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Ganesh Chandra Bag Vs. Rashbehari Chakrabarti and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberSecond Appeal No. 1831 of 1969
Judge
Reported inAIR1978Cal486
ActsCode of Civil Procedure (CPC) , 1908 - Order 7, Rule 7; ;Specific Relief Act, 1963 - Section 42; ;Hindu Minority and Guardianship Act - Section 8
AppellantGanesh Chandra Bag
RespondentRashbehari Chakrabarti and ors.
Appellant AdvocateS.C. Mitter and ;Prabir Kr. Samanta, Advs.
Respondent AdvocateSushanta Kumar Kundu, Adv.
DispositionAppeal allowed
Cases Referred(Razia Begum v. Sahebzadi Anwar Begum). On
Excerpt:
- .....been found maintainable. the learned munsif found that the plaintiff was the real owner of the suit property. the learned munsif accepted the plaintiff's date of birth as 16-10-45 and consequently found that the suit was not barred by limitation. the learned munsif, however, holding an opinion that the plaintiff ought to have made a prayer in the plaint for cancellation of the document, found that the suit was not maintainable and dismissed the suit. being aggrieved, the plaintiff preferred an appeal before the learned district judge. the appeal was heard by the learned subordinate judge who affirmed all the findings of the learned munsif and dismissed the appeal. hence, the appeal by the plaintiff.4. mr. shyama charan mitter, learned advocate appearing on behalf of the appellant,.....
Judgment:

N.C. Mukherji, J.

1. This is an appeal against the judgment and decree passed by Sri S. K. Biswas, Subordinate Judge, 3rd Court, Midnapore, dated 13-6-68 in Title Appeal No. 682 of 1977 affirming those of Sri A. K. Sil, Munsif, 2nd Court, Tamluk, dated 27-9-67 in Title Suit No. 287 of 1965.

2. The plaintiff is the appellant in this Court. The plaintiff seeks a declaration to the effect that the kobala described in the 'Kha' schedule to the plaint in favour of the defendants Nos. 1 to 3 in respect of the suit land is fraudulent and collusive and as such not binding upon the plaintiff. The plaintiff also prays for permanent injunction restraining the defendants Nos. 1 to 3 from interfering with the plaintiff's possession of the same. According to the plaintiff 'Ka' sch. lands along with other lands belonged to the plaintiff's grand-father Trailokya. His son was Sudhir, The plaintiff is the eldest son of Sudhir. Sudhir had two sons who predeceased the plaintiff. Defendant No. 4 is the second wife of Sudhir. The plaintiff and his father used to stay with Trailokya who was affectionate to them. Trailokya subsequently executed a registered deed of Arpannama on 12th Baisakh, 1356 B.S. in favour of the plaintiff transferring 'Ka' schedule and other lands and delivered possession thereof. The plaintiff was born on 15-10-45. (sic) As the plaintiff was a minor Sudhir used to possess on behalf of the plaintiff. It is asserted that the suit land exclusively belonged to the plaintiff and that the plaintiff's father had no interest. After attaining majority the plaintiff came to learn that defendants Nos. 1 to 3 fraudulently got a kobala executed in their favour from his mother in respect of the 'Ka' schedule land. It is further asserted that his mother had no power to dispose of the property belonging to him during his minority. The plaintiff has treated the sale as void after attaining his majority.

3. Defendants Nos. 1 to 3 contested the suit. Their contention is that the plaintiff was a mere benamdar of his father Sudhir in respect of the deed of gift, that they purchased the suit land for a consideration of Rs. 6,000 as the plaintiff's mother was in utter need of money for defraying the expenses in connection with the criminal case started against her and for satisfying certain debts of the plaintiff's father and also for purchasing some land of her choice. Since purchase the defendants are in possession of the suit land. It was also stated that the plaintiff was born on 14-1-44 and attained majority on 14-1-62. Objection with regard to the maintainability of the suit and that the suit is barred by limitation were also raised. With regard to maintainability of the suit the learned Munsif found that the defendants' kobala must be held as a voidable deed as the transfer of a minor's property was made without permission of the court and as such in violation of Section 8 of the Hindu Minority and Guardianship Act. But the learned Munsif was of opinion that the document must be avoided before the plaintiff gets any relief in the suit and in the instant suit as the plaintiff did not make any prayer for setting aside the deed the suit, as framed, was not maintainable. With regard to the question whether the plaintiff's mother sold the property for legal necessity the learned Munsif finds as follows :-- 'I am unable to hold that Durgamoni sold the plaintiff's property for legal necessity. The plaintiff would have, therefore, got a decree for setting aside the sale deed but for his making failure to make such a prayer in this suit. In the above view of the matter, the plaintiff therefore cannot get a decree for a declaration as prayed for by him.' On the question of possession the learned Munsif finds 'strong probability to hold that the plaintiff is in possession of the suit land'. After finding such, the learned Munsif held that the plaintiff would have been entitled to the permanent injunction had the suit been found maintainable. The learned Munsif found that the plaintiff was the real owner of the suit property. The learned Munsif accepted the plaintiff's date of birth as 16-10-45 and consequently found that the suit was not barred by limitation. The learned Munsif, however, holding an opinion that the plaintiff ought to have made a prayer in the plaint for cancellation of the document, found that the suit was not maintainable and dismissed the suit. Being aggrieved, the plaintiff preferred an appeal before the learned District Judge. The appeal was heard by the learned Subordinate Judge who affirmed all the findings of the learned Munsif and dismissed the appeal. Hence, the appeal by the plaintiff.

