiff has benefited by the sale which has taken place, and that incumbrances of affecting his property have been discharged out of the proceeds of the sale. The learned advocate for the appellant has expressed the willingness of his client to make restitution in respect of any advantage which he or his property may have derived from the sale in question. This being so,. The learned advocate for the appellant has expressed the willingness of his client to make restitution in respect of any advantage which he or his property may have derived from the sale in question. This being so,. we cannot pass a formal decree in he appeal without the determination of two issues which we propose to remand to the lower court with a view to ascertaining what, if any, advantage has been derived by the plaintiff or by his estate out of the sale effect by his mother. We therefore remand the following issues: (1) What portion, if any, of the purchase moneys paid on the occasion of the sale by the plaintiff's mother in the pleadings mentioned has been expended for the benefit of the plaintiffs estate, or for his support, education or marriage? (2) What are the respective values of the property, the subject-matter of the sale, now in the hands of Hakim Chheda Lal and the purchasers from Karamat Khan respectively? 7. With the second issue the plaintiff has no concern. 8. We accordingly refer these issues under the provisions of section 566 of the Code of Civil Procedure. The court below will be at liberty to take such relevant evidence as may be advanced by the parties, On return of the findings the usual ten days will be allowed for filing objections. 9. We reserve the question of costs.