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2001 DIGILAW 722 (CAL)

BISWANATH MONDAL v. DURGA PRASAD CHATTOPADHYAY

2001-12-03

ALTAMAS KABIR, GORACHAND DE

body2001
A. KABIR, J. ( 1 ) THE Respondent No. 1 herein filed a suit, being Title Suit No. 24 of 1978, in the Court of the Subordinate Judge at Burdwan, against the appellants herein and the other respondents, inter alia, for declaration of title and recovery of possession of the suit properties and alternatively for partition. ( 2 ) THE case as made out in the plaint is that the lands described in schedule 'ka' to the plant originally belonged to one Debendra Nath Mondal who died in or about the year 1972 leaving behind him surviving his four sons, the defendant Nos. 1 to 4 in the suit, five daughters, the defendants Nos. 5 to 9, and his widow, Renuka Bala. Upon her claim that the heirs of Debendra Nath Mondal had effected an amicable partition of his properties by a Teknams, Renuka Bala for herself and on behalf of her minor children, the defendant Nos. 3, 4 and 5 sold to the plaintiff, Durga Prasad Chattopadhyay, the lands described in item No. 1 of schedule 'kha' to the plaint by a registered deed 8th April, 1974 for a consideration of Rs. 600/ -. On the basis of the same claim, the defendant No. 2, Haradhan Mondal and Renuka Bala for herself and for and on behalf of her minor children, the defendant Nos. 3, 4 and 5, sold to the said Durga Prasad Chattopadhyay the lands described in item No. 2 of schedule 'kha' to the plaint, for a consideration of Rs. 3000/ -. ( 3 ) CLAIMING that taking advantage of the death of Renuka Bala and the absence of the Teknama the defendants had dispossessed him from the said lands, Durga Prasad Chattopadhyay brought the above suit for declaration of his title therein and for recovery of possession there of and alternatively for partition. ( 4 ) THE suit was contested by the defendant Nos. 1 to 6, 7, 8 and 9 by filing a joint written statement where the plaint case was denied and it was asserted that Renuka Bala was an illiterate woman and was barely able to append her signature with difficulty. It was also stated that at the relevant time when the second deed, Exhibit 1 (a), was executed on 14th May, 1975, the defendant Nos. It was also stated that at the relevant time when the second deed, Exhibit 1 (a), was executed on 14th May, 1975, the defendant Nos. 2, Haradhan Mondal, was a minor, but had been shown to be a major for the purposes of the deed. It was contended that on the said date Haradhan was incompetent to execute the sale deed and the plaintiff did not acquire any title in respect of his share in the suit properties. ( 5 ) ON the aforesaid pleadings the following issues were framed :1. Has the plaintiff any cause of action against the defendant? 2. Is the suit maintainable in the present form and under law? 3. Is the suit bad for misjoinder and non-joinder of necessary parties? 4. Was there any amicable partition between the heirs of Debendra Nath Mondal and was khas schedule properties allotted to the minor defendants 2, 3, 4 and 5? 5. Is the plaintiff entitled to get a decree for declaration of title to the kha schedule land as prayed for? 6. Is the plaintiff entitled to get a decree for khas possession in kha schedule property evicting defendants 1 to 9 therefrom? 7. Is the plaintiff entitled to get a decree for mesne profits as prayed for? 8. Is the plaintiff entitled to get a decree for partition in the kha schedule land by metes and bounds and for declaration in respect of item Nos. 1 and 2 property of kha schedule property as prayed for? 9. To what relief, if any, is the plaintiff entitled? ( 6 ) NEGATING the defendant's claim that Haradhan was a minor at the time of execution and registration of the deed of sale dated 14th May, 1975, Exhibit 1 (a), but holding that in the absence of permission from the District Judge under section 8 (2) of the Hindu Minority and Guardianship Act, 1956, the plaintiff did not acquire any interest in the properties of the defendants Nos. 3 to 5 under the two deeds, the learned trial Court decreed the suit in the alternative for partition in preliminary form on contest upon declaration of the plaintiff's ? 