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Kali Charan Naskar Vs. Sudhir Chandra Naskar and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata High Court
Decided On
Case NumberS.A. No. 330 of 1976
Judge
Reported inAIR1985Cal66,89CWN257
ActsHindu Law; ;Limitation Act, 1963 - Article 60; ;Transfer Property Act, 1882 - Section 54
AppellantKali Charan Naskar
RespondentSudhir Chandra Naskar and anr.
Appellant AdvocateBikash Chandra Mandal, Adv.
Respondent AdvocateBirendra Kumar Roychowdhary and ;Alak Kumar Biswas, Advs. for Respondent No. 1 and ;Ranjit Kumar Banerjee as Amicus Curiae
DispositionAppeal allowed
Cases ReferredMalkarjun Annarao Gambhire v. Sarubai Shivyogi
Excerpt:
- .....and gopal tarafdar by the kobala dated 14-3-51. in that kobata bamanmoni naskar represented the minor kalicharan as his guardian. bamanmoni was the paternal aunt of kalicharan. it was recited in the said kobala that bamanmoni sold the share of kalicharan for legal necessity to maintain kalicharan. the plaintiff who is the son of haripada purchased the suit land from panchu tarafdar and gopal tarafdar on 31-1-67. the defendant no. 1 tried to disturb the plaintiffs possession and caused damage by taking away the fruits etc. from the trees on the suit land on the allegation that the defendant had title and possession in the suit land. the plaintiff accordingly brought the suit for the relief as claimed. the defendant no. 1 kalicharan alone contested the suit. his defence was that.....
Judgment:

Sukumar Chakravarty, J.

1. This Second Appeal is directed against the judgment and decree passed by the learned Additional District Judge, Sixth Court, Alipore, in Title Appeal No. 159 of 1975, setting aside the judgment and decree of dismissal as passed by the learned Munsif, Second Court, Baruipore, in Title Suit No. 190 of 1973 and decreeing the suit.

2. The plaintiff filed the suit for declaration of his title to the suit land and for permanent injunction.

3. It was the case of the plaintiff in brief that the suit land previously belonged to Abhoy Charan Naskar, Haripada Naskar, Ananda Naskar, Kalidas alias Kalicharan Naskar and Bamanmoni Naskar. Kalicharan Naskar was the defendant No. 1 and he had his I/8th share in the land. When Kalicharan Naskar was aged about 5, all the co-sharers sold the entire suit land to Panchu Tarafdar and Gopal Tarafdar by the kobala dated 14-3-51. In that kobata Bamanmoni Naskar represented the minor Kalicharan as his guardian. Bamanmoni was the paternal aunt of Kalicharan. It was recited in the said kobala that Bamanmoni sold the share of Kalicharan for legal necessity to maintain Kalicharan. The plaintiff who is the son of Haripada purchased the suit land from Panchu Tarafdar and Gopal Tarafdar on 31-1-67. The defendant No. 1 tried to disturb the plaintiffs possession and caused damage by taking away the fruits etc. from the trees on the suit land on the allegation that the defendant had title and possession in the suit land. The plaintiff accordingly brought the suit for the relief as claimed. The defendant No. 1 Kalicharan alone contested the suit. His defence was that Bamanmoni Naskar never acted as his guardian and that she had no authority to sell the share of the minor Kalicharan as his guardian. It was further contended that Kalicharan was in the care of his another distant aunt Patalmoni and that Bamanmoni was not in . charge of the care of the minor Kalicharan and his share in the joint property. Bamanmoni being not the guardian of Kalicharan in any way transferred the share of the minor Kalicharan without legal necessity by the kobala dated 14-3-51. Accordingly, the purchasers namely the Tarafdars did not acquire any title in respect of the share of Kalicharan in the suit land. Consequently the plaintiff by his purchase from Panchu Tarafdar and Gopal Tarafdar did hot acquire any title to the share of Kalicharan in the suit land. It was further contended that he had been exercising his possession for more than 12 years in the suit land after attaining majority and that the plaintiff had no interest and possession in the suit land.

