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Kanok Dasi Vs. Srihari Goswami and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal404,52Ind.Cas.269
AppellantKanok Dasi
RespondentSrihari Goswami and ors.
Cases ReferredSee Arunachala Aiyar v. Ramasami Aiyar
Excerpt:
guardians and wards act (viii of 1890), sections 29, 30 - limitation act (ix of 1908), section 28, schedule i, article 44--sale of immoveable property by guardian in contravention of sanction, validity of--minor, suit by, to set aside sale--purchaser from minor, position of--transfer of property act (iv of 1882), section 55--limitation act (ix of 1908), schedule i, article 116--registered conveyance--covenant for title, whether implied--breach of covenant. - .....ever since his purchase. in the conveyance in favour of the plaintiff there is no reference to the sale by the guardian. i think the learned subordinate judge was right in coming to the conclusion that the plaintiff is also barred from instituting this suit for cancellation of defendant no. 1's conveyance, and that he has no right to possession without such cancellation. he has also held that inasmuch as defendant no. 3 did not take any steps to repudiate the acts of his guardian within three years it ought to be presumed that the sale by his certificated guardian was. ratified. mere abstention from taking steps may not amount to ratification acquiescence, but it is quite correct that defendant no. 3 could not institute a suit to set aside the sale having regard to article 44 of the.....
Judgment:

Asutosh Chowdhury, J.

1. The plaintiff claims title by purchase from defendant No. 3 on 20th Jaisto 1319/10th June 1912 defendant No. 1 on the other hand also claims on the strength of a purchase by his father from defendant No. 3's certificated guardian in April 1905. It has been found by both the Courts that the sale by the certificated guardian was not in accordance with the Court's sanction. They are right in holding that the sale. was, therefore, voidable. The sale, however, is good until it is avoided. Defendant No. 3 attained majority in Jaisto 1318/May-June 1911. No action for repudiating the acts of the guardian was taken by him within three years after attainment of majority under Article 44 of the Limitation Act. Defendant No. 3 could not have instituted such a suit after the lapse of three years. Defendant No. I has been in possession of the property ever since his purchase. In the conveyance in favour of the plaintiff there is no reference to the sale by the guardian. I think the learned Subordinate Judge was right in coming to the conclusion that the plaintiff is also barred from instituting this suit for cancellation of defendant No. 1's conveyance, and that he has no right to possession without such cancellation. He has also held that inasmuch as defendant No. 3 did not take any steps to repudiate the acts of his guardian within three years it ought to be presumed that the sale by his certificated guardian was. ratified. Mere abstention from taking steps may not amount to ratification acquiescence, but it is quite correct that defendant No. 3 could not institute a suit to set aside the sale having regard to Article 44 of the Limitation Act and be was not entitled to possession having regard to the operation of Article 28: see Latchiah v. Mukkalinga 30 M. 393 : 17 M.L.J. 220 : 2 M.L.T. 351. The plaintiff cannot have any higher rights than defendant No. 3, his vendor.

2. The plaintiff in this action asked in the alternative for refund of the consideration money by defendant No. 3. The learned Subordinate Judge has held that as there is no indemnity clause in the Kobala, Article 116 is of no avail and that Article 97 also does not operate in his favour. Article 97 operates from the date of the failure of consideration. The sale to the plaintiff was on the 10th June 1912. The plaint was filed on the 27th November 1915. It states that when the plaintiff attempted to take possession after her purchase, she was ousted by the defendants in the month of Pous 1319--December-January 1912-1913--but there is no finding as to when this took place. Under Article 97 the date runs from the time when the plaintiff was ousted from or failed to get possession [Hanuman Kamat v. Hanuman Mandur 19 C. 123 : 18 I.A. 158 : 6 Sar. P.C.J. 91 : 9 Ind. Dec. (n.s.) 527 (P. C), see also Tulsiram v. Murlidhar Chaturbhuj 26 B. 750 : 4 Bom. L.R. 57.] So far as Article 113 is concerned, although there is no express indemnity in the plaintiff's Kobala, yet under Section 55 of the Transfer of Property Act there is an implied covenant for possession. Thus there was a breach in this case of that implied covenant. Defendant No. 3 averred that he was in possession when he sold the property to the plaintiff and failed to give possession. I hold, therefore, that the plaintiff's Kobala being a registered document, he had six years under Article 116 to get compensation. See Arunachala Aiyar v. Ramasami Aiyar 25 Ind. Cas. 618 : 38 M. 1171 27 M.L.J. 517 : 16 M.L.T. 397 : 1 L.W. 849, in which it was held that in all registered conveyances executed after the Transfer of Property Act came into force, a covenant for title is implied by Section 55, Clause (2), of that Act and that the registered conveyance should be read as if it expressly embodied that covenant and that breach of that covenant is the breach of a contract in writing registered, within the meaning of Article 116. I, therefore, hold that the plaintiff is entitled to a decree for compensation for Rs. 40 against defendant No. 3 with interest thereon at 6 per cent. from date of suit.

3. The appeal, therefore, is dismissed as against defendant No. 1 with costs and decreed as against defendant No. 3 with costs.


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