3 to 5 under the two deeds, the learned trial Court decreed the suit in the alternative for partition in preliminary form on contest upon declaration of the plaintiff's ? the share in Plot No. 316 and 2/5 the share in plot No. 48 included in the suit lands upon holding further that in the absence of specific evidence as to which of the vendors possessed which specific portion of the suit lands, a decree for recovery of khas possession would become infractuous. ( 7 ) THIS First Appeal has been filed by the contesting defendants against the said judgment and decree dated 18th September, 1982, passed by the learned Subordinate Judge, Burdwan. ( 8 ) APPEARING in support of the appeal, Mr. Kalidas Basu submitted that the learned trial Court had erred in holding that an amicable partition had been effected by the heirs of Debendra Nath Mondal in respect of his properties under a Teknama which was not before the Court, merely on the basis of the two deeds executed by the appellant No. 1 and others in favour of one Becharam Das and one Kalipada Das on 7th May, 1971 (Exhibit 4) and on 10th June, 1975 (Exhibit 4 (a) respectively. It was urged that the recitals contained in the said two deeds could not strengthen the plaintiff's case, which the plaintiff was required to prove by leading cogent evidence. Mr. Basu submitted that when the existence of any Teknama was denied by the defendants and when the purported Teknama had not been brought before the Court by the plaintiff in proof of the plaint case, the learned trial Court wrongly relied on the recitals in the said two deeds in coming to the conclusion regarding amicable partition of the properties of Debendra Nath Mondal. ( 9 ) MR. Basu then urged that the learned trial Court had also erred in rejecting the case of the defendants that Renuka Bala was an illiterate woman who could barely sign her name and was incapable of reading through any hand-written deed and that she did not have the competence to transfer lands for and on behalf of her minor children. ( 10 ) ON the question of Haradhan's competence to execute the deed dated 14th May, 1975, Mr. ( 10 ) ON the question of Haradhan's competence to execute the deed dated 14th May, 1975, Mr. Basu contended that the learned trial Court had misconstrued Exhibit A which was the school leaving certificate issued by the Headmaster of Sandalpur Tulshirani Nimna Buntadi Vidyalay on 4th June, 1982, in the name of Harinarayan Mondal son of Debendra Nath Mondal showing him to be a minor on the date of execution of the said deed. Mr. Basu submitted that the learned trial Court should have accepted the defence case that Haradhan and Harinarayan was one and that same person. ( 11 ) MR. Basu submitted that the approach of the learned trial Court was wrong, since the evidence led by the plaintiff was insufficient to prove the plaint case and the learned trial Court decreed the suit on materials which were extraneous to the suit. ( 12 ) APPEARING for the respondent No. 1/plaintiff, Mr. Bhaskar Ghose submitted that the learned trial Judge had proceeded correctly in the matter but his finding that in the absence of permission from the District Judge under section 8 (2) of the Hindu Minority and Guardianship Act, 1956, the plaintiff did not acquire any interest in the properties of the minor defendants Nos. 3, 4 and 5, was erroneous. Mr. Ghose submitted that such a transaction was not void, but violable of the instance of the minor or any person claiming under him, in view of the provisions of section 8 (3) of the aforesaid Act. ( 13 ) IN support of his submission Mr. Ghosh firstly relied on a Bench decision of this Court in Commissioner of Agricultural Income Tax, West Bengal v. Jagadish Sahoo ( AIR 1960 Cal. 546 ) where the Court was considering the law as it stood prior to the enactment of the Hindu Minority and Guardianship Act, 1956, and was of the view that a transfer by way of gift creating a charitable trust of the property of a minor by his mother in the capacity of his natural guardian is not void ab initio, but merely voidable at the option of the minor on attainment of majority. While disposing of the matter, the Division Bench had occasion to refer to section 8 of the aforesaid Act in the following terms :-" (7) In this case we are concerned with the law as it stood before the passing of the Hindu Minority and Guardianship Act, 1956. It is, however, interesting to notice the provisions of section 8 of the Hindu Minority and Guardianship Act. That section indicates clearly that in a case governed by the Act a gift or other disposal of immoral property of the minor by the natural guardian in excess of his powers is voidable at the instance of the minor or any person claiming under him and is not void. " ( 14 ) MR. Ghose then referred to a decision of the Hon'ble Supreme Court in the case of Amirtham Kudumbah v. Sarnam Kudumbah ( AIR 1991 SC 1256 ) which involved a suit brought by a purchaser from a minor within three years after he attained majority. Considering the provisions of sub-section (3) of section 8 of the Hindu Minority and Guardianship Act, 1956, the Hon'ble Supreme Court was pleased to hold that where the property of a minor was sold by his father as natural