Monjula Bose, J.
1. This suit has been instituted by one Sitaram and Shyam Sun-dar Bhartia as joint owners inter alia for possession of 18 rooms in premises Number 75, Cotton Street, Calcutta more fully described in the plaint, mesne profits from July 24, 1959, until delivery of possession, an enquiry into damages if necessary, interest and costs.
2. The case of the plaintiffs in the plaint in short is that one Omkarmal Bhartia the father of Gourishankar, Hari-shankar and Shivshankar Bhartia the present defendants Nos. 1, 11, and 13 had an undivided half share in the said premises. Upon his death in July 1951, the said property devolved or passed by survivorship to his widow Jaydeyi Bhartia one of the original defendants since deceased, and his said three sons and several grandsons by his eldest son Gourishankar. On or about July 14, 1952, the defendant No. 1 for self and as Karta of a joint Hindu family consisting of himself, his sons, his brothers Hari-shankar, Shivshankar and his mother Jaydeyi Bhartia, for valuable consideration and for legal necessity and benefit of the joint family sold their undivided half share in the said premises to Messrs. Lionel Edwards Private Ltd., hereinafter referred to as the defendant company. It is further alleged that the defendant company on April 22nd, 1953, caused a suit being suit No. 1195 of 1953 to be instituted for partition of the said premises (Lionel Edwards Pvt. Ltd, v. Sitaram Bhartia and Ors.) and a preliminary decree was passed therein. The Commissioner of Partition having found the premises incapable of being partitioned by metes and bounds in accordance with the shares declared, by a conveyance dated September 25, 1958, the defendant company conveyed its said share in the said premises to Sitaram Bhartia the original plaintiff No. 1 herein, for valuable consideration. Sitaram Bhartia, died intestate on February 25, 1964, and cm his death his heirs and legal representatives along with the plaintiff No. 2 became the joint owners of the said premises. It is alleged that the defendant No. 1 for self and as Karta of his branch and the other defendants except Shivshankar Bhartia and the defendant company are in wrongful occupation of 18 rooms in the said premises and in spite of demands have not vacated the same. No relief is claimed against Shivshankar and the defendant company who have been, made pro forma parties to the proceedings.
3. Gourishankar and Harishankar the defendant No. 1 and the original defendant No. 13 (sic) filed a joint written statement alleging that at the time of the said conveyance dated July 14, 1952 the said defendants along with their youngest brother Shivshankar incurred debts in respect of their business carried under the name and style of Messrs. Omkarmal Bhartia. It is further alleged that the conveyance had been executed for a consideration far below the prevailing market price of the said share of the property at the instance of one Gopi Kishen Khemka the father-in-law of Shivshankar, and a director of the defendant company who held the controlling interest in the said company. The said conveyance it is alleged was executed on the express understanding and promise by the said Khemka representing the defendant company that the defendants Gourishankar, Harishankar and Shivshankar, their respective children and wives would be entitled to reside in the said premises during the lifetime of the defendant No. 1 and the original defendants Nos. 2, 13, 14 and 15 without paying any rent or charges for such occupation. The subsequent conveyance dated September 25, 1958 is alleged to be subject to the arrangement referred to hereinabove.
4. Jaydeyi the widow of Omkarmal Bhartia filed a separate written statement as well as an additional written statement. She denied that the sale of the share of the said premises to the defendant Company was for proper or adequate consideration and alleged that the debts of the defendant No. 1 were immoral and of an illegal nature and that there was no legal necessity for the sale. It is alleged further that she was compelled to execute the said conveyance without receiving any consideration therefor under the undue influence and duress on the part of her three sons who had incurred heavy debts in speculative transactions in their business and that the father-in-law of her youngest son viz., Gopi Kishen Khemka was in a position to dominate her will. It is further alleged that the defendant No. 1 threatened to commit suicide if she did not execute the conveyance. The said conveyance was never intended to be acted upon nor was in fact acted upon. It is alleged that the conveyance is invalid, inoperative and unenforceable against her. It is alleged further that Sitaram acquired nothing under the conveyance dated September 25, 1958.
5. Smt. Debi Bhartia also since deceased, the wife of Gourishankar filed a voluntary statement as the guardian ad litem of the then minor defendants, 3, 4, 5, 6, 7, 8, 9, 10 reiterating in substance what was stated by Jaydeyi in her written statement and alleging that the said conveyance of July 14, 1952 was not binding on the minors as it was executed under undue influence and misrepresentation. It is alleged that there was no legal necessity for the alleged sale and that the three sons of Omkarmal Bhartia had incurred heavy debts for purely speculative and wagering transactions and also for other immoral purposes and that the conveyance was for a consideration far below the market price. It is further alleged that Smt. Jaydeyi Bhartia the widow of Omkarmal Bhartia and her three sons were induced to execute the conveyance under the influence of the late Gopi Kishen Khemka, father-in-law of the youngest son Shivshankar on the representation that the deed would never be acted upon. It is denied that Sitaram acquired any right under the conveyance dated September 25, 1958.
6. The defendant company in its written statement supported the plaint in substance.
7. Mr. S. A. Murshed, the Guardian ad litem of the added minor defendant No. 2 Anil Bhartia, a son of Gourishan-kar, filed a voluntary statement inter alia alleging that there was no legal necessity for the alleged sale, and that the conveyance dated July 14, 1952 was executed for the repayment of illegal and/or immoral debts of the defendant No. 1. It is further alleged that this minor defendant was born in or about 1963 and the alleged conveyance executed prior to his birth was not binding on him. It is contended that no right was acquired by the original plaintiff No. 1 under the deed dated September 25, 1958 against the minor defendant and that the suit is barred by limitation.
8. The brief of documents prepared for the perusal of the Court was tendered by consent and marked Ex. 'B' and 'C', formal proof of the documents therein being dispensed with. Other material exhibits are Exbt. '001' being the evidence of Smt. Jaydeyi Bhartia on commission including the conveyance dated July 14, 1952; Ext. '002-003' being marked portions of the books of accounts of M/s. Omkarmal Bhartia, Exbt. 'D' being the records of Suit No. 2830/52 (Hari Shankar Bhartia v. Gouri Shankar Bhartia) Ext. 'E', being the affidavit in reply of Gouri Shankar Bhartia affirmed on 3-6-1960 in Insolvency Case No. 24 of 1954 and Exbt. 'A' the report of Mr. K. C. Pal Engineer and Valuer.
