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2019 DIGILAW 594 (CAL)

Naso Bewa v. Dukhu Mandal

2019-05-14

SAHIDULLAH MUNSHI

body2019
JUDGMENT : 1. This second appeal at the instance of the plaintiff is against the judgment and decree dated April 29, 2009 passed by the learned Additional District Judge, 3rd Court, Malda in O.C. Appeal No. 27 of 2007 affirming those dated 31st July, 2007 passed by the learned Civil Judge (Junior Division), 1st Court, Malda in O.C. Suit No.4 of 2000. 2. The plaintiff filed a suit for declaration of title in respect of land comprised in plot no. 989 more fully described in the plaint schedule together with a mango tree standing thereon and for permanent injunction. According to the plaint case plaintiff no.1 purchased the suit plot from one Abhay Charan under a registered deed being no.6800 dated 21.4.1986 and while in possession he constructed a house together with a boundary wall. The plaintiff no.1 subsequently sold out 0.02 decimals of land to his daughter-in-law by a registered deed. According to the plaint case, both the plaintiffs were in possession of the suit property and there is a mango tree on the northern portion of the property along the boundary wall and the plaintiffs are in possession and enjoyment thereof. It has been alleged that the defendants were trying to cut down the said tree illegally and were threatening the plaintiff of dispossession in respect of the said tree. Defendants contested the suit by filing written statement jointly and they have categorically denied the material averments in the plaint. The defendants stated that there was no cause of action for the suit and it was not maintainable. According to the defendants suit plot is a vested property and there are other persons in possession of the suit plot and they are necessary parties in the suit. Defendants' specific case is that the plaintiffs have no legal title in the suit property and the suit is liable to be dismissed. The learned trial Court framed five issues and answered each of the said issues. From the discussion in the judgment of the trial Court it appears that the defendants were contending that half of the tree is on their adjoining plot being plot no.988 and half of the tree belongs to the plaintiff. No evidence was adduced on behalf of the plaintiffs to show that the plaintiffs are the exclusive owner of the said tree. No evidence was adduced on behalf of the plaintiffs to show that the plaintiffs are the exclusive owner of the said tree. The highest the plaintiff could prove on evidence that the mango tree is near the house of the plaintiff. A Local Investigation Commission was held in respect of the suit property and the learned Commissioner was examined as PW4, who has stated on oath that the said tree is situated on the border in between plot no.989 (suit plot) and 988 (the adjoining plot of the defendants). The plaintiffs have 0.04 acre in plot no.989 and defendants have property in plot no. 988. The evidence as led by the plaintiffs, the learned trial Court concluded on the basis thereof that the disputed tree is standing in between the two plots. According to the learned trial Court since Exbt.3 by which Abhay Charan Das sold the property to plaintiff no.1 did not mention the boundaries of the lands sold, it is not clear as to which portion of the suit plot no.989 is in possession of the plaintiffs. It is undisputed fact that the suit property originally belonged to one Santosh Mondal from whom it was purchased by Abhay Charan Das who is the vendor of plaintiff no.1. 3. Learned Courts below held that Santosh was minor and his property was sold by his brother Sirish (Sisir) to Abhay by deed dated 26.10.1983 (Exbt.1). Abhay sold the property to plaintiff no.1 by deed dated 21.04.1986 (Exbt.3). Therefore, the learned Courts below held that since no permission from the learned District Judge was obtained for sale of minor's property the deed dated 26.10.1983 (Exbt.1) was void and subsequent transfer by Abhay under registered deed dated 21.04.1986 (Exbt.3) did not confer any title. The learned trial Court dismissed the suit holding that the plaintiff could not prove title as also possession over the suit property, therefore, the plaintiff was not entitled to get any declaration and injunction. The appeal at the instance of the plaintiff also went against him. The learned Appellate Court below held the same view as the trial Court held. The learned trial Court dismissed the suit holding that the plaintiff could not prove title as also possession over the suit property, therefore, the plaintiff was not entitled to get any declaration and injunction. The appeal at the instance of the plaintiff also went against him. The learned Appellate Court below held the same view as the trial Court held. The learned Appellate Court held that although the Local Investigation Commissioner held a local investigation and although, his report was not admitted into evidence but the said Commissioner (PW4) was examined and in his evidence he stated that the disputed mango tree is situated on the boundary line of plot nos. 989 and 988. Learned Appellate Court below held that local investigation report though not accepted it being a part of the record, which clearly showed that the Commissioner has adopted a scientific method of investigation and concluded ultimately that the mango tree is situated on the boundary of the two plots namely plot nos. 989 and 988. According to the learned Appellate Court below the report of the Commissioner does not support the plaintiffs' case that the plaintiffs are in exclusive possession of the mango tree described in the suit property. Learned Appellate Court below observed that there was nothing wrong on the part of the trial Court to hold that the plaintiffs failed to prove exclusive possession of the scheduled suit property and the mango tree and therefore, rightly dismissed the suit. Such a decision of the Courts below is under challenge before this Court. The specific question of law which were framed at the time of admission of the Second Appeal are: i. "Whether the learned Judges in the Courts below substantially erred in law in negating the claim of title on behalf of the plaintiff when admittedly by the erstwhile minor brother did not challenge the execution of deed by his elder brother representing himself to the guardian of the minor? ii. Whether the learned Judges in the Courts below substantially erred in law in construing the report of the learned Investigation Commissioner in so far as the location of the mango tree is concerned?" 4. ii. Whether the learned Judges in the Courts below substantially erred in law in construing the report of the learned Investigation Commissioner in so far as the location of the mango tree is concerned?" 