guardian without the permission of the Court as required under section 8 (2) of the aforesaid Act and the sale was not for legal necessity, a purchaser of the property from the minor within three years after the minor attained majority would be entitled to file a suit for setting aside the sale by the guardian of the minor. The Hon'ble Supreme Court went on to observe that the transfer made by the father during his son's minority was voidable at the instance of the son who was the real owner and any person purchasing such property from the natural guardian obtained only a defeasible title. ( 15 ) MR. The Hon'ble Supreme Court went on to observe that the transfer made by the father during his son's minority was voidable at the instance of the son who was the real owner and any person purchasing such property from the natural guardian obtained only a defeasible title. ( 15 ) MR. Ghose submitted that since the minors had not chosen to avoid the two sale transactions made in favour of the plaintiff of their behalf by their mother in her capacity as their natural guardian, the learned trial Court was clearly in error, in view of the provisions of section 8 (3) of the Hindu Minority and Guardianship Act, 1956, in holding that in the absence of permission under section 8 (2) of the aforesaid Act, the plaintiff had not acquired any interest in the property of the minors comprised in the suit lands. ( 16 ) MR. Ghose submitted that the learned trial Court ought to have decreed the suit to the extent of the minor's share in the suit property also. ( 17 ) MR. Ghose urged that having regard to Exhibits 4 and 4 (a) where clear references had been made to the amicable partition of the properties of Debendra Nath Mondal by Teknama, it was no longer open to the appellants to claim that there was no such partition and/or to deny the existence of the Teknama. The reference to the Tekbhag of the parties in the said deeds executed by the appellant No. 1, Biswanath Mondal, and the other appellants clearly established the plaint case and the judgment and decree of the learned trial Court was not capable of being questioned on such score. ( 18 ) MR. Ghose also urged that the evidence of Biswanath Mondal (D. W. 1) regarding a loan taken by Haradhan from United Bank of India, Kalna Branch, and the recitals in Exhibit 1 (a) demolished the case of defendants/appellants that Haradhan was a minor and was incompetent to act at the time when the deed of sale dated 14th May, 1975, (Exhibit 1 (a)) was executed. ( 19 ) MR. ( 19 ) MR. Ghose submitted that the appeal was liable to be dismissed and the decree of the learned trial Judge was required to be modified and the suit was liable to be decreed, even to the extent of the shares of the defendants No. 3, 4 and 5 in the suit properties. ( 20 ) ON consideration of the submissions made on behalf of the parties and the evidence adduced on their behalf, we see no reason to interfere with the judgment and decree of the trial Court except to the extent as argued on behalf of the plaintiff. ( 21 ) NOTWITHSTANDING the fact that the Teknama was not brought before the Court, the documents executed by the appellant No. 1, Biswanath Mondal, being Exhibits 4 and 4 (a), clearly reveal that an amicable partition by Teknama in respect of the properties of Debendra Nath Mondal had, in fact, taken place and the properties were divided amongst the co-sharers. The attempt made by Biswanath Mondal in his evidence to disown the recitals in the said two deeds is not worthy of credence since he had also executed several other deeds in respect of the properties of Debendra Nath Mondal. Biswanath Mondal had even gone to the extent of claiming to be bargadar under Renuka Bala in respect of the suit lands in Case No. 113/75 before the Bhagchas Officer, Kalna I. ( 22 ) ON the question of Haradhan's competence to execute the deed dated 14th May, 1975, no reliable evidence is forthcoming regarding his actual date of birth. D. W. 1, Biswanath Mondal, claims to have learnt of Haradhan's date of birth being 21st September, 1958, from his mother, but he was unable to give the dates of birth of his other brothers and sisters and not even his own. The School Leaving Certificate in the name of Harinarayan Mondal has not been proved to be that of Haradhan Mondal, although, it was suggested on behalf of the appellants that Harinarayan was, in fact, Haradhan's nick-name. Such a case was beyond the pleadings in the written statement and we are inclined to agree with the learned trial Court that the materials on record were not sufficient to prove that Haradhan and Harinarayan was one and the same person, or that the plea of Haradhan's minority, as set up by the defence, was