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2006 DIGILAW 461 (CAL)

BINAPANI DEY v. SANKAR CHOWDHURY

2006-07-28

SUBHRO KAMAL MUKHERJEE

body2006
Subhro Kamal Mukherjee, JJ. ( 1 ) THIS is a revisional application under Article 227 of the Constitution of india against judgment and order dated february 28,2005 passed by the learned civil Judge (Senior Division) at Sealdah, District: South 24-Parganas in miscellaneous Appeal No. 66 of 2004 affirming Order No. 18 dated October 4. 2004 passed by the learned Civil Judge (Junior Division), First Court at Sealdah, district: South 24-Parganas in Title Suit No. 101 of 2004. ( 2 ) BOTH the Courts below passed temporary order of injunction directing the parties to maintain status quo in relation to the suit property till the disposal of the suit. ( 3 ) THE facts relevant for the disposal of this revisional application are as under: - (a) Admittedly, the suit property belonged to Hussain Parsee alias chowdhury. Hussain Parsee died intestate on December 15, 1950 leaving behind him his son, Hiralal Chowdhury, his widow, Somaria Chowdhury and his daughter Kamala Chowdhury. On his death his said heirs and legal representatives inherited the suit property. (b) The said Hiralal Chowdhury died intestate on November 30, 1975 leaving behind him his four sons, one daughter and his widow, mangala Chowdhury. (c) The said Somaria Chowdhury, the said Kamala Chowdhury and the said Mangala Chowdhury executed a deed of sale dated november 26,1979 in favour of Binapani Dey, the defendant No. 1 in this suit, conveying the suit property to her Mangala Chowdhury for self and as the mother and natural guardian of the minor four sons and the minor daughter of Hiralal Chowdhury executed the said deed of sale. (d) The said vendors delivered the possession of the suit property in favour of Binapani Dey. Binapani Dey, after getting possession of the suit property, collected rents from the tenants, paid Municipal rates and taxes and even instituted suit against tenant and obtained decree in such suit. (e) The four minor sons of Hiralal Chowdhury attained majority between 1986 and 1993. The eldest son, Sankar, attained majority in 1986, second son, Kartick, attained majority in 1998 and third son, biswanath, attained majority in 1990 and the youngest son, Madan, attained majority in 1993. (e) The four minor sons of Hiralal Chowdhury attained majority between 1986 and 1993. The eldest son, Sankar, attained majority in 1986, second son, Kartick, attained majority in 1998 and third son, biswanath, attained majority in 1990 and the youngest son, Madan, attained majority in 1993. (f) The said sons of Hiralal Chowdhury instituted the present suit, inter alia, for declaration that the deed of conveyance executed in favour of Binapani Dey was invalid and not binding upon the said plaintiff's and the same was liable to be cancelled; for, further, declaration of their right, title and interest in the suit property; mandatory injunction directing the principal defendants to deliver peaceful possession of the suit property in favour of the said plaintiff's. In the plaint it was alleged that in sometime in December, 2003 the said plaintiff's came to know that they were the owners of the property and, immediately, thereafter, they went to the suit property and found that it was under the control of defendant No. 2, Jatin dey, who has been the husband of the said Binapani Dey. (g) In the said suit the said Binapani and her husband, Jatin, have been impleaded as principal defendants while Mangala Chowdhury and shibani Chowdhury, that is, the widow and the daughter of Hiralal chowdhury respectively have been impleaded as proforma defendants. (h) In connection with the said suit the said plaintiffs filed an application for temporary injunction. The application for injunction was contested by the principal defendants. (i) The learned Trial Judge by the Order No. 18 dated October 4,2004 disposed of the application for temporary injunction and directed the parties to maintain status quo till the disposal of the suit. The learned judge observed that in the suit the question of validity and genuineness of the said deed executed in favour of Binapani Dey has been an issue and as the deed was executed by illiterate ladies putting their left thumb impressions on the said deed, such issue has to be decided in details at the time of trial. (j) The principal defendants preferred Miscellaneous Appeal No. 66 of 2004, which came up for hearing before the learned Civil Judge (Senior division) at Sealdah. By the judgment and order dated February 28, 2005 the learned judge in the lower appellate Court dismissed the appeal and affirmed the order dated October 4, 