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Khetra Mohan Mitra Vs. Sm. Nalini Bala Dassi and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1932Cal828
AppellantKhetra Mohan Mitra
RespondentSm. Nalini Bala Dassi and anr.
Cases ReferredAdwaita Chandra v. Krishnadas
Excerpt:
- .....incurred by the applicant herself. this is only an attempt to get round the necessity of proving legal necessity in order to sell the property. the application is not bona fide and is rejected.3. as already stated jatindra's mother died in 1919. between 1916 and 1923 the widow and the plaintiff reversioner were occupied with quarrels and litigation over the property. there was a criminal case by the widow against the plaintiff alleging assault and dispossession in which she succeeded right up to the high court and an order under section 522, criminal p. c., was maintained. the plaintiff also filed a title suit which the widow had to defend, as also a suit by kamalamani a sister of jatindra. then on 9th july 1923, she again applied to the probate court as administratrix asking for.....
Judgment:

Pearson, J.

1. The facts out of which tills appeal arises are as follows: the plaintiff is one Khetra Mohan Mitra, the stop brother and reversionary heir of one Jatindra Nath Mitra who died childless in 1900. He left a widow Nalini Bala Dasi who is defendant 1, and his mother Matangini Dasi, who died in 1919. In December 1908, Nalini Bala as widow obtained an order for grant of Letters of Administration to her husband's estate. There was an objection by the reversioner, but the grant was made on her furnishing security for Rs. 1,000 'binding her to maintain those entitled to maintenance from the estate and to keep intact the corpus of the estate.'

2. In January 1910, she first applied to the Probate Court for permission to sell the property, but apparently security-had not then been furnished, and the application was not allowed. An order was passed shortly after that all further applications with regard to the estate were to be heard in the presence of the objectors. In 1916 she made a fresh application for permission to sell, to which the present plaintiff objected. In the order refusing leave the Judge said:

there is no estate of the deceased to be administered for the sole heir is in actual possession. The debts to be paid are not the debts of the deceased, but incurred by the applicant herself. This is only an attempt to get round the necessity of proving legal necessity in order to sell the property. The application is not bona fide and is rejected.

3. As already stated Jatindra's mother died in 1919. Between 1916 and 1923 the widow and the plaintiff reversioner were occupied with quarrels and litigation over the property. There was a criminal case by the widow against the plaintiff alleging assault and dispossession in which she succeeded right up to the High Court and an order under Section 522, Criminal P. C., was maintained. The plaintiff also filed a title suit which the widow had to defend, as also a suit by Kamalamani a sister of Jatindra. Then on 9th July 1923, she again applied to the Probate Court as administratrix asking for permission to sell. The then District Judge thought it unnecessary to issue notice to any body having regard to the obstructive and litigious attitude adopted by the reversioner, and made the order granting permission, on condition that the debts are satisfied and the purchase money after satisfaction be invested in six per cent bonds in her name as administratrix and the securities produced for the Court's inspection within two months. The sale took place to defendant 2 on 17th August 1923. The present suit was filed some three years later in 1927 by the plaintiff, claiming that his reversionary right was not affected by the sale as being fraudulent and collusive and without consideration. He also contended there was no legal necessity first and that the permission granted by the District Judge was without jurisdiction, null and void, and was obtained by fraud. The first Court dismissed the suit holding that there was no fraud; that the Court had no jurisdiction to grant the permission, the administration having been completed; but that legal necessity for the sale had been established. The lower appellate Court did not go into the question of legal necessity, but upheld the conclusion of the first Court, holding that the order in question was passed on a full disclosure of facts and that there was no concealment and no fraud, that the Court had jurisdiction to make the order and that in the absence of fraud the third party purchaser was protected.

4. The findings of both Courts on the question of fraud being in defendant's favour, the main argument in the part of the plaintiff appellant before us has been that the order of the Court granting permission was without jurisdiction, that the purchaser could not take shelter behind it, and that it was therefore essential that the lower appellate Court for the proper decision of this case, should have tried and determined the issue of legal necessity for the sale. It was argued that the Court had no jurisdiction to make the order, because the administration was complete at any rate after the mother's death in 1919, after which the widow held possession of the estate in her title as heir and not as administratrix. Of the cases cited before us the case of Lakshmi Narain v. Nanda Rani [1909] 3 I. C. 287 points out that where the estate has been completely administered, no order under Section 90, Probate and Administration Act, is needed for the purpose of administration: no such order is appropriate or necessary: see also Adwaita Chandra v. Krishnadas [1917] 42 I. C. 933. Assuming however that the debts in this case were debts incurred by the widow and not debts of the estate and that the order was one that ought not in the circumstances to have been made that is not to say that the order itself is without jurisdiction in the sense that it was void outright from the beginning. As the learned District Judge says, it may have been an improper order, but the Judge had considered whether permission should be granted or whether the widow should be left to sell under alleged legal necessity. The order was one which the Judge as a Probate Court had jurisdiction to make and the order was not a nullity. The purchaser at the sale in pursuance of the order is consequently safe-guarded, since the existence of fraud has been specifically negatived throughout. In my judgment the decision of the lower appellate Court was right, and the appeal must be dismissed with costs.

Mallik, J.

5. I agree.


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