9. The following issues were settled at the hearing :--
1. Was the conveyance dated July 14, 1952 executed on the understanding and/ or promise of Gopi Kishen Khemka and/ or Lionel Edwards Ltd. as alleged in paragraph 3 of the written statement of Gouri Shankakr Bhartia and Hari Shankar Bhartia?
2. Was the conveyance dated the 25th September, 1958 subject to the said arrangement or contract with Messrs. Lionel Edwards Ltd. as alleged in paragraph 5 of the written statement of Gouri Shankai Bhartia and Hari Shankar Bhartia?
3. Is the conveyance dated the 14th July, 1952 not binding on the minor defendant No. 2 and the then minor defendants Nos. 3--10 as alleged in paragraph 3 of the voluntary statement filed on their behalf?
4. Is the suit barred by limitation as against the added defendant No. 2 Anil Bhartia?
5. Is the suit bad for non-joinder of the daughters of Jayadeyi Bhartia since deceased?
6. To what relief, if any are the plaintiffs entitled?
10. Subsequently, at the argument stage, two further issues were raised on behalf of Anil Bhartia, the added minor defendant No. 2 as follows:--
7. Is the suit maintainable in its present form?
8. Does the plaint disclose any cause of action?
11. Biswanath Bhartia, son of Sitaram was examined De Bene Esse by the plaintiffs. His evidence shortly is that the firm of Messrs. Omkarmal Bhartia was a family business dealing in jute, hemp and jute goods. After Omkarmal's death in 1951 the business was being carried on by his three sons and the family was maintained out of its income. In 1952 price of jute fell sharply, there was a big slump and the firm which was storing a huge stock suffered severe loss. On July 14, 1952, Omkarmal's branch sold their undivided share in the said premises as they required funds to pay off their creditors. The sale was effected with the knowledge, consent and approval of the members of the family. Bhag-wan Das and Satyanarayan the brothers of Omkarmal were also present at the execution of the conveyance. He denied that Jaydeyi was coerced in any way to execute the Deed. No undue influence was exerted upon her nor was there any threat of suicide by anyone. The money was required for paying the debts and meeting the losses of the family business. The transactions involved were not speculative and were in the usual course of business. There was no immoral purpose in the incurring of the debts. In 1958 his father Sitaram Bhartia, purchased from the defendant company the undivided half share of the premises against an indemnity bond furnished by the company. After such purchase a notice to vacate was issued on Omkarmal's branch. They did not vacate the Baid premises nor paid any amount for occupational charges from 1958. In cross-examination, he stated that the property was sold to his father at a lesser price as it was undivided. In 1952, the firm 'Omkarmal Bhartia' had a number of creditors including the Bank, who were pressing for payment.
12. K. C. Pal, an Engineer, was also examined De Bene Esse by the plaintiff. His evidence briefly is that in 1963 he had surveyed the said premises in the occupation of the defendant No. 1 and his branch for the purpose of ascertaining the reasonable rent thereof. He was furnished a plan of the said premises and measured some of the rooms after verifying the plan and finally submitted a report which was tendered as Ex. 'A'. According to the said report the reasonable rent of the portion of the said premises in the occupation of the defendant No. 1 and his branch would be Rs. 2000/-per month,
13. In cross-examination, he stated that his field book was not available and that his calculations were on the basis of rent received in the tenanted portions of the said premises as also on that of a lease between Sitaram and one Radhe-shyam Banks. He submitted that his conclusion was based on the statement at rents furnished by Bhuramal and that this was the only occasion when he had measured rooms in the Burabazar area.
14. The evidence of Jayadeyi was taken on commission in March 1968 and tendered as Ex. 001.
15. She volunteered that she did not understand any language other than Marwari. Sixteen years ago, her eldest son Gourishankar caused her to put her thumb impression and cross marks on a document at the house of her daughter by threatening to take poison. The document was not explained to her and she did not know the contents thereof. No one was present at the time. She did not consult any lawyer either before or after executing the document and did not have independent advice. She did not know either the defendant company nor the firm of Omkarmal Bhartia nor had she received any money from either of them. She did not know that the plaintiffs had filed the suit impleading her nor does she know what the suit is about. She is a pardanashin lady.
16. In cross-examination she volunteered that her eldest son had wasted properties by indulging in Fatka transactions and races (Q. 48). She admitted having put her thumb impression on the document. She was not aware whether she had filed a written statement. She stated that she was not on talking terms with her eldest son Gourishankar although living in the same house. She was initially unwilling to put her signature on the document as she was aware what the document was about (Q. 94). Later, she contradicted herself and stated that she did not know that the document related to the house and she refused to sign the same as she was not aware of contents (Q'ss. 100-101). She came to know about the sale of the house 6 or 7 years ago, when she found the deed lying in her room. She sent her munim to a lawyer to ascertain what the document was about and thus came to know it related to the house. She did not know who was looking after suit on her behalf. She could not identify her advocate on record who was present at the Commission. She did not know who engaged him. She admitted that she had occasion to sign a document in court. When asked in what language the document was explained to her she states she knew only the Marwari language. She could not state anything as to the rents collected and taxes payable in respect of the said premises.
17. Shyam Sundar Bhartia, the present plaintiff No. 1 deposed in support of the plaintiffs case. He stated that business of 'Omkarmal Bhartia' suffered a loss due to the slump in 1952 during the Korean war. The business consisted mostly of export of jute and hemp. Liabilities were incurred and payments became due to the Bank. Jay-deyi knew both Hindi and the Marwari languages. Omkarmal's half share in the said premises was sold to the father-in-law of his youngest son. G. K. Khemka, the Chairman of the defendant company wanted to help his son-in-law. Sitaram subsequently purchased the half share of the said premises from the defendant company.
