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Chuni Lal Haldar Vs. Srimati Makshada Debi and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in52Ind.Cas.309
AppellantChuni Lal Haldar
RespondentSrimati Makshada Debi and ors.
Cases ReferredBhairab Chandra Dutta v. Benoy Chandra Dutta
Excerpt:
probate and administration act (v of 1881), section 90 - permission to sell granted to hindu widow--sale, validity of, as against reversioner--order granting permission, whether can be questioned in land acquisition proceedings. - .....president of the tribunal under the calcutta improvement act, 1911. the respondents are mikhoda debi, claimant no. 5, and upandra nath sen, claimant no. 8. by a declaration dated 16th february 1915, 5 cottas 3 chittaks and 4 square feet of land were acquired under the act, the total compensation awarded being rs. 4,588-0-8. the property originally belonged to kali charan haldar. he had three sons, raj kumar, krishna kishore and the appellant. both the two first are dead. makhoda debi is the widow of krishna kishore. on 8th march 1884 makhoda debi obtained letters of administration to her husband's estate from the district judge of the 24-pergannas. on 1st april 1890 she further obtained from the district judge under section 90 of the probate and administration act, 1881, leave to sell.....
Judgment:

1. This is an appeal by Chuni Lal Haldar, claimant No. 6, and arises oat of apportionment proceedings before the President of the Tribunal under the Calcutta Improvement Act, 1911. The respondents are Mikhoda Debi, claimant No. 5, and Upandra Nath Sen, claimant No. 8. By a declaration dated 16th February 1915, 5 cottas 3 chittaks and 4 square feet of land were acquired under the Act, the total compensation awarded being Rs. 4,588-0-8. The property originally belonged to Kali Charan Haldar. He had three sons, Raj Kumar, Krishna Kishore and the appellant. Both the two first are dead. Makhoda Debi is the widow of Krishna Kishore. On 8th March 1884 Makhoda Debi obtained Letters of Administration to her husband's estate from the District Judge of the 24-Pergannas. On 1st April 1890 she further obtained from the District Judge under Section 90 of the Probate and Administration Act, 1881, leave to sell certain property of her husband, including his one third in the land now acquired, for not less than Rs. 2,000. On the following day she sold all except one of the properties, which she had permission to sell, to Chandra Kishore Sen, the predecessor-in-interest of claimant No. 8. The property thus sold amounts to 1 cotta 8 chittaks and 25 square feet of the land now acquired and is represented by the sum of Rs. 1,151-0-8, part of the Rs. 4,585-0-8. The appellant maintained that the sale was good only for the life of Makhoda Debi and he asked that this sum might be dealt with under Section 32 of the Land Acquisition Act. The President decided against him and ordered payment of the Rs. 1,151-0-8 to claimant No. 8. Hence this appeal.

2. For the appellant six contentions were urged:

(1) That claimant No. 8, having purchased from a Hindu widow and having adduced no evidence of legal necessity, was only entitled to the property so purchased for her life.

(2) That the President erred in holding that the permission to sell was sufficient to prove the validity of the sale against the reversioner.

(3) That the reversioner as a third party was not bound by the order of permission to sell granted in his absence.

(4) If the order is to be taken as relieving the purchaser from proving legal necessity, it must be shown that the District Judge considered it.

(5) That the order of permission was without jurisdiction, inasmuch as Makhoda Debi had at the date of the order ceased to be administratrix.

(6) Assuming that the District Judge could make the order, the transaction of sale was in fraud of the reversioner, and the order fraudulently obtained from the Court on suppression of the true facts and by false representations, of all which the purchaser was well aware.

3. The first two grounds are concluded against the appellant by the decision in Kamikhya Nath Mukerjee v. Hari Churn Sen 26 C. 607 : 13 Ind. Dec. (n.s.) 990 and it was argued that that decision is not correct, that it is opposed to the principles of Hindu Law, and that it had not been followed. It transpired that the learned Pleader used the last expression not in its ordinary sense, that the decision had been since considered by other Benches of this Court who had declined to follow it, but that he had been unable to find any subsequent reported decision in which it had even been cited. It stands in the reports as the decision of this Court and we are bound either to accept and follow it, or, if we doubt its correctness, to refer the question to a Full Bench. This we are certainly not prepared to do, as we are in full agreement with it. To hold otherwise would be to introduce an unwarrantable qualification into the express provisions of the Probate and Administration Act with regard to Hindu widows. There is nothing in that Act which would justify a differentiation between the powers of an administratrix who happens also to be a Hindu widow and heiress of her husband and those of any other administrator under the Act.

4. The next three contentions of the appellant question the propriety of the order of the District Judge allowing Mokhada Debi as administratrix to sell the property. It is not open to the appellant in these proceedings thus to go behind the order, nor can we review the order to see if in the circumstances it was correctly made. For instance in ground (5), the appellant suggests that the order was without jurisdiction because the applicant was then no longer administratrix. It must, however, be presumed that the District Judge satisfied himself on that point before making the order in her favour as such administratrix. The case cited by the learned Pleader for the appellant [In the goods of Nursing Chander Bysack 3 C.W.N. 635] shows how the Court will examine the matter. We cannot presume that the District Judge failed in his duty in this respect or in his consideration of the other matters on which he had to be satisfied before he could properly make the order. As was pointed out in Bhairab Chandra Dutta v. Benoy Chandra Dutta 43 Ind. Cas. 804 : 46 C. 70 : 22 C.W.N. 520 : 21 C.L.J. 395, 'the propriety of an order or decree made in a cause, in which the Court has jurisdiction, cannot be challenged collaterally.' That general principle may well be applied in a case like the present, where the appellant is seeking in land acquisition proceedings to go behind an order of the District Judge passed in his probate jurisdiction some 28 years ago.

5. The sixth and last contention impugns the District Judge's order as vitiated by fraud. It is questionable whether the appellant can so impugn the order in these proceedings, but assuming that he could do so, it is sufficient to say that we entirely agree with the learned President that no case of fraud has been made out in this case, and, in particular the appellant has completely failed to show that the purchaser was in any way privy to it. There were no distinct allegations by the appellant of the fraud charged and the arguments on his behalf appeared to rest on vague suggestions made against a third party.

6. The appeal fails on all points and is dismissed with costs to the respondents who have appeared. Hearing-fee four gold mohurs to claimant No. 8 and two gold mohurs to claimant No. 5.


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