4. Mr. Shyama Charan Mitter, learned advocate appearing on behalf of the appellant, submits that both the courts below have found that the plaintiff was the real owner of the suit property, that the plaintiff's mother had no power to transfer the suit property during the plaintiff's minority as no permission of the court was obtained, that the sale was not for legal necessity, that the plaintiff was in possession of the suit property, that the plaintiff was born on 16-10-45 and so the suit was not barred by limitation. But both the courts below on an erroneous view of the law held that the suit was not maintainable as the plaintiff did not make any prayer in the plaint for cancellation of the kobala executed by the plaintiff's mother in favour of defendants Nos. 1 to 3. Mr. Mitter contends that the courts below ought to have held that there was no necessity for the plaintiff to make a prayer for setting aside the kobala. Mr. Mitter refers to the prayer portion of the plaint where the plaintiff prays that as the plaintiff had right, title and possession in 'Ka' schedule property of the plaint the kobala described in 'Kha' schedule in favour of defendants Nos. 1 to 3 should be declared as wholly fraudulent, collusive, without consideration, not binding upon the plaintiff and a nullity. The plaintiff also prayed that the defendants Nos. 1 to 3 should be permanently restrained from interfering with the plaintiff's possession in respect of the suit land. Mr. Mitter contends that this being the clear case of the plaintiff there was absolutely no necessity for the plaintiff to make a further prayer for cancellation of the document The plaintiff has in clear term prayed for a declaration that the document is fraudulent and collusive and not binding upon the plaintiff and he has further prayed for a declaration that the document is a nullity. In support of his contention that in such a case it is not at all necessary to add a prayer for cancellation of the document. Mr. Mitter relies on a decision reported in (1906) ILR 33 Cal 257 (Harihar Ojha v. Dasa-rathi Misra). In this case the reversion-ers sued to recover certain property, which had been alienated by Hindu widow, the alienations having been made by deeds of sale, on the ground that they were made without legal necessity, it was held that 'as the sale deeds were not supported by necessity and the reversioner had not elected to assent to them it was not necessary to set them aside'. Mr. Mitter contends that when the plaintiff has prayed for a declaration that the document is not binding upon the plaintiff and that the document should be declared as a nullity then a separate prayer for cancellation of the document is not at all necessary and the court has full discretion in such a case to pass an order for cancellation of the document, if it feels that such an order is necessary. The next case relied on by Mr. Mitter has been reported in : AIR1952Mad552 (Ponnammal v. Kantham-mal) in support of his contention that as the plaintiff was not a party to the kobala it is not necessary for him to pray for a declaration for cancellation of the document. It has been held in this case that 'a person who is not a party to a decree or a document is not bound to sue for its cancellation. In fact, it is logically impossible for a person who is not a party to a document or to a decree to ask for its cancellation.' In coming to such a conclusion his Lordship relied on a Full Bench decision of the same Court reported in AIR 1940 Mad 113. Mr. Mitra next refers to a decision reported in (1948) 52 Cal WN 389 it has been held in this case that 'where the person seeking cancellation of an instrument is a party thereto, he may have to show that the instrument is void or Voidable against him under one or other of the relevant sections of the Indian Contract Act. But it is clear from the illustrations to Section 39 of the Specific Relief Act, 1877, that a person who is not a party to an instrument may sue to have it adjudged void against him and the provision of the Contract Act cannot apply to him, a stranger to the contract.' Mr. Mitter seeks reliance on several other decisions, such as, AIR 1929 Mad 366; ILR 54 All 812 : (AIR 1932 All 485) (FB); AIR 1940 Pat 133; (1905) ILR 29 Bom 207; ILR 5 Luck 235 : (AIR 1929 Oudh 491); ; AIR 1933 All 495; : AIR1967MP221 and : AIR1972Ker71 (Santha v. Cherukutty). In this case no sanction of the court was taken for the alienation by the mother acting as the guardian of the minor and, therefore, it was held that there was plain violation of Section 8(2) of the Hindu Minority and Guardianship Act, 1956. It was further held that 'consequently Section 33 is attracted and the disposal of the property, even though by a natural guardian, becomes voidable at the instance of the minor'. It was further held that 'when a minor is entitled to avoid a transfer effected by his guardian on the ground of absence of permission of the court, it becomes a nullity on its unilateral act. He can merely avoid by his conduct and there is no need to file a suit for voiding the transfer. From any of these provisions, read in the light of : AIR1962Ker164 (FB) it follows that the alienation in question is voidable at the minor's instance rather he can treat it as void without the assistance of the Court.' Mr. Mitter submits that if the minor can treat the alienation as void without the assistance of the court, then it follows that in a case where he has taken assistance of the court and has prayed for a declaration that the document is not binding on him and the same is a nullity it is not at all necessary for him to make a further prayer for cancellation of the document and only for omission to add such a prayer in the plaint cannot make the suit non-maintainable.

