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2014 DIGILAW 63 (CAL)

Fatik Chandra Mal v. Manindra Nath Roy

2014-01-28

ASIM KUMAR RAY

body2014
JUDGMENT Asim Kumar Ray, J. Being aggrieved by and dissatisfied with the judgment and decree dated 27th March, 1989 and 3rd April, 1989 respectively passed by learned Additional District Judge, 2nd Court, Alipore in Title Appeal No. 488 of 1987 reversing the judgment and decree dated 16th March, 1987 and 28th March, 1987 respectively passed in Title Suit No. 373 of 1981 by learned Munsif, 6th Court, Alipore this appeal has been preferred. 2. The plaintiff's case before the lower Court was that he purchased the suit property from one Nirmala Bala Deuti by a registered deed dated 9th February, 1970 and became the owner of the same. Nirmala Bala Deuti, got that property by way of purchase from Smt. Kadambini Nath by a registered sale deed dated 23rd May, 1951. Plaintiff claimed that he got possession of the suit property after purchase. His further case was that Smt. Nirmala Bala Deuti constructed a two roomed house in the northern portion of the land purchased by him which she let out to one Satish Dasgupta on a monthly rental of L 24 as the plaintiff was in Government service when he purchased the suit property, and as his job was transferable, he appointed the defendant as a caretaker of property described in 'A' schedule to the plaint. He also allowed the defendant to reside in the 'B' schedule property as a licensee by constructing a hut. It was agreed between them that whenever necessary the defendant would vacate the 'B' schedule property on proper notice. The plaintiff was in need of the suit property for his use and occupation, he asked the defendant to vacate the 'B' schedule property but in vain. So he instituted the suit. 3. Defendant contested the suit by filing a written statement denying and disputing all the material averments set forth in the plaint and contended, inter alia, that the plaintiff never got possession of the suit property. He categorically denied that he was a licensee in respect of the 'B' schedule property under the plaintiff. His positive case was that he is residing in the suit property since his birth and that the suit property belonged to his father. He and his other co-sharers inherited the same on the death of his father. He categorically denied that he was a licensee in respect of the 'B' schedule property under the plaintiff. His positive case was that he is residing in the suit property since his birth and that the suit property belonged to his father. He and his other co-sharers inherited the same on the death of his father. His further case was that the sale deed executed in favour of Kadambini Nath and Nirmala Deuti had no value in the eye of law as they did not get possession of the suit property. According to him, the record of right relating to the suit property would bear testimony to his contention in this regard. He categorically denied that Nirmala Bala Deuti ever constructed any structure on the suit property. He let out his ancestral room to Satish Dasgupta and realised rent from him. He constructed a hut and has been residing there. He claimed ownership of the suit property. 4. Learned Munsif passed the judgment and decree with a finding that plaintiff failed to substantiate his case with a specific finding that sale deed by which the plaintiff claimed title and possession of the suit property was nothing but a paper transaction. The learned Munsif thus dismissed the suit. 5. The plaintiff being appellant preferred title appeal No. 488 of 1987 challenging the judgment and decree passed by the learned Munsif. The first appellate Court, learned Additional District Judge, 2nd Court, Alipore passed the judgment and decree under challenge in the second appeal by reversing the judgment and decree of learned Munsif. Taking the following specific grounds amongst other appeal was filed: I. For that the plaintiff failed to prove by producing documentary evidence that Sishubala, the mother of the Defendant sold the share of the defendant during his minority after obtaining the permission from the learned District Judge concerned. II. For that the learned Appellate Court failed to appreciate the legal effect of transfer of minors' property without the permission of the learned District Judge and the continuance of possession by the concerned minor in the land so transferred having the effect of repudiation of such sale. III. For that the recitals in the purported agreement being exhibit 9 has no relevance and cannot be used against the defendant as the said agreement was not executed by the defendant. IV. III. For that the recitals in the purported agreement being exhibit 9 has no relevance and cannot be used against the defendant as the said agreement was not executed by the defendant. IV. For that the learned Appellate Court failed to consider the most relevant fact in the proper perspective that the plaintiff has been residing in a tenanted house adjacent to the suit property and allowed the defendant, a man of desperate character as alleged by him, to occupy the suit property as a caretaker and a licensee. V. For that the learned Appellate Court erred in deciding the title of the parties to the suit in the suit land on the basis of the deposition given by the mother of the defendant and plaintiff in the Criminal Proceeding. VI. For that the finding that there is no specific case of acquisition of title by way of adverse possession is perverse being contrary to the pleadings and the evidence on record. 