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Kamta Rai and ors. Vs. Rani Jaduraj Kunwari - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1931All398
AppellantKamta Rai and ors.
RespondentRani Jaduraj Kunwari
Excerpt:
.....board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - mansa ram [1896] 18 all 384 clearly applies to the facts of the case. the learned advocate contends that the learned subordinate judge had not approached the question as to valuation from a correct point of view, but upon an examination of the evidence adduced by the plaintiff we are of opinion that the plaintiffs have failed to prove that the sale was for a grossly inadequate consideration. 16 is clearly applicable to the facts of the case. ' we fail to understand what the learned subordinate judge means by it because the word 'discharge' suggests that he was thinking of section 7, lim. act, clearly has got no application to any but the cases to which it is made applicable namely to debts and to execution.....banerji, j.1. this is a plaintiffs' appeal in a suit to set aside a sale deed dated 2nd july 1923.2. the suit was for avoidance of a sale deed executed by the certificated guardian of the first two plaintiffs, who were minors, on 2nd july 1913. the sale was of a three anna share in mauza phulvi for the sum of rs. 14,400.3. on 1st april 1900 a mortgage deed had been executed in favour of the defendant by the grandfather of the two minors. no question as to the legality or otherwise of the mortgage could have been raised as the mortgage of the year 1900 was executed in lieu of antecedent debts. the mortgagee was entitled on 3rd may 1901 to demand repayment of the money and therefore any suit that the defendant had chosen to file to enforce the mortgage would have been within time up to 3rd.....
Judgment:

Banerji, J.

1. This is a plaintiffs' appeal in a suit to set aside a sale deed dated 2nd July 1923.

2. The suit was for avoidance of a sale deed executed by the certificated guardian of the first two plaintiffs, who were minors, on 2nd July 1913. The sale was of a three anna share in mauza Phulvi for the sum of Rs. 14,400.

3. On 1st April 1900 a mortgage deed had been executed in favour of the defendant by the grandfather of the two minors. No question as to the legality or otherwise of the mortgage could have been raised as the mortgage of the year 1900 was executed in lieu of antecedent debts. The mortgagee was entitled on 3rd May 1901 to demand repayment of the money and therefore any suit that the defendant had chosen to file to enforce the mortgage would have been within time up to 3rd May 1913.

4. The share of mauza Phulvi which was mortgaged by the deed was 6 annas 10 pies, and further, a tiled house was also mortgaged. Mt. Bhagwanta, step-mother of plaintiff 1 and the mother of plaintiff 2, applied on 31st August 1912 to be appointed guardian of Kamta Rai and Jatan Rai, the first two plaintiffs, and in that application, Ex. F, the reason for making the application stated by Mt. Bhagwanta for applying to be guardian is entered in the application as follows:

Debt amounting to about Rs. 13,276 is due by the minors, interest on which is increasing day by day. It is required to pay the debt due by the minors by selling a portion of the property.

5. On 5th October 1912 the learned District Judge of Cawnpore appointed Mt. Bhagwanta as guardian of the two minors. On 20th November 1912 an application for permission to sell a three anna share in mauza Phulvi, which on that date had become six annas by partition, was presented to the District Judge and permission was sought to sell the three annas former share to pay the mortgage in favour of the defendant and to pay up a decree of Rs. 1,100 which had been passed against the minors. After due enquiry on 28th March 1913 the learned District Judge sanctioned the sale and directed that a draft sale deed be presented to him to pass and check the draft. Eventually, on 2nd July 1913 the sale deed now questioned by the plaintiffs was passed by the District Judge, executed by Mt. Bhagwanta and under the deed a three anna share, which had then become a six anna share by partition, passed to the defendant Rani.

6. The plaintiffs' case is that a fraud was practised on the District Judge by Mt. Bhagwanta in conspiracy with the Rani's servants and that the transfer on 2nd July 1913 was for a grossly inadequate consideration. The plaintiffs also urged that on the date of the sale the Rani's claim upon the mortgage had become barred by time and that the plaintiffs were in adverse possession of the property alleged to have been conveyed by the deed of 2nd July 1913.

7. The learned Subordinate Judge decided on these points against the plaintiffs and hence this appeal. All the findings recorded by the learned Subordinate Judge have been challenged by the learned advocate for the appellants.

