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Protap Chunder Talukdar and anr. Vs. Kedar Prosunno Lahiri - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in(1893)ILR20Cal11
AppellantProtap Chunder Talukdar and anr.
RespondentKedar Prosunno Lahiri
Cases ReferredSuresh Chunder Wum Chowdhry v. Jugut Chunder Deb I.L.R.
Excerpt:
minor - suit in substance against minor--sale certificate, irregular description in--decree against widow representing her minor son--decree, sale of infant's share under--representation of minor in suit. - .....opinion that substantially the infant was sued, and that substantially execution was against the infant's share, the proceedings were binding against that share, and having regard to the terms of exhibit b and to the description under which he appears and his mother appears in that document, we think it impossible to doubt that substantially the suit was brought against the infant as co-defendant through his mother and natural guardian (supposing, as is probable, that she had not then been appointed under act xl of 1858) and that the sale was of the infant's share in pursuance of the decree. we think that the mode of description of rajmoni as heiress (which she was not, as her son was alive) must be taken to show that she was in a representative capacity when placed on the record. she.....
Judgment:

Pigot and Beverley, JJ.

1. We think, after having heard this matter debated with great care by the learned Counsel on both sides, that the view taken by the learned District Judge was erroneous as to the effect of the irregularity in the description of the infant in the sale certificate, Exhibit B, of the 6th of July 1874. It is not necessary to enter upon a minute examination of the authorities which relate to the subject. It is enough to say that the effect of them, and notably of the Privy Council case, Hari Saran Moitra v. Bhubaneswari Debi I.L.R. 16 Cal. 40 : L.R. 15 I.A. 195 and the Full Bench case, Suresh Chunder Wum Chowdhry v. Jugut Chunder Deb I.L.R. 14 Cal. 204 must at least be this, that if we are of opinion that substantially the infant was sued, and that substantially execution was against the infant's share, the proceedings were binding against that share, and having regard to the terms of Exhibit B and to the description under which he appears and his mother appears in that document, we think it impossible to doubt that substantially the suit was brought against the infant as co-defendant through his mother and natural guardian (supposing, as is probable, that she had not then been appointed under Act XL of 1858) and that the sale was of the infant's share in pursuance of the decree. We think that the mode of description of Rajmoni as heiress (which she was not, as her son was alive) must be taken to show that she was in a representative capacity when placed on the record. She is there described as mother of her infant son, name unknown, as we'll as widow and heiress of her deceased husband, and we think that, highly inaccurate and irregular as that description was, upon the old authorities as to the Code of Procedure of 1859 it must be taken that that was sufficient to bind the estate of the infant, and that we are not entitled on the ground of technical irregularities of this description to release his estate. In substance the suit was brought against the infant, the infant's share was sold under the decree, and we think, therefore, that the decision of the District Judge was, on this point, erroneous, and that it must be set aside and the decree of the Lower Court restored. The appeal will be allowed with costs throughout.


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