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Rabi Narayan Upadhyaya Vs. Kanak Prova Debi - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 1614 of 1960
Judge
Reported inAIR1965Cal444
ActsHindu Law; ;Limitation Act - Schedule - Article 44
AppellantRabi Narayan Upadhyaya
RespondentKanak Prova Debi
Appellant AdvocatePriya Nath Bhattacharyya, Adv.
Respondent AdvocateAmar Nath Choudhury, Adv.
DispositionAppeal dismissed
Cases ReferredKrishna Chandra v. Ratan Ram Pal
Excerpt:
- .....appeal is how tar a father as the natural guardian of a hindu minor son has power to sell the minor's estate for the benefit of the estate. 2. the point of law arises on the following facts: the plaintiff filed a suit for recovery of khas possession of the lands in suit and declaration or her title thereto in respect of 10 bighas of land in taluk debgram in the district of jalpaiguri. she filed the suit on the strength of her title by purchase on the basis of a registered deed of sale dated 21st febuary, 1945 executed by mahipal singh roy, the natural guardian and father of minor birendra kanta roy who was the owner of the lands in suit. the plaintiffs case is that she was in possession since the purchase but was dispossessed by the defendant appellant on or about the middle of.....
Judgment:

P.B. Mukharji, J.

1. The only point of law in this Second Appeal is how tar a father as the natural guardian of a Hindu minor son has power to sell the minor's estate for the benefit of the estate.

2. The point of law arises on the following facts: The plaintiff filed a suit for recovery of khas possession of the lands in suit and declaration or her title thereto in respect of 10 bighas of land in Taluk Debgram in the district of Jalpaiguri. She filed the suit on the strength of her title by purchase on the basis of a registered deed of sale dated 21st Febuary, 1945 executed by Mahipal Singh Roy, the natural guardian and father of minor Birendra Kanta Roy who was the owner of the lands in suit. The plaintiffs case is that she was in possession since the purchase but was dispossessed by the defendant appellant on or about the middle of Baisakh 1360 B.S. which will be about 10 years ago, i.e., about April 1933. She then instituted the suit on the 7th April, 1956.

3. The defence is that the defendants bought these self-same lands from Birendra Kanta Hoy when he attained majority and the sale on which the defendants relied was also a registered deed dated the 21st December, 1950. When the plaintiff, therefore, filed her suit for recovery of possession and declaration of her title, the defence taken was that the sale-deed on which she as plaintiff was relying was bad because the guardian had no power to sell the lands to her and the sale by the guardian was illegal and bad. The whole question turned in the lower Courts on the legal position of guardians and their right to alienate the minor's property for the benefit of the estate.

4. The other relevant facts for the purpose of deciding the question of law may also be stated briefly. It is found as a fact that these lands which were sold to the plaintiff were sandy, barren, useless and did not yield any income or profit. It is also found as a fact by both the Courts below that such barren, unprofitable and useless lands were, sold and the sale proceeds were invested in arable income-yielding and culturable lands. The evidence has proved that such profitable, arable andpaddy growing lands had in fact been purchased. The question, therefore, on the concurrent findings of both the Courts below is whether in the present facts the sale by the guardian on the 21st February, 1945 to the plaintiff was good and valid on the ground that it was for the benefit of the estate. Both the Courts held that it was so. On a careful examination of facts and law in this case I have come to the same conclusion and I have no hesitation in upholding the judgment under appeal. I shall state my reasons very briefly.

5. Mr. Bhattacharjee appearing for the appellant has drawn my attention to Mulla's Hindu Law, Twelth Edition, Article 528 at pp. 683 and 684. He has relied on the celebrated decision of the Privy Council in Hunooman Pershad v. Mt. Babooee, 6 Moo Ind App 39-3 at p. 423. Reference is also made by him to the decision of the Judicial Committee in Palaniappa Chetly v. Devasikamony Pandura, 44 Ind App 147 at p, 155: (AIR 1917 PC 33 at p. 37), and also to the observations in a decision of the Division Bench of this Court in Krishna Chandra v. Ratan Ram Pal, 20 Cal WN 645 at p. 647: (AIR 1916 Cal 840 at p, 842). Mr. Bhattaeherjee's main contention is that mere increase in the immediate income of the minor or of his estate docs not necessarily justify the inference that the particular transaction was for the benefit of the estate within the meaning of this Article of Hindu Law. Secondly he also submits that speculative development of the estate of a minor cannot come within the doctrine of benefit of the estate. These two submissions are sound and are unexceptionable.