6. The appeal is taken up for hearing on the substantial questions of law:- "Whether the lower appellate Court substantially erred in law by reversing the judgment and decree of learned trial Court by holding that the sale deed executed by the mother of the minor without obtaining necessary permission from the concerned District Judge or without any proof of legal necessity was valid." 7. Mr. Pushpendu Bikash Sahu, learned advocate appearing for the appellant has contended that the property of the minor may be sold by his guardian on legal necessity or for the benefit of the minor. But in the instant case there is nothing on record either in pleading or in evidence that there was legal necessity of the minor and to meet that necessity the suit property was sold. Sale deed by which the suit property was sold has a recital that the property was sold to purchase other property. Mr. Shau has contended that the said ground is not meant for legal necessity of the minor. He has contended further that Sishu Bala Nath mother of defendant did not take permission from the District Judge prior to sale of the suit property. The permission of the learned District Judge was necessary as the property belonged to minor. Mr. Shau has contended that the said ground is not meant for legal necessity of the minor. He has contended further that Sishu Bala Nath mother of defendant did not take permission from the District Judge prior to sale of the suit property. The permission of the learned District Judge was necessary as the property belonged to minor. It is his further contention that after attaining majority, the ward can file a suit within prescribed period to set aside such transfer of property by his guardian vide Article 60 of the Limitation Act, 1963. But in this case the minor was in possession of the alienated property. It is not necessary for the minor to resort to a Court of law and obtain a formal declaration that the alienation is bad and be set aside. He can avoid it after attaining majority. The defendant after attaining majority avoided the sale remaining in possession of the property and the possession has been proved by oral evidence and also by the record of rights. Mr. Sahu has contended further that mere attestation does not fix an attesting witness with knowledge of content of document. 8. He took me to the pleading, evidence on record, Section 525 of Mulla's Hindu Law (2nd edition), Section 396 of Hindu Law by Mayne (13th edition), Article 60 of the Limitation Act (8th Edn.) and Section 17 of the Evidence Act. He has relied on the following decisions : 1. AIR 1960 Cal 446 2. 2011(12) SCC page 220 3. 1993 (2) SCC page 402 4. AIR 1972 Kerala Page 71 5. AIR 1983 Cal page 76 6. AIR 1970 Andhra Pradesh page 440 7. AIR 1980 Madras page 216 8. AIR 1966 SC page 735 and 9. AIR 1981 P&H page 397 9. Mr. M.K. Das, learned advocate appearing for the respondent has contended that there was no case of the defendant that the property was of minor and it was sold illegally. The specific case of the defendant was that he is the owner of the suit property. It was never sold. The question of minor's property sprang up before the learned first appellate Court. He has contended that the original transaction took place in the year 1950 when the Hindu Minority and Guardianship Act, 1956 was not in force. The specific case of the defendant was that he is the owner of the suit property. It was never sold. The question of minor's property sprang up before the learned first appellate Court. He has contended that the original transaction took place in the year 1950 when the Hindu Minority and Guardianship Act, 1956 was not in force. Section 8 of the said Act so far as the permission from the District Judge for transfer of a property by and only guardian of minors is concerned is not attracted in the instant case. The instant case is governed by the provisions of the Guardians and Wards Act, 1890. So permission was not required. It has been proved that Satish Das Gupta was a tenant under plaintiff and on his death his wife Arati Das Gupta became the tenant under him. The plaintiff brought Money Suit against Arati Das Gupta and obtained arrear rent through execution. Sishubala, mother of defendant deposed in that money suit stating that she sold the property to plaintiff and plaintiff is the owner. Her oral evidence in T.S. No. 373 of 1981 in respect of the sale of the suit property is inadmissible in evidence as it is against the recital made in the registered deed of sale saying that consideration had passed at the time of execution of the said deed. Sections 17 to 21 of