4. The learned Munsif in consideration of the evidence and other facts and circumstances found that the transfer of the share of Kalicharan by Bamanmoni during the minority of Kalicharan by the impugned kobala was not for legal necessity. The learned Munsif found also that Kalicharan during his minority was not in the care of Bamanmoni who was destitute but he was in the care of Patalmoni who was rich. The learned Munsif accordingly held that the sale of Kalicharan Naskar's share in the suit land by Bamanmoni Naskar as guardian of Kalicharan without legal necessity did not transfer the title of Kalicharan in respect of his share to the purchasers Panchu Tarafdar and Gopal Tarafdar. The learned Munsif accordingly dismissed the suit by holding that the plaintiff did not acquire title to the share of Kalicharan.

5. On appeal the learned Additional District Judge concurred with the finding of the learned Munsif that Kalicharan while he was a child, was in the care of Patalmoni and not in the care of his paternal aunt Bamanmoni and that Bamanmoni describing herself as guardian of Kalicharan sold the share of Kalicharan in the suit land without legal necessity by the kobala dated 14-3-51. The learned Additional District Judge, however, found that Kalicharan attained majority in 1964 and did not file any suit for setting aside the transfer by the kobala dated 14-3-51 within three years after attaining majority. According to the learned Additional District Judge, the defendant Kalicharan therefore lost his right to claim over the property because of the limitation. The learned Additional District Judge found also the possession of the plaintiff in the land and accordingly decreed the suit with regard to the plaintiff's prayer for injunction on declaration of his title to the same.

6. The defendant No. 1 (Kalicharan) being aggrieved by such judgment and decree as passed by the learned Additional District Judge has preferred this second appeal on the ground that the learned Additional District Judge committed mistake in law in decreeing the suit after reversing the judgment and decree of dismissal as passed by the learned Munsif.

7. Mr. Bikash Chandra Mandal, learned counsel for the appellant defendant No. 1 has challenged the judgment and decree of the learned Additional District Judge and has made his submission only on two points. According to him, Bamanmoni Naskar, the paternal aunt of the defendant No. 1 was not the natural guardian of the defendant No. 1 when he was a minor, nor was she appointed guardian of minor Kalicharan under the Guardians and Wards Act, 1890 and accordingly she had no authority to sell the share of minor Kalicharan even for legal necessity even if Bamanmoni was found to be de facto guardian. His second point is that Bamanmoni was not even the de facto guardian of minor Kalicharan and accordingly her transfer of minor's share was void ab initio and that even if Bamanmoni is found to be the de facto guardian, her transfer of the share of minor Kalicharan being without legal necessity was void ab initio and accordingly such transfer was not required to be voided by the defendant No. 1 Kalicharan within three years after attaining majority.

8. Mr. Birendra Kumar Roychowdhury, learned counsel for the plaintiff-respondent No. 1, has submitted that Bamanmoni was the natural guardian of minor Kalicharan and that her transfer of the share of minor Kalicharan required to be voided by the defendant No. 1 Kalicharan within three years after attaining majority although such transfer is found to be without legal necessity. He has further submitted that if Bamanmoni is found to be not the natural guardian, still she was the de facto guardian of the minor and his property and accordingly she could transfer the minor's share for legal necessity and in the absence of legal necessity in the transfer of minor's share by such de facto guardian, the defendant No. 1 Kalicharan was required under the law, to set aside such transfer within three years after attaining majority as such transfer was not void ab initio but voidable.

9. As some complicated questions of law are involved in the instant case, on my request on consent of the learned counsel of both sides Mr. Ranjit Kumar Banerjee as amicus curiae has made his submission to throw light on whether a de facto guardian can sell the minor's property for legal necessity and also to throw light on whether any transfer by the de facto guardian without legal necessity is void ab initio.

