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Kamikhya Nath Mukerjee and anr. Vs. Hari Churn Sen and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1899)ILR26Cal611
AppellantKamikhya Nath Mukerjee and anr.
RespondentHari Churn Sen and ors.
Excerpt:
probate and administration act (v of 1881), sections 40 and 90 - letters of administration--effect of transfer of immoveable property by a hindu widow with the judge's sanction, on obtaining letters of administration--legal necessity--fraudulent representation. - .....3 had obtained letters of administration to the estate of her deceased husband and the district judge's permission to sell the property now in suit, upon fraudulent misrepresentation of facts, and that the defendants nos. 1 and 2 made the purchase with the full knowledge of the fraudulent representations made by the defendant no. 3 in obtaining the permission to sell, and had acted in collusion with the defendant no. 3 in obtaining such permission.4. on appeal by the defendants nos. 1 and 2 the learned district judge has confirmed the decree of the first court in favour of the plaintiffs, on the ground that the sale in question was not for legal necessity, and that the fact of its having been effected by the defendant no. 3 with the permission of the district judge under section 90 of.....
Judgment:

Banerjee, J.

1. This appeal arises out of a suit brought by the plaintiffs, respondents, who are the reversionary heirs of the defendant No. 3, a Hindu widow, for a declaration that the alienation made by the defendant No. 3 in favour of defendants Nos. 1 and 2 is invalid beyond the life-time of defendant No. 3, on the ground that the transfer was made without legal necessity, and is vitiated by fraud and collusion.

2. The defence was, that the alienation was valid and binding; that there was no fraud or collusion in the matter, and that the defendant No. 1 had no concern with the purchase, which was really made by the defendant No. 2 on her own behalf.

3. The first Court found that the alienation in question was made without any legal necessity, that the defendant No. 3 had obtained letters of administration to the estate of her deceased husband and the District Judge's permission to sell the property now in suit, upon fraudulent misrepresentation of facts, and that the defendants Nos. 1 and 2 made the purchase with the full knowledge of the fraudulent representations made by the defendant No. 3 in obtaining the permission to sell, and had acted in collusion with the defendant No. 3 in obtaining such permission.

4. On appeal by the defendants Nos. 1 and 2 the learned District Judge has confirmed the decree of the first Court in favour of the plaintiffs, on the ground that the sale in question was not for legal necessity, and that the fact of its having been effected by the defendant No. 3 with the permission of the District Judge under Section 90 of the Probate and Administration Act (Act V of 1881) does not affect the question; but he has not confirmed the finding of the first Court upon the question of fraud, and he has in one or two places questioned the correctness of the inference of fraud from certain of the circumstances relied upon in the Subordinate Judge's judgment.

5. In second appeal it is contended for the defendants Nos. 1 and 2 that the learned District Judge is wrong in holding that the alienation in question was invalid beyond the widow's life-time, on the ground of the absence of legal necessity, when he ought to have held that the alienation having been made with the permission of the District Judge by the defendant No. 3 who had obtained letters of administration in respect of the estate, it was valid as an absolute alienation under Section 90 of the Probate and Administration Act of 1881.

6. We are of opinion that the view taken by the learned District Judge that the permission obtained by the defendant No. 3 under Section 90 of the Probate and Administration Act can give no validity to the alienation, simply because it was an alienation by a Hindu widow and was made without legal necessity, is wrong. For by Section 4 of the Probate and Administration Act, the administrator of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in the Administrator as such; and by Section 90 of the Act the Administrator has, subject to the provisions of that section, power to dispose, as he thinks fit, of all or - any of the property for the time being vested in him under Section 4 of the Act; and the provision of the law to which this power is subject is contained in Sub-section 3 of Section 90, which says that' an administrator may not, without the previous sanction of the Court by which the letters of administration were granted, mortgage, charge or transfer by sale, gift, exchange or otherwise any immoveable property for the time being vested in him under Section 4.'

7. Here the sale in favour of the defendants Nos. 1 and 2 was effected by the defendant No. 3, not in her character as the widow of her deceased husband, but in her character as administrator of his estate, and the deed of sale in favour of the defendants Nos. 1 and 2 distinctly recites that the alienation is made by her, she having been authorised in that behalf by the permission granted to her by the District Judge. That being so, the alienation would be valid, irrespective of the existence of legal necessity, by virtue of the provisions of Section 90 of the Probate and Administration Act. The ground therefore upon which the learned District Judge has based his decision in favour of the plaintiffs is untenable, and his decision must, therefore, be set aside.

8. Then arises the question, whether the case ought not to be remanded to the Lower Appellate Court in order that it may come to a finding upon the question of fraud which was raised in the plaint, and upon which a finding was arrived at by the first Court in favour of the plaintiffs. It was not disputed by the learned Counsel for the appellants, and it cannot be disputed, that if the alienation in question was brought about with the object of defrauding the plaintiffs who are the reversionary heirs, and if the District Judge's permission was obtained by a false representation of facts made by the defendant No. 3, the vendor, and the purchasers, the defendants Nos. 1 and 2, were aware of the fraud and took the conveyance from the defendant No. 3 with the knowledge that the District Judge's permission had been obtained by her upon a fraudulent misrepresentation of facts, in that case Section 90 of the Probate and Administration Act could not make the alienation valid; for fraud would in such a case vitiate the permission and the transfer in favour of the defendants Nos. 1 and 2 who would be participators in the fraud.

9. But we are asked to hold that as the learned District Judge has, with reference to one or two points, questioned the correctness of the learned Subordinate Judge's inference of fraud, he has in fact altogether negatived the findings of fraud in this case, Reading the learned District Judge's judgment as a whole we are unable to come to that conclusion. It is true that the learned District Judge does not confirm the first Court's finding on the question of fraud, but he has not negatived the finding of fraud which that Court arrived at upon a consideration of the evidence. The case must, therefore, go back to the Lower Appellate Court in order that it may dispose of the appeal after determining upon the whole of the evidence on the record whether the fraud alleged in the third and fourth paragraphs of the plaint has been established, and established, not only as against the defendant No. 3, but also as against the defendants Nos. 1 and 2. If that question is answered in the negative the suit must be dismissed with costs; if, on the other hand, that question is answered in the affirmative, the plaintiffs will be entitled to a decree. The costs of this appeal will abide the result.


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