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Ram Charan Sanyal Vs. Anukul Chandra Acharjya - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata
Decided On
Judge
Reported in(1907)ILR34Cal65
AppellantRam Charan Sanyal
RespondentAnukul Chandra Acharjya
Cases Referred and Hurbai v. Hiraji Byramji Shanja
Excerpt:
mahomeden law - guardian--guardian of property--mother's power to sell her minor children's estate--alienation by de facto guardian for the benefit of the minor. - .....executed a kistbundi bond in favour of the plaintiff. mati died. he left an adult son tamij pramanick, a minor son pauchoo pramanick, his widow billoo bibi, and a daughter named sakhi bibi. the case is governed by mahomedan law, and they were his heirs and heiresses. before the institution of a suit by the plaintiff, to which i will refer in a moment, tamij pramanick and the widow billoo bibi, acting not only for herself, but purporting to act as guardian of her minor son panchoo, sold the property now in dispute to defendants nos. 1 to 4. subsequently to this transfer and purchase, the plaintiff instituted a suit to enforce his bond and he was successful in the appellate court. he then sought to execute that decree as a creditor against the property, which is now in dispute; but.....
Judgment:

Francis William Maclean, C.J.

1. The facts material for the decision of the present appeal may he thus shortly stated. One Mati Pramanick executed a kistbundi bond in favour of the plaintiff. Mati died. He left an adult son Tamij Pramanick, a minor son Pauchoo Pramanick, his widow Billoo Bibi, and a daughter named Sakhi Bibi. The case is governed by Mahomedan law, and they were his heirs and heiresses. Before the institution of a suit by the plaintiff, to which I will refer in a moment, Tamij Pramanick and the widow Billoo Bibi, acting not only for herself, but purporting to act as guardian of her minor son Panchoo, sold the property now in dispute to defendants Nos. 1 to 4. Subsequently to this transfer and purchase, the plaintiff instituted a suit to enforce his bond and he was successful in the Appellate Court. He then sought to execute that decree as a creditor against the property, which is now in dispute; but by reason of an objection, which was raised by the present defendants Nos. 1 to 4, that claim was dismissed; and the plaintiff brought, as he was entitled to do, the present action for the purpose of obtaining execution in respect of the property. His case is, so far as the minor's share is concerned, that the sale by the mother as guardian of the minor Panchoo was not voidable, but void, and consequently that no estate in the property in dispute passed to defendants Nos. 1 to 4. These defendants, however, say that, as between themselves and the plaintiff, the sale was perfectly good, and that the minor Panchoo, who is a defendant and is properly represented in this suit by a guardian ad litem, never raised any objection as to the validity of the sale, I think it is an important feature in the case that the validity of this transaction is not impeached by the minor, but is impeached by a stranger, a creditor of Mati Pramanick. But put ting that aside, the question is whether the sale to defendants Nos. 1 to 4 was good and valid. Both Courts have dismissed the plaintiff's suit. He now appeals to us, and his appeal is mainly based upon a decision of this Court in the case of Moyna Bibi v. Banku Behari Biswas (1902) I.L.R. 29 Calc. 473. No doubt that decision is one in his favour, and if that case had stood alone, there might have been seme difficulty in our path in dealing with the case. I have previously felt some doubt as to the soundness of that decision. But I am relieved from any difficulty by a subsequent decision by one of the learned Judges, who was a party to the earlier decision--the other Judge has left the Court--in which I think I may fairly say that the views expressed in that case of Moyna Bibi v. Banku Behari Biswas (1902) I.L.R. 29 Calc. 473 are markedly modified. I am referring to the case of Mafazzal Hosain v. Basid Sheikh (1907) I.L.R. 34 Calc. 36 ; C.L.J. 485 ; 11 C.W.N. 71 which is not yet reported, but a proof of the judgment in that case has been handed to us and I understand the ease is about to be reported. There all the authorities bearing on the present question are dealt with, and the view expressed in this latter case is one in which I concur. In my opinion, although under the Mahomedan law a mother is not the legal guardian of the property of her minor children, yet when she, as in the present case, acting as the de facto guardian, purports to deal with the property, and such transaction is for the benefit of the minor (both of which facts are found in the present case) it is difficult to say the transaction, in the absence of fraud or any other element of that nature, ought not to stand. The principles of justice, equity and good conscience support this view, and the more so when the minor, though a party to this action by a properly constituted guardian, is not complaining. This view is consistent with those expressed in the cases of Hasan Ali v. Mehdi Husain (1877) I.L.R. 1 All. 533, and Majidan v. Ram Narain (1903) I.L.R. 26 All. 22. The other cases, upon which reliance has been placed by the learned vakil for the appellant to-day, of Moyna Bibi v. Banku Behari Biswas (1902) I.L.R. 29 Calc. 473, Bhut Nath Dey v. Ahmed Hosain (1885) I.L.R. 11 Calc. 417 and Hurbai v. Hiraji Byramji Shanja(1895) I.L.R. 20 Bom. 116 have been distinguished in the case reported (1907) I.L.R. 34 Calc. 36 ; C.L.J. 485 ; 11 L.W.N. 71. I do not think I can usefully go in detail through those authorities again. We agree with the view taken by both the Lower Courts on this point.

2. The only other question is as to the share of the daughter Sakhi Bibi. But both Courts have found that she was never in possession of her share and that she repudiated her share, which in effect amounts to saying that she had no share.

3. The appeal, therefore, fails and is dismissed with costs.

Caspersz, J.

4. I agree.


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