proved. Such a case was beyond the pleadings in the written statement and we are inclined to agree with the learned trial Court that the materials on record were not sufficient to prove that Haradhan and Harinarayan was one and the same person, or that the plea of Haradhan's minority, as set up by the defence, was proved. ( 23 ) FROM the evidence of D. W. 1, Biswanath Mondal, it appears that Haradhan was literate. He not only executed the deed of sale dated 14th May, 1975, but he also identified his mother Renuka Bala's signature thereupon. P. W. 2, Nirmal Chadra Chatterjee, who admittedly was Renuka Bala's Dharma Baba, was also an attesting witness. In the absence of any proper and/or convincing evidence to the contrary, the recitals in the said deed must be accepted to be correct. We are in agreement with the learned trial Court on such score. ( 24 ) THE case of the appellants must, therefore, fail and is dismissed accordingly. ( 25 ) HOWEVER, we are unable to accept the finding of the learned trial Court that in the absence of permission from the District Judge under section 8 (2) of the Hindu Minority and Guardinaship Act, 1956, the plaintiff had not acquired any right in the property of the minor defendants No. 3, 4 and 5. The learned Court below did not possibly have occasion to consider the provisions of section 8 (3) of the said Act while arriving at such finding for the sake of convenience. The relevant portions of section 8 of the aforesaid Act are reproduced hereinbelow :-"8. Powers of natural guardian - The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realisations, protection or benefit of the minor's estate, but the guardian can in no case bind the minor by a personal covenant. (2) The natural guardian shall not, without the previous permission of the Court - (a)mortgage or charge or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor, or (b)lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority. (3) Any disposal of immovable property by a natural guardian in contravention of sub-section (1) or sub-section (2) is voidable at the instance of the minor or any person claiming under him. (4) No Court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor. (5)????????????????????????? (6)?????????????????????????" ( 26 ) AS was observed by this Court in Jagadish Chandra Sahoo's case (supra), sub-section (3) of section 8 of the Hindu Minority, and Guardianship Act, 1956, clearly indicates that in a case governed by the said Act, a gift or other disposal of immovable property of the minor by the natural guardian in excess of his powers is voidable at the instance of the minor or any person claiming under him and is not void ab initio. The same view was also expressed by the Hon'ble Supreme Court in Amirtham Kudumbah's case (supra ). ( 27 ) AS has been submitted by Mr. Ghose on behalf of the respondent No. 1/plaintiff, the defendants Nos. 3, 4 and 5 not having elected to avoid the transactions caused by the two sale deeds dated 8th April, 1974 and 14th May, 1975, the learned Court below erred in holding that the plaintiff had not acquired any interest in the property of the said defendants by virtue of the said two deeds in the absence of permission from the District Judge under section 8 (2) of the aforesaid Act. ( 28 ) HAVING regard to the provisions of Order 41 Rules 22 and 33 of the Code of Civil Procedure, as explained by the Hon'ble Supreme Court in the case of Koksingh v. Smt. Deoka Bai ( AIR 1976 SC 634 ), the finding of the learned Court below on such score is set aside and it is declared that along with the 2/5 the share of Renuka Bala and Haradhan Mondal the respondent No. 1/plaintiff also acquired right, title and interest of the defendants Nos. 3,4 and 5/the appellants No. 3, 4, and 5 herein, in plot No. 48 of mouza - Sandalpur, P. S. Kalna, District - Burdwan. ( 29 ) THE decree of the learned Court below is modified to the aforesaid extent. 3,4 and 5/the appellants No. 3, 4, and 5 herein, in plot No. 48 of mouza - Sandalpur, P. S. Kalna, District - Burdwan. ( 29 ) THE decree of the learned Court below is modified to the aforesaid extent. The plaintiff will accordingly be entitled to recover mesne profits for the entire plot No. 48 involved in the suit, upon payment of appropriate Court Fees in respect thereof. The appeal is disposed of accordingly. Let the decree be drawn up expeditiously. Let the Lower Court Records be sent down to the Court below by Special messenger at the cost of the Respondent No. 1. If urgent xerox certified copies of this judgment and decree are applied for, the same are to be supplied expeditiously, subject to compliance with all the required formalities. G. C. De, - I agree. Appeal disposed of.