18. The next witness for the plaintiff was Bhuramal Lakkar, an employee of Sitaram for the last 35 years. He knew the firm of Omkarmal Btiartia. After Omkarmal's death, his sons used to look after the business of the firm. In 1952, due to the market price of jute suddenly going down, the firm suffered a loss. Omkarmal's half share in premises 75, Cotton Street was sold to the defendant company. The premises having been found incapable of partition by metes and bounds in the partition suit filed by the defendent company its half share therein was sold to Sitaram in 1958. He was acquainted with Jaydeyi the wife of Omkarmal and used to visit the residence of Omkarmal on occasions like Holi, Dewali etc. Jaydeyi knew both Marwari and Hindi languages. He was present at the registration of the conveyance exe-cuted in favour of Sitaram,
19. In cross-examination he stated that he had ceased to be in the employment of Sitaram's family for the last two years. Omkarmal's sons dealt in jute and hemp. He had never seen Gourishankar visiting the race course.
20. The defendant Harishankar stated in his evidence that his father Omkarmal carried on business in packing and baling of jute and hemp until 1951, under the firm name of Omkarmal Bhartia. In answer to a leading question he stated that the business was that of a registered partnership firm and its partners were Mongilal Mahatma, Gourishankar and Omkarmal. He stated further that he and his youngest brother Shivshankar joined as partners in his father's place, twelve days after the father's death. A heavy loss was incurred, due to Gouri-shankar's gambling in faces and indulging in Fatka transactions. After some time they sold the said premises to pay off creditors. A cheque for Rs. 1,30,000 was paid by the defendant company to the partnership firm before the sale. The cheque was deposited in the firm's overdraft account with the Lloyds Bank. He denied that there was any joint family business. At the time of Omkarmal's death the amount due in the market by the firm of Omkarmal Bhartia including the dues of Bank on the overdraft was nearly 1 crore.
21. In cross-examination he stated that 12 months after Omkarmal's death the partnership was dissolved. On July 16, 1952, Suit No. 2830 of 1952 was filed by him and his youngest brother Shivshankar against Gourishankar for partition. No claim was made against 75, Cotton Street Calcutta in that suit as the said property had been sold prior thereto. Gourishankar in his written statement accepted the list of properties given in the plaint as belonging to the joint family. The said suit was ultimately not proceeded with. All speculative and wagering transactions were made by Gourishankar in his own name (Q. 211). In the partition suit the business of M/s. Omkarmal Bhartia had been referred to as a joint family business as he had signed the pleading at the instance of G. K. Khemka and he had verified everything true to his knowledge although it was not so. He admitted that in the deed dated July 14, 1952 the business had been referred to as a joint family business and that the said deed recorded that the sale was voluntarily made for proper consideration for family requirements. No fresh deed of partnership was executed after his father's death. The racing and the Fatka transactions were carried on by Gourishankar personally and not by the partnership. To repay the heavy debts of the business of Messrs. Omkarmal Bhartia the deed of sale was executed. For involving the partnership in the gambling and fatka transactions resulting in liability he had quarrels with Gourishankar and had not been on speaking terms with the latter. The sale was effected on the advice of G. K. Khemka. He could not explain how he came to join Gourishankar in filing a joint written statement without making any allegations against the latter.
22. Gourishankar stated in his evidence that Omkarmal had been carrying on business in jute, hemp, and jute goods under the name and style of Omkarmal Bhartia in partnership with one Mongilal Mahatma, and himself. Omkarmal had 9 annas, he had 5 annas and Mongilal had 2 annas share in the said firm. The partnership was registered. After Omkarmal's death his two younger brothers joined as partners in place of Omkarmal and the four partners came to have equal shares. He had stored a huge quantity of jute, hemp and jute goods in the business when the market was hit by a slump resulting in huge loss. The bank which had advanced money sold the stock at a low price and instituted suit for the balance. There were other creditors whose dues could not be paid. G. K. Khemka advised that the half share of the said premises should be saved by selling the same to him, on the understanding that so long as they would be alive, the three brothers along with their respective families would be entitled to reside in the said premises. The document Ex. 'B' dated June 28, 1952 had been written by him to the defendant company as he was under a pressure to pay off dues. A further understanding was arrived at with Khemka prior to the sale that as soon as funds could be collected the property would be resold to them. At the tune of execution of document, a sum of Rupees 1,30,000/- was paid by cheque drawn in favour of M/s. Omkarmal Bhartia. The balance of Rs. 10,000/- was not received. The said cheque was deposited in the overdraft account of the firm with the Lloyds Bank. The price mentioned in the document was not the proper price of the half share of the undivided property which would be at least Rs. 3 lakh. The defendant company did not ask them to vacate nor collected rent from the tenants since the purchase,
23. He came to know that the said half share in the property had been sold to Sitaram from a notice of Khaitan & Co. dated July 1959 (P. p. 10, Ex. 'A'). Prior thereto Sitaram did not demand possession of the said premises. Sitaram was aware of the arrangement with Khemka. Only Rs. 1,15,000/- was paid by Sitaram to the said company as price of the said half share as he knew of the defendant's right to reside in the said premises during the lifetime of the three brothers. He and his brothers and their respective families were presently in occupation of the disputed portion of the said premises with leave and license from G. K. Khemka.
24. In cross-examination he stated that his mother became angry with him and was not on speaking terms with him until her death. He had never heard her speak in Hindi (Q. 81). He had asked Jaydeyi to affix her thumb impression and put her cross mark in the deed of conveyance dated July 14, 1952. When Jaydeyi enquired as to what the document was about he stated to her 'if you do not execute I may go to prison or commit suicide'. The document was so executed at Jhautala at his sister's house and nobody except himself was present. The loss was suffered by the partnership firm on account of Fatka transactions.
25. Mr. R. P. Banerjee, learned advocate for the defendants Gourishankar and Harishankar contended that the assurance given by Mr. G. K. Khemka for the defendant company and the understanding arrived, that the three brothers along with their respective families would be entitled to live in the said premises during their lifetime is binding on Sitaram who was all along aware of the same. Because of such assurance, the same half share was purchased at a lesser sum in 1958 and an indemnity bond taken from the defendant company. He contended further that the suit for recovery of possession having been filed in July 1959 was barred by limitation. The letter of demand pretended to revoke the licence granted to save limitation. The assurance given by, or arrangement arrived at with G. K. Khemka only permitted occupation by the defendants and did not encumber the property as no interest in the property was created. Therefore the sale was made free from encumbrance and was not contrary to the terms of the sale deed. The understanding or arrangement being subsequent to the conveyance dated July 14, 1952 was not hit by Section 92 of the Evidence Act. He contended that a licence if coupled with a grant for a period of time, became irrevocable until the expiry of that period. In support of this contention he cited Arpan Ali v. Jnanendra Kumar Pal Chowdhury, reported in (1945) 49 Cal WN 346 and Muhammad Ziaul Haque v. Standard Vacuum Oil Co. reported in (1951) 55 Cal WN 232.