4. So far the first substantial question of law is concerned since it is an undisputed fact that the property belonged to minor and according to Hindu Minority and Guardianship Act, 1956 without permission of the learned District Judge minor's property could not have been transferred by his brother. In my view the finding of the learned Courts below that initial deed of conveyance dated 26.10.1983 (Exbt.1) was a void deed and the vendor of the plaintiff no.1 would have conferred no valid title by deed dated 21.04.1986 (Exbt.3). It is argued by the learned counsel appearing for the appellant that the minor never challenged the said deed and therefore, the learned Courts below ought not to have dismissed the suit. In my view, a void action cannot be regularized by any stretch of imagination. Learned counsel for the appellant submitted that when the minor's property is transferred without due process of law the transfer is voidable. Section 6 of the Hindu Minority and Guardianship Act, 1956 gives the particulars of natural guardians of a Hindu minor: i. In case of a boy or an un-married girl- the father and after him the mother; ii. In case of illegitimate boy or an illegitimate un-married girl- the mother and after her the father; iii. In case a married girl- the husband. 5. Natural guardians are vested with certain rights regarding transfer of minor's property as mentioned in Section 8 of the said Act. Section 8 Sub- section (3) says while disposing of immovable property of a minor by the natural guardian, any contravention of Sub-section (1) of Sub-section(2) is voidable at the instance of the minor or any person claiming under him. Question arises whether any transfer if made by a person other than the natural guardian whether is voidable or a void transaction. In the present case the brother who transferred the property on behalf of the minor without permission of the Court is unauthorized transfer. Such an unauthorized transfer is voidable if it is done at the instance of the natural guardian but in other cases the transaction if so made should be considered a void one because the Act does not make it voidable. Such an unauthorized transfer is voidable if it is done at the instance of the natural guardian but in other cases the transaction if so made should be considered a void one because the Act does not make it voidable. The brother who has transferred the property is in the position of a de facto guardian of a Hindu minor which is materially different from that of natural guardian or a guardian appointed by the Court. Therefore, this transfer on behalf of the minor is an unauthorized transfer and is void. The argument advanced by the learned advocate for the appellant taking advantage of Section 8 of the Hindu Minority and Guardianship Act, 1956 is without any basis and is not applicable in the present case. Therefore, in my opinion, I do not find any illegality on the part of the Courts below in holding that the transaction at the first instance in 1983 was a void transaction. 6. The decisions cited by the appellants in this regard in the case of Hari Satya Banerjee & Ors. - Vs. - Mahadev Banerjee & Ors. reported in AIR 1983 Cal. 76 and in the case of Dhanasekaran - Vs. - Manoranjithammal & Ors. reported in AIR 1992 Madras 214, do not help the appellant. 7. In answering the substantial questions of law this Court cannot ignore the provision of Section 11 of the Hindu Minority and Guardianship Act, 1956. Section 11 is set out below: "11. De facto guardian not to deal with minor's property.--After the commencement of this Act, no person shall be entitled to dispose of, or deal with, the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor." 8. According to the intent of the legislature after commencement of the Hindu Minority and Guardianship Act, 1956 no person is entitled to dispose of or deal with the property of a Hindu minor merely on the ground of his/her being the de facto guardian representing the minor. Alienation done by a de facto guardian is void and the alienee is in the possession of a trespasser who has no right in the property. Alienation done by a de facto guardian is void and the alienee is in the possession of a trespasser who has no right in the property. The object of Section 11 is to prevent any de facto guardian from dealing with the property of a minor and if any other interpretation is made the same will frustrate the object of Section 11. The argument made on behalf of the appellant that the transfer is a voidable transfer and in absence of any challenge of minor upon attaining majority cannot be appreciated to hold that the findings arrived at by the learned Courts below should be held to be wrong. As the alienation made by the de facto guardian is invalid and not binding on the minor, alienee cannot justify it on the ground that the minor subsequently did not challenge the transfer which is void ab initio and does not get regularized for any eventuality in future. The brother who transferred the property is also not a natural guardian and as a result question whether such sale was made under duress or for legal necessity of the minor, can also not be considered. The trial Court as well as the Appellate Court, therefore, have committed no illegality in holding that the plaintiff could not prove his title and possession over the suit property. Although, Courts below have not said anything about Section 11 of the Hindu Minority and Guardianship Act, 1956 but this Court cannot overlook the provision and the bar created under Section 11 which is squarely applicable in case of transfer so made by the brother (Sirish) of the minor (Santosh). Although, not necessary to discuss here but the result of the suit would have been different had the plaintiff made Santosh a party defendant in the plaint or had the plaintiff at least made any attempt to amend the plaint to bring Santosh on record who was undoubtedly a necessary party. Therefore, the substantial question of law framed at the time of admission of the appeal does not justify to hold any other opinion than what has been held by the learned Courts below. There is no merit in this second appeal and hence, the same is dismissed. 9. Judgment and decree passed by the Courts below are affirmed. There will, however, be no order as to costs. 10. There is no merit in this second appeal and hence, the same is dismissed. 9. Judgment and decree passed by the Courts below are affirmed. There will, however, be no order as to costs. 10. Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned advocates for the respective parties upon compliance of all usual formalities.