10. Some undisputed facts have emerged from the pleadings, evidence and submissions of the learned counsel on both sides. The land in dispute admittedly belonged to Abhoy Charan Naskar, Haripada Naskar, Ananda Naskar, Kalidas alias Kalicharan Naskar (defendant No. 1) and Bamanmoni Naskar and that Kalicharan (defendant No. 1) had his 1/8th share in the land. It has transpired that Bejoy Naskar, father of Kalicharan Naskar (defendant No. 1) and Basanta Naskar, husband of Bamanmoni Naskar, were two brothers and that plaintiff-respondent's, father Haripada Naskar, was the son of the grand paternal uncle of Kalicharan (defendant No. 1). It is also undisputed fact that the father and mother of Kalicharan (defendant No. 1) died when Kalicharan was a mere child. It was also an undisputed fact in both the Courts below that Bamanmoni Naskar as herself and as guardian of the minor Kalicharan along with the other co-sharers sold the land in the disputed dag to Panchu Tarafdar and Gopal Tarafdar by the Kobala dated 14-3-51 (Ext.3). In this Court, however, Mr. Mandal, learned counsel for the defendant appellant has drawn my attention to the relevant kobala (Ext.3) and submits that the kobala dated 14-3-51 (Ext.3) does not bear the signature or thumb impression of Bamanmoni Dasi although it appears from the said kobala that Abhoy Charan Naskar wrote the name of Smt. Bamanmoni Devi for herself and for the minor as guardian mother, although the body of the kobala and the cause title shows that Bamanmoni has described herself as 'khurimata' guardian (paternal aunt guardian of minor Kalicharan Naskar). Be that as it may, according to the finding of both the Courts below Bamanmoni as herself and as guardian of minor Katicharan sold the share of Kalicharan in the land along with other co-sharers by the kobala dated 14-3-51 (Ext.3). It is also the fact that such transfer took place before coming into force of the Hindu Minority and Guardianship Act, 1956. There is the concurrent finding of fact of both the Courts below that Bamanmoni sold the undivided 1/8th share of minor Kalicharan without legal necessity and that the minor Kalicharan was in the care of his another distant aunt Patalmoni who brought up Kalicharan.

11. As the transfer of the minor's property by the alleged guardian in the present case was made in 1951 prior to the coming into force of the Hindu Minority and Guardianship Act, 1956, the Hindu Law prior to the said Act and the Guardians and Wards Act, 1890 would govern the present case Article 517 of Mulla's Hindu Law, 15th Edn. says who are the guardians under the Hindu Law. Guardians have been classified in three classes in that Article 517, viz, (1) natural guardian, (ii) guardian appointed by a father by a will and (iii) guardian appointed under the Guardians and Wards Act, 1890 by a District Judge or by a Chartered High Court in exercise of its ordinary original civil jurisdiction or inherent powers. Besides the above classification in the said Mulla's Hindu Law, I find the mention of guardian de facto and guardian ad hoc in Article 538. The Article 538 indicates who can be described as guardian de facto and Clause (2) of Article 538 says that a de facto guardian has the same power of alienating the property of his ward as a natural guardian. The leading case on this point is Hunoomanpersaud Panday v. Mt. Babooee Munraj Koonweree reported in (1856) 6 Moo Ind App 393. The point decided in that case was that an alienation by a mother who was in charge of the property of an infant son was binding on that son after he came of age. Their Lordships in the Privy Council treated the lady as if she was merely a de facto manager though in fact according to Hindu Law she was the natural guardian and de jure manager. The principle of law as enunciated in that case was followed by out High Court in the case of Mohanund Mondal v. Nafar Mondal reported in (1899) ILR 26 Cal 820 and also by the Madras High Court in the case of Seetharamanna v. Appiah reported in (1926) ILR 49 Mad 768 : (AIR 1926 Mad 457). The Full Bench decision of the Bombay High Court in the case of Tulsidas Jesingbhai Parikh v. Raisingji Fulabhai Vaghela reported in AIR 1933 Bom. 15 by following the decisions in the aforesaid Privy Council case and the Calcutta High Court and Madras High Court cases, has answered the question whether under the Hindu Law a de facto guardian of a minor can validly sell the property of the minor to a third person for legal necessity, in the affirmative. The view taken by the Bombay High Court Full Bench has also been fully supported by the decision of the Federal Court in Kondamudi Sriramulu v. Myneni Pundarikakshavya reported in 1949 FCR 65 : (AIR 1949 FC 218).

12. So, it is now the settled law that a de facto guardian of a minor also can sell the minor's property for legal necessity just like a natural guardian. This answers the first point of the submissions of Mr. Mandal, learned counsel for the appellant defendant No. 1.