26. Mr. S. Mitra, learned advocate for the added minor defendant No. 2, cited Mulla's Hindu Law, 13th Edition, Article 226 p. 299, for the proposition that when a coparcener alienated his undivided half share to another coparcener or a stranger, the coparcenary would not be automatically dissolved, and that the rights of the coparcener would subsist until partition by metes and bounds. He submitted further that unless partition was first asked for, no suit for possession of a property owned by a joint Hindu family would lie. He cited Venkatammal v. Sinha Venkatrama Chettiar reported in : AIR1975Mad316 for the proposition that alienation by a coparcener of his undivided share entitled the alienee only to claim partition and allotment of the coparcener's share. He next contended that no relief in this suit has been claimed against Shivshankar and possession by one coparcener is possession on behalf of all the coparceners.
27. He further contended that the suit was premature as admittedly an indemnity bond had been furnished by the defendant company in favour of Sitaram and that there being no legal necessity for the sale the same could not bind the minor son. He further contended that it had not been proved that Jaydeyi had executed the conveyance dated July 14, 1952, nor was it established that the document was explained to her or that she had independent legal advice before she executed the same. Therefore the conveyance was invalid. It was lastly contended that the married daughters of Jaydeyi were necessary parties to the suit, and as they have not been impleaded the suit has abated. In support of this proposition Raghunandan Singh v. Rambalak Singh reported in : AIR1964Pat206 was cited. The following passage from Mulla's Hindu Law 13th Edition at pages 859 and 860 was also relied on.
'As the daughter is an heir to the property of the intestate including the dwelling house, she is a necessary party to a suit or appeal relating to the dwelling house and non-impleading of her would result in abatement.'
28. He also cited State of Punjab v. Nathu Ram reported in : 2SCR636 , Sri Chand v. Jagdish Pershad Kishan Chand reported in AIR 1966 SC 1427, Ramagya Prasad Gupta v. Murli Prasad reported in : 1SCR63 and Union of India v. Ram Charan reported in : 3SCR467 on the question of abatement. He submitted that the effect of non-joinder of a necessary party in the suit was a pure question of law and a specific issue having been raised the absence of the plea in the written statement was of no consequence.
29. He next contended that Anil Bhartia the added minor defendant No. 2 was a necessary party to this suit. Though he was born in 1963 no steps were taken to implead him until the death of his mother. He was brought on record only as the heir of his mother but not within the time prescribed by law.
30. Mr. B. K. Ghosh and Mr. S. Deb learned advocates for the defendants Nos. 3 to 10 in term submitted that there was no evidence that the conveyance dated July 14, 1952 had been explained to Jaydeyi or that she had understood the contents thereof. The evidence was that she did not know English and it was incumbent that the contents of the conveyance, would be explained to her. The person if any, who explained the deed which was admittedly in the English language had not been called and as such the deed remained unproved. It had also to be considered whether the sale was for a legal necessity and whether the defendant company acquired any title whatsoever to the half share of the said premises. From the evidence of Harishanker and Bhura-mal it appeared that the sale was for meeting the debts of the partnership and not those of the joint family. No one except Gourishankar was present when Jaydeyi executed the document and she was coerced to do so under threats of Gourishankar taking poison. Neither the Registrar nor the attesting witnesses nor the person who explained the document to Jaydeyi were stated to be present. Jaydeyi an illiterate person did not understand either English or Hindi and had put her thumb impression on the document at the instance of Gourishankar. It was thus not a voluntary execution on her part. In her written statement Jaydeyi might not have challenged the deed on the aforesaid grounds but it was open to her heirs to agitate the said grounds and contend that title did not pass. It also remained to be established that the said property was sold for anv legal necessity so as to bind her heirs. It was also contended that the daughters of Jaydeyi had not been impleaded and that Anil the defendant No. 2 was also not brought on record immediately upon his birth in 1963 but long after when the suit was barred by limitation as against him.
31. For the proposition that the onus of proving legal necessity was on the purchaser a decision of the Privy Council in Bhagwan Singh v. Bishambar Nath reported in AIR 1940 PC 114, was cited. On validity of documents executed by Pardanasin and illiterate woman the decisions in Kali Baksh Singh v. Ram Gopal Singh reported in (1914) 41 Ind App 23 (PC) and Hodges v. Delhi and London Bank Limited reported in (1900) 27 Ind App 168 (PC), Mt. Farid-un-nisa v. Munshi Mukhtar Ahmad reported in AIR 1925 PC 204, Mati Lal Das v. Eastern Mortgage & Agency Co. Ltd. reported in (1921) 25 Cal WN 265 (PC) and Smt Sonia Parshini v. Moula Baksha reported in : AIR1955Cal17 were cited. In the last case a deed of sale had been executed by an illiterate woman without independent advice. A Division Bench of this Court held that the transaction would be subject to the same zealous scrutiny of the court as where an instrument is executed in similar circumstances by a Pardanasin lady. It was submitted that the plaintiffs not only had failed to discharge the burden of proof that the said deed had been explained to and understood by Jaydeyi but had further failed to establish that there was any legal necessity prior to the said sale or that any enquiry was made in respect thereof. The same being pure questions of law absence of such allegations in the written statement of Jaideyi made no difference.
32. It was contended that though pleaded in the written statement of the defendant company that all reasonable and necessary enquiries were made as to the existence of legal necessity prior to the transaction, no evidence was adduced on this aspect. On the other hand, six years after the first sale at Rs. 1,40,000/- an indemnity bond had to be taken therefor from the defendant company. This indicated that the property had been sold initially without any legal necessity. It was further contended that there was an averment in the written statement by Sitaram in the earlier partition suit being suit No. 1195 of 1953 that the original alienation was not for legal necessity. By such admission the plaintiffs were estopped from alleging anything to the contrary. Sarat Chunder Dey v. Gopal Chunder Laha reported in (1892) 19 Ind App 203 (PC) was relied upon in support of the aforesaid contentions.