8. It is urged strenuously by the learned advocate for the appellants that the Court below had erred in holding that there was a valid acknowledgment within the meaning of the Limitation Act of the Rani's debt. Sections 19 and 21 have been referred to and it is urged that the acknowledgments mentioned by the District, Judge could not be treated as valid acknowledgments either under Section 19 or Section 21: because the person who signed the acknowledgment was only a vakil of Mt. Bhagwanta and under the vakalatnama the vakils were not authorized to acknowledge any debts. It is no doubt true that in the vakalatnamas in favour of the two vakils no specific authority is given to them for acknowledging a debt but they were given full powers under the vakalatnama to do all acts necessary for the purposes of the case. It appears to us that the two vakils, while acting, had to enter what they did in the application and therefore the vakils had done nothing which was not necessary to carry on the cases that they were entrusted with. In our opinion the principle of the ruling in Hingan Lal v. Mansa Ram [1896] 18 All 384 clearly applies to the facts of the case. Dr. Katju however urges that in that, case the vakils were not acting on behalf of the guardian of the minor but, in our opinion, that makes no difference. We do not think that either Section 19 or Section 21, Lim. Act, contemplates that the authority to be given to the agent must in every case be an express authority.

9. We therefore are of opinion that there is no force in the contention of the learned advocate for the appellants that on the date of the sale, namely 2nd 'July 1913, the defendant's right to sue for the money due under the mortgage of 1900 was barred by limitation.

10. It is unnecessary to refer to the other question of facts raised as. in our opinion, there is no force in the contention that fraud was practised on the District Judge by the guardian of the defendant or the guardian's brother.

11. It is urged that the sale of 2nd July 1913 was not for the benefit of the minor. Although the sale was sanctioned by the District Judge it is urged that it is not conclusive that the sale was for the minors' benefit as it was for a grossly inadequate consideration. The learned advocate contends that the learned Subordinate Judge had not approached the question as to valuation from a correct point of view, but upon an examination of the evidence adduced by the plaintiff we are of opinion that the plaintiffs have failed to prove that the sale was for a grossly inadequate consideration. Lastly it is urged that the plaintiffs have matured a title to the property by 12 years adverse possession. To this the defendant replied by urging that the plaintiffs' claim is barred by three years' limitation.

12. The learned Subordinate Judge has in our opinion by a curious process of reasoning, held that the plaintiffs' claim is barred by three years' limitation in that Kamta Rai plaintiff 1 had attained the age of majority long before the institution of the suit. It seems to us that the ruling in the case of Jawahir Singh v. Udai Parkash A.I.R. 1926 P.C. 16 is clearly applicable to the facts of the case. The learned Subordinate Judge has, in our opinion, gone wrong in referring to the cases that he has and in holding that Kamta Rai could give a 'discharge.' We fail to understand what the learned Subordinate Judge means by it because the word 'discharge' suggests that he was thinking of Section 7, Lim. Act. Section 7, Lim. Act, clearly has got no application to any but the cases to which it is made applicable namely to debts and to execution of decrees. The plaintiff Kamta Rai might have been able to give a discharge of a debt due to the family but that does not mean that the claim of each individual member of a joint Hindu family is barred because the karta or manager did not choose to institute a suit to avoid any transfer that any other member could challenge. It seems to us that the Courts do not always bear in mind which they ought to, the observation of Lord Halsbury in Queen v. Leatham [1901] A.C. 495 (at p. 506) namely that a case is only 'an authority for what it actually decides and that every judgment must be read as applicable to the particular facts proved or assumed to be proved. We therefore think that the learned Subordinate Judge is wrong in holding that the plaintiffs' claim is barred by three years' limitation.

13. We have now to examine whether the plaintiffs have acquired by adverse possession any title to the property in suit. It seems to us that the plaintiffs cannot in any circumstances whatsoever proved in this case claim that they have acquired title by adverse possession. It may be true that the defendant Rani has never received a pie as profit of the estate but Ex. O proves that the plaintiffs impleaded the defendant Rani along with them in a suit for. ejectment brought against some common tenants in the year 1919. In our opinion therefore the plaintiffs claim that they have acquired title by adverse possession, is a preposterous claim and no attention whatsoever can be paid to it.

14. The result therefore is that in our opinion there is no force in this appeal and we dismiss it with costs.


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