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Bela and anr. Vs. Parmeshar Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1887)ILR9All508
AppellantBela and anr.
RespondentParmeshar Das and ors.
Excerpt:
act xl of 1858 (bengal minors act), section 3 - suit on behalf of minor--permission to relative to sue, proof of--civil procedure code, sections 440, 578. - - i say this, as i have often said it before, that it is the bounden duty of the judges in appeals from original decrees to indicate clearly the reasons of their conclusions, and properly weigh the evidence in the case......as is required by section 3 of act xl of 1858, and therefore she could not maintain the suit. the learned judge of the lower appellate court overruled this point. but in dealing with the merits of the case, he has written a few lines, which do not convey to my mind any information that he had present to his mind all the essential points of tins case. it seems to me that it may be presumed that the learned judge did not dispose of the case upon a preliminary point, and that he did make some sort of endeavour to deal with the case upon the merits. but the judgment recorded by him is very unsatisfactory, and it is not such as is required by section 574 of the civil procedure code. i have had doubts whether the judgment should not be set aside altogether, and the case remanded under section.....
Judgment:

Mahmood, J.

1. This is a suit by one Ram Ghulam, under the guardianship of his mother Bela, for the recovery of possession of certain property, which admittedly belonged to one Indar Sen. Indar Sen is said to have died, by one party, in 1273 fasli, corresponding to 1866 of the Christian era, and it is found by the Court of First Instance that he died in 1275 fasli, which would be about 1868 A.D. The plaintiff's suit was resisted by the defendants on the allegation that they were the real heirs of Indar Sen, but that the plaintiff was born of Bela, after the death of Indar Sen, by another husband; that the plaintiff therefore had no right of inheritance in respect of the property of Indar Sen; that the defendants had been in adverse possession for more than twelve years, and therefore the suit was barred by limitation. The Court of First Instance decreed the claim upon findings which are not necessary to be set down here.

2. Upon appeal, amongst many of the grounds urged by the defendants, one was that Musammat Bela, who called herself the next friend and guardian of Ram Ghulam, had not obtained the certificate of guardianship from the Civil Court, as is required by Section 3 of Act XL of 1858, and therefore she could not maintain the suit. The learned Judge of the Lower Appellate Court overruled this point. But in dealing with the merits of the case, he has written a few lines, which do not convey to my mind any information that he had present to his mind all the essential points of tins case. It seems to me that it may be presumed that the learned Judge did not dispose of the case upon a preliminary point, and that he did make some sort of endeavour to deal with the case upon the merits. But the judgment recorded by him is very unsatisfactory, and it is not such as is required by Section 574 of the Civil Procedure Code. I have had doubts whether the judgment should not be set aside altogether, and the case remanded under Section 562, Civil Procedure Code, for proper decision according to law. But considering the exigencies of this particular case, I think it will be sufficient for the ends of Justice to indicate what the issues were upon which the learned Judge ought to have concentrated his mind and arrived at a final decision. I say this, as I have often said it before, that it is the bounden duty of the Judges in appeals from original decrees to indicate clearly the reasons of their conclusions, and properly weigh the evidence in the case. It is not our duty, sitting as a Court of second appeal, to weigh the evidence.

3. Before, however, indicating those issues, it is necessary to dispose of the question of law insisted upon by Mr. Howard, namely, whether the plaintiff was properly represented in this litigation by his mother, who never obtained a certificate of guardianship. With regard to this, I am of opinion that the Full Bench ruling in the case of Bhaha Pershad Khan v. The Secretary of State for India in Council I. L. R., 14 Cal., 159, decides the point. All that has been argued before us was argued there, and it was held that the absence of a certificate of guardianship was not a fatal matter, and that the very fact of the Court allowing a suit to proceed must he taken to imply that the necessary permission was given. Moreover, upon this point, I have very definite views of my own, and even if no such permission was given, the irregularity was such as was covered by Section 578 of the Code; that is to say, it did not affect the merits of the case or the jurisdiction of the Court. I therefore disallow this objection.

4. As to the other grounds of appeal, there are only these points, which form the main issues in the case: When did Indar Sen die, and when was Ram Ghulam born? The learned Judge below must find on these, and decide whether Ram Ghulam is the legitimate son of Indar Sen or not.

5. Then as to adverse possession, which has been made the subject of fourth ground of appeal, I think, the plaintiff being a minor, no plea of that character can arise. But there are other circumstances which the learned Judge should bear in mind in deciding the case. Among them it is alleged by one side that upon the death of Indar Sen, the property was entered in the Government revenue records in the name of Mussammat Bela and not in the name of Ram Ghulam, who, if the son of Indar Sen, would be the rightful heir. There are also other minor circumstances in the case to be borne in mind; for instance the allegation that after the mutation of names had already been made, Musammat Bela had, by an application subsequently presented to the revenue authorities, asked for her name to be expunged, and the names of the defendants recorded because she had contracted a second marriage. These are questions which bear upon the main issues. I would therefore remand the case under Section 566 for decision upon those points. On the return of the findings ten days will be allowed for objections.

Brodhurst, J.

6. I concur in the remand order proposed by my learned colleague. See also Janki v. Dharam Chand I. L. R., 4 All., 177. Contra, see Pirthi Singh v. Lobhan Singh I. L. R., 4 All., 1.


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