33. Rai Ganga Pershad Singh Bahadur v. Ishrai Pershad Singh reported in (1918) 22 Cal WN 697 (PC) was also cited for the proposition that an attesting witness had in fact to see the attested document being signed and otherwise its execution will not be valid. It is argued in the instant case no attesting witness had been called and the evidence of the executant corroborated by Gourishankar and Nandalal was that no witness was present when she executed the deed. M. L. Abdul Jabbar Sahib v. H. Venkata Sastri and Sons reported in : 3SCR513 , Harinath Ghosh v. Nepal-chandra Choudhury reported in (1937) 41 Cal WN 306 Vikram Chandra Das v. Sudhir Chandra Jana reported in AIR 1938 Cal 30 and Arjun Chandra Bhadra v. Kailash Chandra Das reported in (1923) 27 Cal WN 263 were cited in this context. The absence of valid attestation was not required to be pleaded specifically in view of the general allegation that the deed was not valid,
34. It was next contended that the deed of sale is not binding on the defendants Nos. 3 to 10, the minors, as the same was procured through fraud, undue influence and misrepresentation and was not executed on account of any legal necessity. The debts were 'avyava-harika debts' of the defendants Gouri-shankar, Harishankar and Shivshankar incurred on speculative transactions and immoral purposes and therefore were not binding on the minors. The evidence was that Gourishankar squandered money on race and fatka transactions which caused the partnership to suffer loss and incur debts. Such debts could not be foisted on the joint family and/ or its assets.
35. On the law as to legal necessity the following passage from Mulla's 'Principles of Hindu Law', 14 Edition, page 302; was cited:--'the actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it, in the particular instance, is the thing to be regarded.....'. The following passsage at P. 306 was also cited:--'Where the Manager of a joint Hindu family sells, mortgages joint family property, the purchaser or mortgagee is bound to inquire into the necessity for the sale or mortgage and the burden lies on the purchaser or mortgagee to prove either that there was a legal necessity in fact, or that he made proper and bona fide enquiry as to the existence of such necessity'. It was submitted that under Order 6 Rule 13 of the Code of Civil Procedure and Section 68 of the Indian Evidence Act the plaintiffs had to prove the existence of legal necessity.
36. Learned Advocates for the plaintiffs contended in their turn that the only defence of Gourishankar and Harishankar in their joint written statement is that the sale price was inadequate and that the conveyance dated July 14, 1952, was executed on the express understanding and representations made by Mr. G. K. Khemka of the defendant company that the three brothers during their lifetime would reside with their respective families in the said premises. In paragraph 3 of their written statement they had specifically relied upon the Conveyance dated July 14, 1952 for ascertainment of its true scope and effect and thereby bound themselves to the recitals therein contained. It was also submitted that possession was claimed by the defendant company by filing a partition suit, immediately after the sale and that the consistent conduct of the parties revealed that the sale was a genuine one and was acted upon as such, by all concerned. The oral assurance as alleged it is submitted are afterthoughts, not recorded in any correspondence up-till 1959 vide Exbts. 'B' and 'C'. In any event it Is submitted that any such assurance being in variation with or contrary to the Deed dated July 14, 1952 would come within the mischief of Section 92 of the Indian Evidence Act and would not be admissible in evidence. The decision in Dungarmal v. Shambhu Charan reported in : AIR1951Cal55 and Rowland v. Administrator General reported in AIR 1938 PC 198, were cited in this context.
37. On Issue No. 3 it is urged that the recitals of the conveyance dated July 14, 1952 furnish evidence that the sale was for legal necessity. Iswar Gopal Jieu Thakur v. Pratapmal Bagaria reported in : 2SCR332 , was cited for the proposition that recital of legal necessity in a sale deed has great evidentiary value if unquestioned for a long period. The decision in Smt. Rani v. Smt. Santa Bala Debnath reported in : 2SCR603 , was also cited for the proposition that if absence of legal necessity is within the knowledge of the person who challenges the sale and he withholds that, then the recital in the Deed assumes great importance.
38. In the instant case it was contended that in spite of the defendant company acting upon the sale and instituting proceedings for partition and sale if necessary, the Deed at all material times remained unchallenged. In the letters dated June 28 (Ex. B page 1) and July 1, 1952, (Ex. C, page 1) it was categorically recorded that money were required for meeting the liabilities of the joint family business. In the partition suit Ext. 'D' filed by Harishankar and his brothers Shivshankar against Gourishankar it was not disputed that the business was a joint family business. A Full Bench decision of the Rajasthan High Court in Ram-dayal v. Bhanwarlal reported in, was cited for the proposition that the manager of a joint Hindu family has power to alienate for value joint family property so as to bind the interest of both adult and minor coparceners provided the alienation was for legal necessity and for the benefit of the estate. It was also contended that alienation even if without legal necessity was only voidable and not void and in support thereof Ragubanchmani Prasad Narain Singh v. Ambica Prasad Singh reported in : AIR1971SC776 , was relied upon. It was contended that no steps had been taken at any material time to avoid the sales. Therefore, the Deed dated July 14, 1952 in favour of the defendant company is binding on the defendants, and the subsequent sale in favour of the original plaintiff No. 1 the basis of the present suit also remained unchallenged.
39. It is next contended that defendants' story of a partnership should not be accepted as there were neither any pleading nor any issue thereon. Further, the case of a partnership had not been suggested to any witness and no deed of partnership nor entries in the Register of firms were tendered in evidence though it was alleged that the partnership was registered and had been constituted by a deed.
40. The case of a partnership moreover, was contrary to the stand of the defendants in prior legal proceedings where it was averred that the business was a joint family business. In the application for appointment of a receiver, it was common case of the brothers that the firm was a joint family firm (Qs. 230 of Harishankar and 570 of Gourishankar). In the Insolvency proceedings Gourishankar stated in his affidavit (Ex. E) that the transaction in question was valid.