the Evidence Act as well as Section 90, 91 and 92 of the said act are to be considered so far as the admission of Fatik/defendant/appellant is concerned. Fatik has admitted in his evidence in the judicial proceeding being Ext. 8 to the instant suit that Nirmala sold the suit property to the plaintiff and he was an attesting witness to the said sale. He had the knowledge about the content of the document. The judgment reported in AIR 1982 Cal and AIR 1977 SC 1712 should be considered in the light of the judgment reported in AIR 1977 SC 409 and AIR 1977 SC 1724 . The admission of Fatik and Sishubala cannot be negatived by simply denying the same. 10. Mr. He had the knowledge about the content of the document. The judgment reported in AIR 1982 Cal and AIR 1977 SC 1712 should be considered in the light of the judgment reported in AIR 1977 SC 409 and AIR 1977 SC 1724 . The admission of Fatik and Sishubala cannot be negatived by simply denying the same. 10. Mr. Das has contended that in the decisions reported in 2011 (12) SCC 220 , AIR 1960 Cal 446 , AIR 1983 Cal 1976, 44 Indian Appeal 147, 23 CLJ 432, AIR 1972 Kerala 71 and AIR 1939 Patna 370, the question of legal necessity or for minors' benefit have been considered in connection with the sale by a de facto guardian and that too of a separate property of the minor and in none of those cases the question was of a sale by an admitted natural guardian in respect of an undivided share of the joint property on which along with others the share of natural guardian herself was also sold. So those judgments cannot apply in this case. The decision reported in 1993 (2) SCC 402 is in respect of a case under Hindu Minority and Guardianship Act, 1956 which is not applicable in the instant case. 11. In the instant case the property was sold by natural guardian of an undivided share in the property where the share of the natural guardian herself was also sold which is sufficient indication of the fact that the natural guardian was acting bona fide for the benefit of the entire undivided family including herself and the minors'. Such a situation has been recognised both under the Guardians and Wards Act, 1890 as well as the Minority and Guardianship Act,1956 as will appear from the decision reported in 36 CWN 769 and (1996) 8 SCC 54 . He has relied on the following decisions : 1. AIR 1977 SC 409 2. AIR 1977 SC 1724 3. AIR 1934 Patna 93 4. (2011) 12 SCC 220 5. AIR 1930 PC 57 (1) 6. (2000) 2 SCC 223 7. AIR 1985 Cal.66 8. AIR 1983 P & H 114 9. AIR 1995 AP 105 10. AIR 2003 SC 4319 11. 36 CWN 769 and 12. (1996) 8 SCC 54 12. AIR 1977 SC 1724 3. AIR 1934 Patna 93 4. (2011) 12 SCC 220 5. AIR 1930 PC 57 (1) 6. (2000) 2 SCC 223 7. AIR 1985 Cal.66 8. AIR 1983 P & H 114 9. AIR 1995 AP 105 10. AIR 2003 SC 4319 11. 36 CWN 769 and 12. (1996) 8 SCC 54 12. The deed executed in the year 1950 by Sannyashi Chandra Mal, the uncle of defendant/appellant and Smt. Sishubala for self as well as on behalf of her two minor sons Bonomali and Fatik, the present defendant/appellant has been questioned through argument of the learned advocate of the appellant. It has been contended that the property of minor was sold by mother, natural guardian without obtaining permission from the learned District Judge and for without legal necessity of the minor. Admittedly the deed was executed in the year 1950. Section 8 of the Hindu Minority and Guardianship Act 1956 so far as the permission from the District Judge for transfer of a property by natural guardian is concerned is not at all attracted in the instant case. The case is governed by the provisions of the Guardians and Wards Act, 1890 wherein permission of the learned District Judge was not required for a natural guardian save and except in a case of guardian appointed by a will or other instrument or wards being appointed for declaration by the Court to be a guardian of the property of a ward as contained in Section 29 of the said act of 1890. Such was not a case of natural guardian in the year 1950. 13. In Kali Charan Naskar v. Sudhir Chandra Naskar, reported in AIR 1985 Cal 66 , the Hon'ble Court held : "It is also the fact that such transfer took place before coming into force of the Hindu Minority and Guardianship Act, 1956. There is the concurrent finding of fact of both the Courts below that Bamanmoni sold the undivided ?th share of minor Kalicharan without legal necessity and that the minor Kalicharan was in the care of his another distant aunt Patalmoni who brought up Kalicharan. There is the concurrent finding of fact of both the Courts below that Bamanmoni sold the undivided ?th share of minor Kalicharan without legal necessity and that the minor Kalicharan was in the care of his another distant aunt Patalmoni who brought up Kalicharan. As the transfer of the minor's property by the alleged guardian in the present case was made in 1951 prior to the coming into force of the Hindu Minority and Guardianship Act, 1956, the Hindu law prior to the said Act and the Guardians and Wards Act,1890 would govern the present case." 14. In the case of Surta Singh v. Pritam Singh, reported in AIR 1983 Punjab and Haryana 114 (Full Bench), the Hon'ble Court held : "It deserves high lighting that before the enactment of the 1956 Act the natural guardian of a Hindu minor was clearly entitled to transfer the immovable property of the minor for legal necessity or for his patent benefit. If these conditions were satisfied no taint of invalidity attached to such a transfer and no permission of the Court was necessary." 