6. But the whole question is--Was the present sale such a speculative venture or was it merely for the increase of income. The facts show that the sale does not come within the mischief of either of these two propositions. In the first place, the impugned sale was not merely for the increase of income. In fact the evidence shows that there was no income at all, the lands were sandy lands, utterly useless and barren and produced no yield. In fact from that point fit view it would not only be useless but onerous to retain the lands because the owner would have to pay rates and taxes in respect of such barren lands which would produce no benefit to him. Therefore, on the facts this is not a sale merely for the increase of income but can be said to be a sale to prevent loss to the estate. Secondly, the sale in the facts of this case cannot be said to be a speculative sale. The natural guardian, the father, was entering into no speculation. The evidence shows that he immediately invested the sale proceeds in purchasing arable paddy producing lands with income.

7. The 'benefit of the estate' is not a magic word. What is or is not for the benefit of the estate will depend on the facts and circumstances of the case under consideration. Whether a transaction is beneficial to the estate is a question of fact as the Privy Council has observed in 44 Ind App 147 at p. 155; (AIR 1917 PC 33 at p. 37)-

'It is impossible, their Lordships think, to give a precise definition of it (benefit of the estate) applicable to all cases, and they do not attempt to do so.'

Therefore, their further observations are that:--

'The preservation, however, of the estate from extinction, the defence against hostile litigation affecting it, the procussion of it or portions from injury or deterioration by inundation, these and such like things would obviously be benefits.'

These observations are only illustrative and were not intended to be exhaustive. In fact the Privy Council made this quite clear by the observation which followed immediately after these expressions when it said-

'The diificulty is to draw the line as to what are, in this connection, to be taken as benefits and what not.'

Now that has to be determined on the facts of each case. There can be no golden or fixed rule rigid enough to cover all cases. Each case has to be decided on its own facts and judged on its own merits. Broad general ideas are there to guide, but we are not concerned so much with broad general ideas because the expression 'benefit of the estate' is sufficiently plain but we have to apply the doctrine of 'the benefit of the estate' to the facts of each transaction that is impugned before the Court on this ground. No doubt the power of a Manager for an infant heir under the Hindu Law is 'a limited and qualified power' as pointed out by the Privy Council in 6 Moo Ind App 398 (PC), A Manager is nol an absolute owner and, therefore, he must act within limitation and qualification. Here again ihe finding of fact by the lower Appellate Court is that this transaction is one 'as any prudent Manager or guardian could make.'

8. Then: is one point which Mr. Bhattacherjee at one stage emphasised and I shall now make some reference to it. In order to challenge the sale on the facts he relied on the circumstance that the sale deed of the 21st February, 1945 showed that the consideration was only Rs. 200 while the sale-deed on which the appellant was relying dated the 21st December, 1950 was for Rs. 1,000. He wanted to utilise this difference in price in these deeds as proof to say that the guardian had not acted in the best interest of the estate or for its benefit. This point has no substance at all in the facts of this case. Rural land in Jalpaiguri and particularly near about Siliguri in 1943 was cheap and the land prices of Jalpaiguri and Siliguri in 1950 cannot be compared. The historic event of the partition of India and the huge influx of refugees and pressure of population on this land which began in 1947-1948 made the land prices in Siliguri and Jalpaiguri rise enormously high, so that the particular fact cannot be a proof that the transaction was not for the benefit of the estate.

9. For these reasons this appeal must fail.

10. I need only mention one significant feature in this appeal. A transaction such as this which is now being impugned by the appellant is not void in law but is voidable. The minor could have avoided the sale on attaining the majority, but he did not do so. The facts show that he certainly did attain majority by the 21st December, 1950 when he purported to make the second sale to the appellant. The position is this that on that date there was the first sale of the 21st February, 1945 on which the, plaintiff relied which was registered in the public Registry and as such was constructive notice to the whole world. Again the facts show that on the date of the second sale in 1950, the plaintiff was in possession of the property. Therefore, the present appellant had both the constructive notice of the registration of a prior document and the objective and physical notice of possession by somebody else other than the transferor. The learned Judge rightly points out that a transfer of the property by a guardian during the minority of a person is not ipso facto void but is only voidable at the instance of the minor or his representative in interest and that such a right must haw to be exercised within three years of attainment of majority by the minor in terms of Article 44, Schedule I to the Limitation Act. Now that has not been done. Three years from 1950 expired in 1953 and no suit was instituted either by the minor or by the present appellant as his representative-in-interest to avoid the sale of 21st February, 1945 by the guardian of the minor in spite of notice of such sale. The period has expired and it was only taken as a defence in this suit which was instituted on the 7th April. 1956. The appellant, therefore, can under no circumstances succeed.

11. The appeal is. therefore, dismissed with cost.


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