41. For the proposition that the minor sons not only had to prove the immoral character of the transaction leading to the debt but also that the purchaser had notice that they were so tainted, Luhar Amrit Lal Nagji v. Doshi Jayantilal Jethalal reported in : 3SCR842 was cited. S. M. Jakati v. S. M. Brokar, reported in : 1SCR1384 , was also cited for the proposition that debts incurred due to mismanagement or negligence of the father were not immoral debts.
42. It was next contended that the validity of the execution of the Deed by Jaydeyi was not in issue, as the execution of the document and the validity thereof had never been disputed by Jaydeyi in her written statement. Jaydeyi in fact had admitted execution and had specifically stated that she put her thumb impression and cross marks thereon (Q. 7, 45, 55, 56, 94 and 223). This was corroborated by Gourishankar -- (Q. 86 and 87).
43. On the question of limitation as against the added minor defendant No. 2 Anil Bhartia it was contended that the suit being one for recovery of immovea-ble property acquired by purchase and based on title was not governed by Article 65 of the Limitation Act. Where the period was 12 years from the point of time when possession became adverse to the plaintiff. Time could not begin to run till the minor defendant would commence to enjoy the property openly and adversely to the plaintiffs exclusively in favour of himself.
44. As to non-joinder of the daughters of Jaydeyi it is contended that as the mother had divested herself of her property during her lifetime the daughters ceased to have any interest therein. The plaintiffs had only claimed possession against persons in actual wrongful occupation. It was for the daughters to take steps to be joined as parties and if it was their case that the sale was a viodable transaction, it was up to them to take appropriate proceedings to set aside the same. Jaydeyi during her lifetime never asserted title to the property, even after she had notice of this suit. On the other hand, nobody had denied or was interested to deny the plaintiffs' title to the said premises. In fact, even the title of the defendant company had never been challenged by anyone and as such there was no question or occasion for the plaintiffs to establish their title. Jaydeyi's heirs could not have a better title than that of Jaydeyi during her lifetime.
45. It was next contended that if the Deed dated July 14, 1952 was not dislodged and could not be dislodged in the absence of a claim for setting aside the Deed then Jaydeyi must be held to be a trespasser simpliciter, and there could be no succession to the property through her. If on the other hand it was held Jaydeyi did not execute a valid document of sale the plaintiff's suit was bound to fail and the nonjoinder of any necessary party would be of little significance. It was further contended that there was no pleading that Jaydeyi had died leaving her daughters as her heirs and legal representatives and that Issue No. 5 ought to be deleted. The cause of action in this suit was trespass and not for a declaration of title, as such, it was not necessary for the plaintiffs to implead persons not in possession. In support of the above contentions Devidas v. Shri-shailappa reported in : 3SCR896 , Ganosh Ch. Nandy v. J. N. Chatterjee and Bros, reported in (1966) 70 Cal WN 676, Tarapada Mandal v. Hazia Khatoon Bibi, reported in : AIR1956Cal625 and Laxminarain Mulchand Kothari v. Vithal-das Kanhaiyalal reported in : AIR1962MP31 were cited.
46. On the authority of Ramesh Chan-dra v. Tulshi Ram reported in : AIR1974All88 , Daya Ram v. Shyam Sundari reported in : 1SCR231 , Dolai Maliko v. Krishna Chandra Patnaik reported in : AIR1967SC49 ; Harihar Prasad Singh v. Balmiki Prasad Singh reported in : 2SCR932 and Smt. Kamala Dutta v. Bal-lygunge Estate reported in : AIR1974Cal75 , it was contended that all possible contentions having been raised by the defendants on record, and fraud, collusion or conspiracy not being alleged nor established, the absence of a party was not fatal to this suit. It was contended that the entire undivided interest of the defendants in the said premises having been purchased no question of partition could arise as the plaintiffs as between themselves had become the absolute owners of the said premises jointly.
47. On mesne profits, it was contended that Mr. K. C. Paul has proved An-nexure 'B' to the plaint on the basis of his report Ex. 'A'. Mesne profits at Rs. 2,000/- per month should be allowed from the date of purchase 14-7-58 and/or from the date of institution of the suit.
48. Mr. P. K. Mallick, learned Advocate for the defendant company, submitted that no relief had been claimed against his client in this suit and no proceedings were initiated challenging the validity or otherwise of the transaction entered into by the defendant Company. On the contrary, execution of the first conveyance in favour of the defendant company stood admitted in the several written statements filed by the Bhartias. The only plea was that the executants had a right of residence at the said premises by virtue of an arrangement. The defendant company admittedly purchased the property in 1952 and sold the same in 1958 with indemnity. In the circumstances the company was not called upon to adduce any evidence in support of its transactions. The validity, attestation and registration of the Sale Deed was thus never in issue,
49. I have carefully considered the respective submissions of the parties. Although an attempt has been made to prove undue influence exercised by Gourishankar on his mother Jaydeyi compelling her to execute and register the sale Deed, no evidence worth the name was adduced to show that in fact there was any misrepresentation or undue influence or fraud resulting in the execution or registration of the Deed dated July 14, 1952 and I do not accept Gourishankar's and Jaydeyi's evidence on this point.
50. It was expressly recorded in the Deed that in consideration of Rs. 1,30,000/-paid on July 1, 1952 and the balance Rs. 10,000/- paid at the execution thereof, the property was conveyed to the purchaser. Such payments were admitted by Harishankar. The burden of proving that the entire consideration was not received by the vendor and/or that the consideration was inadequate lay upon the defendants which they failed to discharge. They did not prove that the market price at the relevant time was higher than the price received.
51. The case of assurances or agreement or arrangement whereunder the defendants along with their family members were allowed to reside in the said premises appears to be afterthoughts of Gourishankar and Harishankar to avoid ejectment. Such a case is totally unacceptable for, inter alia, the following reasons :--
(a) Any such agreement on behalf of the Company is contrary to the tenor of the Deed dated July 14, 1952 which enjoined the defendants to deliver peaceful and quite possession to the purchaser;
(b) Such agreement or arrangement is not corroborated by any resolution of the defendant company;
(c) Such agreement or arrangement entered upon ostensibly to protect the interest of family members was not recorded nor acted upon;
(d) The suit for partition caused to be filed by the defendant Company (Suit No. 1195 of 1953), and the admitted position that G. K. Khemka made separate arrangements for his son-in-law's residence immediately after the sale are patently contradictory to any such alleged agreement or arrangement;
(e) Oral evidence of such agreement or arrangement sought to be adduced and suggestions thrown to the witnesses of the plaintiffs are clearly hit by Section 92 of the Indian Evidence Act and as such inadmissible.
