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Abheraj Umarkhan Malek and ors. Vs. Dolatsangji Surajmalji Desai and ors. - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported in96Ind.Cas.17
AppellantAbheraj Umarkhan Malek and ors.
RespondentDolatsangji Surajmalji Desai and ors.
Excerpt:
.....has arisen owing to the failure to distinguish the position of the collector as an officer entrusted with the, execution proceedings under section 68 of the code, from his position as the person who had been appointed guardian of the minor's property in his capacity as talukdari settlement officer. as i have already pointed out, the plaintiff complained of the action of his guardian in selling the property......a darkhast was issued in 1906 and the proceedings were transferred to the collector, so that the minor's property could be sold in execution. eventually, the collector qua guardian agreed to sell a portion of the minor's property for rs. 43,000 to the father of the present defendant no. 1. rupees 8,000 were paid in cash. then defendants nos. 2 and 3, the decree-holders, certified satisfaction of the darkhast2. the plaintiff says that the sale by the guardian of the minor's property was contrary to the minor's interests, and prays for the following amongst other reliefs: '(a) that it may be established that the giving by absolute sale and transferring of the lands mentioned in sen. a attached herewith, during the minority of me, the' plaintiff, by the guardian of my properties (i.e.,).....
Judgment:

1. In Suit No. 199 of 1898 in the Court of the First Class Subordinate Judge at Ahmedabad a decree was passed against the plaintiff's father on July 23, 1898, for Rs. 36,657 with running interest at six per cent, payable by instalments in favour of defendants Nos. 2.and 3. The plaintiff's father died on February 6, 1901 without having paid off any part of the decretal amount. Thereafter, the District Court appointed the plaintiff's mother to be the personal guardian of the minor and the Collector to be the guardian of the estate of the minor. The plaintiff attained majority on February 20, 1918. Meanwhile, a darkhast was issued in 1906 and the proceedings were transferred to the Collector, so that the minor's property could be sold in execution. Eventually, the Collector qua guardian agreed to sell a portion of the minor's property for Rs. 43,000 to the father of the present defendant No. 1. Rupees 8,000 were paid in cash. Then defendants Nos. 2 and 3, the decree-holders, certified satisfaction of the darkhast

2. The plaintiff says that the sale by the guardian of the minor's property was contrary to the minor's interests, and prays for the following amongst other reliefs: '(A) That it may be established that the giving by absolute sale and transferring of the lands mentioned in Sen. A attached herewith, during the minority of me, the' plaintiff, by the guardian of my properties (i.e.,) the respected Collector Saheb of Ahmedabad to Desai Surajmalji Jprawarsinghji, the father of the defendant 'No. 1,: by the registered deed of sale, dated February 13, 14, 1912, is against the interests of me, the plaintiff, and the same may be declared null and void, the same may be reconveyed to me and a permanent injunction may be granted against the defendants Nos. 1, 2 and 3.'

3. Now, the powers of a guardian appointed by the Court, when he is a Collector, are defined by the Guardians and Wards Act. Under Section 23: 'A Collector appointed or declared, by the Court to be guardian of the person or property, or both, of a minor shall, in all matters connected with the guardianship of his ward, be subject to the control of the Local Government or of such authority as that Government, by notification in the Official Gazette, appoints in this behalf.' Section 29, which limits the power of a guardian appointed or declared by the Court with regard to the mortgage or transfer by sale of immoveable property belonging to the minor, expressly excludes the Collector.

4. Exhibit 43 is the consent of the Commissioner of the Northern Division to the settlement proposed by the Collector acting as guardian of the minor. It is dated November 28, 1910. In 1911, the minor's mother made an application to the District Judge at Ahmedabad to remove the Collector as guardian on account of various allegations made against him in the application. In those proceedings the transaction that is now before us, was fully investigated. The Court decided that the transaction was a proper one, and considered that the allegations that the property had been sold at an undervalue had not been sustained. In fact, it appeared to the Court that the bargain made by the guardian was a good one. The Assistant Judge said:

It is thus quite clear that the Collector has not failed to perform the duties of his trust in any way, on the contrary that he has been acting to the best interests of the minor in settling, by parting with half of the estate, a large debt, which, had it not been for the Collector's intervention, would have otherwise swept away the whole estate and left the minor penniless, and I must observe that this application appears to me most ill-advised.

5. An appeal from that decision to the High Court was dismissed. The minor, having some of age wishes now to set aside the transaction. Many of the issues which were raised by the Subordinate Judge were irrelevant. We have nothing to do with the compromise of the decree for less than the amount. We are only concerned with the particular sale effected by the guardian and a confusion has arisen owing to the failure to distinguish the position of the Collector as an officer entrusted with the, execution proceedings under Section 68 of the Code, from his position as the person who had been appointed guardian of the minor's property in his capacity as Talukdari Settlement Officer.

6. It is suggested now that the property was sold in execution by the Collector. That was not the case set out in the plaint. As I have already pointed out, the plaintiff complained of the action of his guardian in selling the property. Considering that the Collector as guardian had obtained the sanction of the Commissioner, his superior officer, to the sale, and considering that, when his action was challenged in the High, Court, an application to remove him was dismissed and the sale was confirmed by the Court, it is quite impossible now for the plaintiff, when he has attained his majority, to attempt to set aside the transaction.

7. Again, it has been argued that we are concerned with the compromise, and that, as there was no sanction of the Court to obtain a compromise, the compromise is void. The sale was not really so connected with the compromise, that if the compromise is set aside, the sale falls with it. It may be that the plaintiff having set aside the compromise would still not be able to set aside the sale. That would be quite a distinct matter and subject to other rules.

8. We think that the judgment of the Court below was right, and the appeal must be dismissed with costs to the purchaser.


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