2004 passed by the learned Trial Judge. (j) The principal defendants preferred Miscellaneous Appeal No. 66 of 2004, which came up for hearing before the learned Civil Judge (Senior division) at Sealdah. By the judgment and order dated February 28, 2005 the learned judge in the lower appellate Court dismissed the appeal and affirmed the order dated October 4, 2004 passed by the learned Trial Judge. The learned Judge in the lower appellate Court held that as all the executants of the disputed deed were women and as there was no averment in the said deed that the deed was read over and explained to them, the temporary order of injunction should continue till the disposal of the suit. (k) Being aggrieved the principal defendants have come up with this revisional application. ( 4 ) ASSUMING that the execution of the deeds were illiterate women, but the suit has not been instituted by the said alleged illiterate women. The suit has been instituted by the four sons of Hiralal Chowdhury, inter alia, contending that their mother and natural guardian transferred the property, when they were minors, without any legal necessity and, therefore, the deed has not been binding on them. Admittedly, the registered document was executed on November 26, 1979 and the present suit has been instituted in the year 2004. ( 5 ) UNDER Article 60 of the Limitation Act, 1963 the limitation to file a suit by the minor to set aside a transfer of property made by the guardian of the minor is three years from the date when the minor attains majority. ( 6 ) ADMITTEDLY, even the youngest son of Hiralal Chowdhury attained majority in the year 1993. Therefore, prima facie, the suit is barred by limitation. ( 7 ) BHATTACHARYA, J. in Adhir Kumar Paul v. Asit Baran Mondal, reported in 1999 (2) CLJ 90 observes that the law is now settled that if a natural guardian transfers the share of the minor without legal necessity or without taking leave of the Court, such transaction is not void ab initio, but merely a voidable one, which can be avoided by the minors after attaining majority. Such deed can be avoided by the minors only by filing a suit within three years after attaining majority and not by the mere conduct. Such deed can be avoided by the minors only by filing a suit within three years after attaining majority and not by the mere conduct. ( 8 ) INJUNCTION is an equitable remedy, which is granted at the discretion of the Court and not as matter of course. Law is well settled that granting of temporary injunction is covered by three well established principles: (a) if the petitioner has made out a prima facie case; (b) if the balance of convenience is in his favour; (c) if the petitioner will suffer irreparable loss and injury if an order of injunction is not granted. There must be a fair and substantial question to be decided between the parties. ( 9 ) IN my view, the suit is, prima facie, barred by limitation. After about 25 years and that too when the bona fide buyer was put into possession and as she purchased the property by a registered deed of sale executed by the mother of the plaintiff's for self and on behalf of her minor children, prima facie the plaintiff's could not have been granted any temporary order of injunction. ( 10 ) THE revisional jurisdiction of the High Court can always be exercised where the subordinate Courts are found to have acted without jurisdiction or in excess of jurisdiction and for the purpose of keeping the subordinate Courts within bounds. In this case Courts below have committed serious error of law and as a consequence thereof exercised their jurisdiction illegally and with material irregularity. If this Court does not interfere with the orders impugned, a grave injustice remains uncorrected. This is a case where the Courts below have committed mistake apparent on the fact of the records. ( 11 ) THEREFORE, the orders impugned are set aside. The application for temporary injunction filed by the plaintiffs in this suit is rejected. ( 12 ) HOWEVER, by way of abundant caution. I make it clear that I have not gone into the merits of the claim and the counter claim of the parties finally and all the issues are kept open and they are to be decided by the learned Trial judge on merits and in accordance with law. ( 13 ) HOWEVER, any action taken by the parties during the pendency of this suit shall abide by the result of this suit. ( 13 ) HOWEVER, any action taken by the parties during the pendency of this suit shall abide by the result of this suit. ( 14 ) THE learned Trial Judge is requested to expedite the hearing of the suit as far as possible. ( 15 ) THE revisional application is, thus, allowed with the aforesaid directions. I make no order as to costs.