(f) The case of such agreement or arrangement is inherently improbable and inconsistent with the documentary evidence on record both ante and post sale and is further demolished by the assertions of Gourishankar from the box that there was a further understanding with Khemka prior to the execution of the sale deed that the premises would be re-conveyed to them as soon as funds would be collected, (Q. 32).
52. It has been strenuously contended that since Jaydeyi's daughters have not been impleaded, the suit abates in its entirety and is not maintainable. issue No. 5 was raised by the defendants in this regard. But there is no averment in the pleadings that Jaydeyi died leaving daughters as her legal heirs and representatives. The plaintiffs have filed a suit for possession and the relief is claimed against the defendants in occupation. No relief has been claimed against Shiv-shankar and/or the defendant company as admittedly they are not in possession. It is nobody's case that Jaydeyi's daughters or any of them were in possession of the said premises. Even if impleaded as parties after Jaydeyi's death, no relief was necessary to be claimed against them. At best they may be said to be proper and not necessary parties. Jaydeyi had not only filed her written statements but had deposed in support of her case. Her daughters if substituted as defendants as her heirs could not have taken up any new defence. The position might have been otherwise if the suit had been filed for declaration of any title.
53. In the circumstances and for the reasons as stated above I hold that the suit being one for possession, the fact that some heirs of one of the defendants who admittedly are not in occupation of the property and against whom no relief need be claimed were not impleaded cannot affect the suit. This is so particularly when Jaydey's other heirs namely her sons and grandsons against whom the relief of possession is sought are already on record. The other insur-mountable difficulty in the defendant'sway in urging this point is that the cause of action is trespass, and the same does not survive against the daughters who admittedly are not in possession.
54. On the status of the business of Omkarmal Bhartia, I have no hesitation in rejecting the defendant's case of a partnership. This was a new case made at the hearing by way of departure from the pleadings. No issue was raised on this aspect. In the earlier partition suit (Ex. 'D') filed by Harishankar and Shiv-shanker against their eldest brother Gourishankar, the business was admitted to be a joint family business, and a Receiver was appointed over the books of accounts on that basis. In the Insolvency proceedings (Ex. 'E') the business was also admitted by Gourishankar to be a joint family business. By reason of the aforesaid both Harishankar and Gourishankar are now estopped from urging, that the business was carried on in part-nership. The evidence of Gourishankar as to the interest of the parties in tha business before and after his father's death is also inconsistent and incompatible with the case of partnership. The partnership was alleged to be a registered firm yet, neither the partnership deed nor any entries from the Register of Firms were produced and tendered.
55. On the other salient aspect as to whether the defendant's undivided half share in the said premises was caused to be sold for legal necessity and for tha benefit of the joint family estate the same appears to have been amply proved by the following :--
(a) The three major sons of Omkarmal Bhartia deceased and his widow Jaydeyi appear to have voluntarily participated in execution of the sale Deed of July 14, 1952.
(b) It is not the case of the defendants that the said Deed was executed under any compulsion, by Harishankar and Shivshankar. Therefore, Harishankar and Shivshankar must be presumed to have joined in the execution of the Deed to pay off a legitimate debt of the joint family business;
(c) Gourishankar's evidence is that all speculative business was done by him in his own name, (Qs. 213-215) which was also corroborated by Harishankar (Qs. 210, 211).
(d) Harishankar admitted the correctness of the recitals in the deed as also statements made in the partition suit filed by him that the firm's business was a joint family business. Biswanath Bhartia corroborated the aforesaid;
(e) The dues in the overdraft account have been shown to be liquidated by the said sale, such dues have not been shown to have been incurred for any immoral purpose. It is not established that the debt is tainted with any immorality;
(f) No proceedings were initiated at any material time to set aside the Deed Of July 14, 1952;
(g) The admitted case of the defendants being that the property had to be alienated to discharge the debts of the business of Omkarmal Bhartia in its overdraft account with Lloyds Bank Calcutta as such it cannot be seriously questioned that by such repayment to the Bank, a benefit was conferred upon the joint family or that the estate benefited thereby;
(h) The Deed of July 14, 1952 has been attested by witnessess who are solicitors and officers of this Court. It is endorsed in the Deed that its contents were explained to Jaydeyi and further that she was identified before the Registering authorities, when she put both her thumb impression and cross mark on the Deed. That she put her thumb impression and cross mark on the deed is also admitted by her in evidence. Such attestation and/ or identification has never been questioned contemporaneously. The evidence of Jaydeyi, Gourishankar and Nandlal Baj-oria her grandson, to the contrary is not acceptable and it would be unsafe to rely upon the same and come to any conclusion. I also do not believe that the attesting witnesses Mr. Sailendra Chan-dra Sen, Solicitor and Mr. Himangshu K. Dutt Solictor, (who also identified the lady) misused the confidence reposed in them and became parties to the bringing into existence a Deed containing false recitals with the object of defrauding the defendants, nor was such a case suggested;
(i) Bhagawandas Bhartia and Satya-narayan Bhartia were confirming parties to the Deed which also indicates that relations outside the immediate joint family accepted the responsibility of confirming the necessity for the sale; I am satisfied that challenges to the validity of the Deed dated July 14, 1952 by the minor sons is at the instance of their father Gourishankar, to resist the claim of possession. Similar desperate attempts by the grandmother to make out a case that she executed the deed on compulsion and without knowledge of its contents is also unacceptable.
56. The doctrine of pious obligation of Hindu sons to repay their father's debts also stands in the way of the sons in chal-lenging the sale. Even it it is held that the sale was not for legal necessity it cannot be held that the payment on an overdraft account to the Bank is a debt repugnant to good morals and as such an 'Avyavaharik debt', namely a debt which a respectable and decent man ought not to have incurred. I do not accept that the balance due on the overdraft account was on account of the profligate life alleged to have been led by Gourishankar or on account of his participation in gambling and wagering.
