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Birupakshya Das Vs. Kunja Behari - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 210 of 1959
Judge
Reported inAIR1961Ori104; 26(1960)CLT431
ActsHindu Law; Child Marriage Restraint Act, 1929 - Sections 3
AppellantBirupakshya Das
RespondentKunja Behari
Appellant AdvocateG.K. Misra, Adv.
Respondent AdvocateB.N. Das and ;S.C. Das, Advs.
DispositionAppeal dismissed
Cases ReferredRam Jash Agarwalla. v. Chand Mandal. His Lordship
Excerpt:
.....of the child marriage restraint act of 1929'.in such circumstances, his lordship was of the opinion that the alienation could not be supported as being for legal necessity......was executed by dibakar on his own behalf and on behalf of his minor son junjabehari, was for legal necessity, and as such is binding against the present defendant kunjabehari. the plaintiff's further case is that possession was delivered thereafter and the plaintiff remained in possession of the property in suit through bhag tenants since 1948 and then for the years 1948 to 1950 the defendant was also inducted into the land and possessed as a bhag tenant of the plaintiff and since 1952 the defendant is not paying the rent due, so the present suit has been brought in 1952 for ejectment.2. the courts below have found that the sale-deed is a genuine transaction and for consideration negativing the defence plea that no consideration passed and the sale-deed is not genuine. the lower.....
Judgment:

S.P. Mohapatra, J.

1. This is a plaintiffs second appeal against the reversing judgment of the lower appellate Court arising out of a suit for declaration of title, recovery of possession and for damages which has been assessed by the plaintiff at Rs. 210/- for three years. The plaintiff is the brother of the father of the present defendant. Admittedly the disputed land belonged to Dibakar, the father of the defendant, and the defendant himself. The plaintiff bases his title on the basis of an unregistered sale-deed dated 27-5-1940 (Ex. 1) which purports to be for a consideration of Rs. 250/-.

It is to be mentioned here that the case is coming from the district of Sambalpur and is governed by the Central Provinces Tenancy Act. The plaintiff's version is that the transaction, which was executed by Dibakar on his own behalf and on behalf of his minor son Junjabehari, was for legal necessity, and as such is binding against the present defendant Kunjabehari. The plaintiff's further case is that possession was delivered thereafter and the plaintiff remained in possession of the property in suit through bhag tenants since 1948 and then for the years 1948 to 1950 the defendant was also inducted into the land and possessed as a bhag tenant of the plaintiff and since 1952 the defendant is not paying the rent due, so the present suit has been brought in 1952 for ejectment.

2. The Courts below have found that the sale-deed is a genuine transaction and for consideration negativing the defence plea that no consideration passed and the sale-deed is not genuine. The lower appellate court, however, has further found that the plaintiff was in possession of the land in dispute till 1948 through bhag tenants and through the defendant also as a bhag tenant for the years 1948 to 1950. But while the trial Court had decreed the suit relying upon a decision of this Court that the unregistered sale-deed conveyed title in favour of the plaintiff as the case is governed by the provisions of Section 46 of the C. P. Tenancy Act, the lower appellate Court however has dismissed the plaintiff's suit on the ground that the plaintiff had not been able to prove his title.

3. But what was more important for me to dispose of this appeal is the finding regarding legal necessity. The Courts below have found that the transaction was supported by legal necessity to the extent of Bs. 110/- which was incurred for paying off a previous bond dated 30-5-1930. The other item of legal necessity which has been recited in the deed is to meet the marriage expenses of the defendant himself who was a minor at the time when the deed was transacted.

The lower appellate Court has found that this amount of Rs. 140/- cannot be taken to be in law as legal necessity. Indeed, if it be found that the transaction was not for legal necessity for Bs, 140/-from out of total consideration of Bs. 250/-, the transaction cannot be binding as against the present defendant as the transaction is not supported by legal necessity for a substantial amount. The question, therefore, is whether the expenses incurred for the marriage of a minor can be taken to be a necessity under the Hindu Law on account of the statute of Child Marriage Restraint Act, 1929.

It is indisputable that the marriage is a valid marriage. The Child Marriage Restraint Act does not affect the validity of the marriage even though it may be in contravention of the provisions of the Act. In spite of the marriage being valid, it is transparent from the provisions of the Act that the marriage in contravention of the provisions of the Act is a criminal act punishable under law. The Legislature no doubt disapproves all such marriages and makes the performance of such marriage punishable in law.

To incur expenses for performing a ceremony which is a criminal act, in my opinion cannot be taken to be legal necessity for which a karta of the family is empowered under the Hindu law to effect an alienation. I am supported in my view! by a decision of B. K, Mukherji, J. (as he then was) reported in ILR (1937) 2 Cal 764, Ram Jash Agarwalla. v. Chand Mandal. His Lordship observed :

'There is no rule of Hindu Law sanctioning, early marriage of male children and there is no duty upon parents or guardians to marry their sons or.' male wards before they attain majority.'

His Lordship further observed :

'The practice of early marriage of Hindu minors-may be sanctioned by usage; but it has been disapproved by the passing of the Child Marriage Restraint Act of 1929'.

In such circumstances, his Lordship was of the opinion that the alienation could not be supported as being for legal necessity. I, therefore, confirm the view taken by the learned Subordinate Judge that the transaction was not supported by legal necessity.

4. Mr. G. K. Misra, appearing on behalf of theappellant, concedes that as the transaction fails onaccount of absence of legal necessity, the plaintiff isbound to be non-suited and the other questions neednot be gone into. In my view the position is correct.The Second appeal accordingly fails and is dismissed; but the parties are to bear their own costs,throughout.


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