13. There is no dispute to the fact that Bamanmoni was not natural guardian nor was she a guardian appointed by the Court. Both the Courts below have found that Kalicharan was brought up by Patalmoni and was not in the care of Bamanmoni for his maintenance. It is also not the case of the plaintiff that Bamanmoni was the manager of Hindu joint family in respect of the disputed joint property belonging to Abhoy Charan Naskar, Haripada Naskar, Anand Naskar, Kalidas alias Kalicharan Naskar and Bamanmoni Naskar. So in no way it can be held that Bamanmoni was the de facto guardian of Kalicharan both in respect of his person and property. The description of Bamanmoni as 'khurimata' guardian of minor Kalicharan in the impugned kobala dated 14-3-51 (Ext.3) is not supported by the facts in evidence. Furthermore, this has to be noted with interest that Bamanmoni did not put her signature or thumb impression on the kobala dated 14-3-51 (Ext.3). The mere writing other name for herself and as mother guardian of minor Kalicharan through the pen of Abhoy Charan Naskar does not prove that Bamanmoni actually executed the said kobala. So here also lies the inherent defect in the kobala which cannot transfer even the share of Bamanmoni. not to speak of the share of the minor. Of course both the Courts below have missed this pertinent and important point.

14. Be that as it may, in view of what has been stated above with regard to the fact whether Bamanmoni was at all a de facto guardian of minor Kalicharan, I find that the transfer of minor Kalicharan's share in the property by Bamanmoni being neither a natural guardian nor a de facto guardian is void ab initio. Further even if it be assumed for the sake of argument that Bamanmoni was the de facto guardian of minor Kalicharan in respect of his personal property at the time of the sale of Kalicharan's share, still in view of the concurrent finding of fact of both the Courts below to the effect that the transfer of minor Kalicharan's share by Bamanmoni was without legal necessity, the transfer in respect of Kalicharan's share becomes void ab initio in view of the Clause (3) of Article 538 of Mulla's Hindu Law, 15th Edn. It has been stated therein that alienation by de facto guardian, which is neither for necessity nor for the benefit of the estate of the minor, is void ab initio in. the sense that it confers no title on the alienee. This proposition of law gets its support in the decision in the case of Malkarjun Annarao Gambhire v. Sarubai Shivyogi reported in AIR 1943 Bom 187. It has been held therein that if an alienation is made either by a manager of a Hindu family or a de facto guardian of the minor's interest in the property but without legal necessity it is not voidable but is void in its inception and that the then Article 44 of the Limitation Act which now corresponds to Article 60 of the Limitation Act, 1963 has no application and accordingly the minor's interest in the property sold by such guardian would not be affected at all and that it would not be required for the minor to avoid such sale within three years after attaining majority.

15. Mr. Birendra Kumar Roychowdhury, learned counsel for the plaintiff respondent No. 1, has submitted another point which of course is not supported by the pleadings or by the evidence as also by the memorandum of appeal and the said point is that Panchu Tarafdar and Gopal Tarafdar who purchased the land including the share of the minor Kalicharan by the kobala dated 14-3-51 (Ext. 3) got possession in the land and possessed the land for more 12 years to acquire title by adverse possession and that the plaintiff by his purchase from the said Tarafdars acquired good title to the same. The question of adverse possession is a mixed question of fact and law and at this stage in the second appeal this cannot be allowed to be newly taken up. I have perused the plaint as also the evidence and I do not find that any case of adverse possession has been made out either in the plaint or in the evidence. Furthermore, it is the undisputed fact that Kalicharan attained majority in 1964 and the plaintiff purchased the land from Panchu Tarafdar and Gopal Tarafdar in 1967. So there does not appear to be any case of adverse possession for 12 years against Kalicharan after his attainment of majority. It has already been shown that the kobala dated 14-3-51 (Ext.3) by its inherent defect in the matter of execution and by the fact now established that Bamanmoni was not even a de facto guardian, not to speak of natural guardian of minor Kalicharan, the interest of mionr Kalicharan was not at all affected by the alienation made on the basis of the kobala dated 14-3-53 (Ext.3). Panchu Tarafdar and Gopal Tarafdar accordingly did not acquire any title to the 1/8th share of Kalicharan in the suit property and the plaintiff by his purchase from the said two Tarafdars did not also accordingly acquire any title to the share of Kalicharan in the undivided property. The learned Additional District Judge therefore committed mistake in law in decreeing the suit after reversing the judgment and decree of dismissal as passed by the learned Munsif.

16. In the result, this second appeal is allowed and the judgment and decree as passed by the learned Additional District Judge are set aside. The judgment and decree of dismissal as passed by the learned Munsif are restored and confirmed. There will be no order as to costs.


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