57. Harishankar took upon himself, the onus of establishing Gourishankar's reckless manner of life and even went to the extent of deposing that since the sale of the property, he has not been on speaking terms with his brother. Significantly enough he was unable to explain how he filed a written statement jointly with Gourishankar if his case be true. In any event, his evidence is that Gouri-shankar entered into speculative transactions in his own name and that the business of Omkarmall Bhartia never participated in such transactions. It further appears to me that Jaydeyi is a tutored witness and her evidence is entirely unacceptable. Her statements that she had never heard of the defendant company or that she did not know the firm of Omkarmal Bhartia are patently incorrect and improbable. When asked why she had volunteered that she knew no language other than Marwari (Q. 71) she stated 'I wanted to convey I did not sell this house'. This statement is also unworthy of any credence. The Deed was explained to her by Himangshu K. Dutta a solicitor of this Court. Her written statement filed in this suit was explained to her by an interpreter of this Court and it is not her case that this was done in Marwari language. I also reject her evidence that she did not know the contents of the Deed till it mysteriously found its way into her room, six or seven years ago whereupon she ascertained from her lawyer the contents thereof. Even thereafter, no steps were taken by her to challenge the Deed. She did not know who was looking after the present suit on her behalf. All this indicates that Gourishankar is behind the scene, actively pursuing the matter on her behalf behind the veil of a 'Pardana-shin Lady' as this Court is asked to believe. In the absence of any plea in Jaydey's written statements that she did not know the contents of the document and in the absence of any issue, I accept the contentions of the plaintiffs and the defendant company and hold the plaintiffs were not called upon to adduce any evidence on that score. The various decisions cited on this aspect have no application in the facts and circumstances of the instant case.
58. In the order of the Appeal Court dated June 24, 1977 it was recorded there was no abatement of the suit. The death of Debi Bhartia was also recorded. The minor defendant No. 2 Anil Bhartia was allowed to be added as a party, keeping open the question of limitation. It is in that context alone that it is to be considered whether the same was done beyond time and if so, the consequences thereof.
59. The suit being one for possession simpliciter, in my opinion death of one of the defendants does not cause the suit to abate and the right to sue survives and merely recording the death of the defendant Debi Bhartia under Order 22 Rule 2 as was done in the instant case was sufficient. In any event the point is concluded by the order of the Appeal Court. Admittedly, the minor defendant No. 2 was born in 1963, and he was added as a party to the proceedings in 1977 and it was not a case of substitution. In the absence of any fraud or collusion and other similar circumstances it cannot be said that there has not been a fair trial by omitting to bring on record a legal representative of the deceased or by non-joinder of a party. This in my opinion is not fatal to the suit, particularly when the other heirs are on record. The minor defendant No. 2 has been added as a party. There can be no question of the suit being barred within 12 years from the birth of the minor defendant. A minor in my opinion can never set up a possessory title adverse to the interests of the true owners till he attains majority. Article 65 of the Limitation Act has no application to the facts of the case. A claim of adverse possession by denial of the title of the true owners, has to be continuous public and by way of assertion of a right. Fur-ther such claim has neither been pleaded nor proved by the minor defendant who is bound by the evidence of his father Gourishankar and uncle Harishankar to the effect that the brothers with their respective families had permissible occupation by virtue of the arrangement and/or assurance relied upon and there was no assertion of adverse possession to the knowledge of the real owners. It is also the unchallenged evidence of Bis wanath that since 1958, the original plaintiff No. 1 and his brother Shyam-sundar as joint owners had been appropriating and utilising the rents collected from the tenants of the premises and paying the taxes therefor without any reference to Onkarmal's branch.
60. The decisions cited on behalf of the minor defendant to establish that the suit is not maintainable, by reason of nonjoinder of Jaydeyi's daughters have no relevance in the context of the facts and circumstances of the present suit. The plaintiffs being the absolute owners of the premises jointly, no question of partition can arise.
61. The evidence of Sri K. C. Pal, surveyor, as to the reasonable letting out value of the premises in the occupation of the defendants is however not acceptable to the Court. He conceded fairly that his calculations were based on alleged collections made from other tenants. He also admitted that he had no experience in assessing what could be the reasonable rent for accommodation in the particular area and that this was the solitary occasion for him to measure rooms in the Burrabazar area was also admitted by him.
62. For the reasons aforestated, I answer the issues raised as follows:--
3. The conveyance dated July 14, 1952 was for legal necessity and is binding on the minor defendants.
6. The plaintiffs are entitled to a decrea tor possession and mesne profits against all the defendants except the defendant Company and Shivshankar Bhartia who are admittedly not in possession and have been joined as pro forma defendants.
63. There will be a decree for possession in terms of prayer (b) of the plaint. There will also be a preliminary decree directing an enquiry for mesne profits from the date of institution of the suit until possession is delivered, against all the defendants except the defendant Company and Shivshankar Bhartia.
64. I appoint Mr. Rabi Goho, Barrister-at-Law, Special Officer to enquire into the damages suffered by the plaintiffs for such wrongful occupation by the defendants other than the Company and Shiv-shankar Bhartia of portions marked in Annexure B to the plaint, at a fee of 20 gms, per sitting of 2 hours. The Special Officer will have liberty to appoint a stenographer, clerk and Interpreter. The Special Officer will file his report by 30-4-1979. The plaintiffs will also be entitled to interest and interim interest at 6% per annum on all sums from when the same be found due and payable by the defendants is possession as also the costs of the suit. All costs incurred by the minor defendant No. 2 will be paid by the defendant No. 1. The defendant No. 1 will pay a further fee of 60 gms, to Mr. S. A. Murshed Barrister-at-Law as his fees for acting as guardian ad litem in those proceedings in addition to sums already paid. The plaintiffs will pay and bear the costs of the reference including the fees of the Special Officer in the first instance but will be entitled to add the same to their claim herein. The defendant company will pay and bear its own costs. Operation of the decree is stayed till March 12, 1979 as prayed for.