5. Mr. Susanta Kumar Kundu, learned advocate appearing on behalf of the respondents, on the other hand, submits that the document is only voidable and it is perfectly within the rights of a minor after attaining majority to avoid the deed. But in such a case he must make a prayer for cancellation of the document otherwise it is submitted that a suit is not maintainable and both the courts below have rightly held that the suit was not maintainable. Mr. Kundu placed before me 3 decisions. The first one has been reported in 48 Cal WN 49 : (AIR 1943 PC 94) (Humayun Begam v. Shah Mohammad Khan). In this case it has been held that 'other relief in the proviso to Section 42 of the Specific Relief Act means 'other relief against the defendant against whom the declaration is sought. One of the reasons for the proviso is to protect the revenue from a suit being brought without payment of the proper ad valorem court-fee'. This case, in my opinion, has no application to the facts of the present case. In the present case there is no question of avoidance of payment of court-fee. The plaintiff has sought for a declaration and also for consequential relief, namely, permanent injunction and has paid court-fee both on declaration and also on consequential relief. The only relevant consideration is whether the plaintiff was bound to make a prayer in the plaint seeking for cancellation of the document. Mr. Kundu next relies on a decision reported in (1935) 39 Cal WN 250 (Radha Sundar Roy v. Saktipada Roy). In this case, it has been held that 'a suit under Section 39 of the Specific Relief Act for a declaration that the deed executed by the plaintiff is void or voidable with a prayer for cancellation of the same and n'otification thereof to the sub-registrar falls within Section 7, Clause (iv) (c) of the Court-fees Act.' This decision also does not help the respondent as admittedly there is no prayer for cancellation of the document and as such the question of payment of court-fee for such a declaration does not arise. The last decision on which Mr. Kundu relies has been reported in : [1959]1SCR1111 (Razia Begum v. Sahebzadi Anwar Begum). On going through the decision I find that the facts of the case are entirely different from the facts of the present case and the principle enunciated in the said decision does not apply in the present case. On a consideration of the facts and circumstances and bearing in mind the legal position I am of opinion that in the present case it is not at all necessary for the plaintiff to make an additional prayer for a declaration for cancellation of the deed and that being so, I am of further opinion that both the courts below were wrong in holding that the suit was not maintainable. As all other points have been found in favour of the plaintiff, the plaintiff must get a decree as prayed for.

6. In the result, the appeal is allowed on contest. The judgments and decrees passed by the courts below are set aside. The suit is decreed. It is declared that the plaintiff has right, title and interest in respect of the 'Ka' schedule property and the kobala described in the 'Kha' schedule property in favour of the defendants Nos. 1 to 3 is fraudulent, collusive and not binding upon the plaintiff and is a nullity. The defendants Nos. 1, 2 and 3 are permanently restrained from interfering with the plaintiff's possession in the suit property. There will be no order for costs in this appeal. The parties will bear their respective costs in the courts below.


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