15. It is an admitted fact that the deed of the year 1950 has a clear recitals that the property covered in the deed was transferred by the uncle and mother of the defendant/appellant for the purpose of purchasing other property. Moreover, Sishubala, mother of the defendant/appellant has deposed in a money suit instituted by the plaintiff/respondent against the heirs of Satish Das Gupta, the tenant wherein she has categorically stated that she sold the property and the plaintiff was the owner. In similar way at the time of deposition in a proceeding Fatik, the defendant himself has stated that he was an attesting witness to the deed of the year 1970. 16. In the case of Union of India v. Moksh Builders and Financiers Ltd. and Ors., reported in AIR 1977 SC 409 , the Hon'ble Apex Court held: "An admission by a party is substantive evidence of the fact admitted, and admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. 17. 17. In the case of Thiru John V. Subramhamanyan v. The Returning Officer and others, reported in AIR 1977 SC 1724 , the Hon'ble Apex Court held : "It is well settled that a party's admission as defined in Sections 17 to 20 fulfilling the requirements of Section 21 Evidence Act is substantive evidence proprio vigore. An admission, if clearly and unequivocally made, is the best evidence against the party making it and though not conclusive, shifts the onus on to the maker on the principle that "what a party himself admits to be true may reasonably be presumed to be so and until the presumption is rebutted the fact admitted must be taken to be established." 18. In written statement the defendant speaks out a specific case that he is the owner of the suit property. It was never sold. The sale deed of 1950 stands contrary to the defendant's case. The deed displays that the suit property originally belonged to Sannyashi, Sishubala, Banomali and defendant. Argument advanced by Mr. Shau regarding avoidance of alienation of minor's property by the minor after attaining majority is nowhere in the memo of appeal. The same was neither in pleading nor even contended before the learned Courts below from the side of the defendant. The written notes of argument submitted by Mr. Shau does not cover the specific grounds which I noted earlier and the substantial questions of law which was formulated for disposal of this appeal. 19. In the case of Rangammal v. Kuppuswami and another, reported in (2011) 12 SCC 220 , the Hon'ble Supreme Court held : "37. It is further well settled that a suit has to be tried on the basis of the pleadings of the contesting parties which is filed in the suit before the trial court in the form of plaint and written statement and the nucleus of the case of the plaintiff and the contesting case of the defendant in the form of issues emerges out of that. This basic principle, seems to have been missed not only by the trial court in this case but consistently by the first appellate court which has been compounded by the High Court. 38. This basic principle, seems to have been missed not only by the trial court in this case but consistently by the first appellate court which has been compounded by the High Court. 38. Thus, we are of the view, that the whole case out of which this appeal arises had been practically made a mess by missing the basic principle that the suit should be decided on the basis of the pleading of the contesting parties after which Section 101 of the Evidence Act would come into play in order to determine on whom the burden falls for proving the issues which have been determined." 20. The suit property is measuring 37 decimals. There was a prayer for declaration in respect of 35 decimals of the suit property and prayer for recovery of possession in respect of 2 decimals of the property. The deed of the year 1950 which is the bone of contention was executed by Sannyashi Chandra Mal, the uncle of defendant and Smt. Sishubala Dasi for self as well as on behalf of her two the then minor sons, namely, Bonomali and Fatik, the present defendant/appellant. Sannyashi Chandra Mal had one-third share and the rest two-third share belonged to Sishubala, Bonomali and Fatik. Fatik had therefore two-ninth share of his own. He cannot claim the ownership of the entire suit property as his uncle, mother and brother were co-sharers. The decisions cited by Mr. Sahu are distinguishable as rightly contended by Mr. Das. 21. Considering this background, I do not find any reasons to interfere into the judgment and decree passed by the first Appellate Court reversing the judgment and decree passed by the learned Trial Court. In the result, the appeal stands dismissed.