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Bimal Kumar Hui and anr. Vs. Sm. Purnima Dasi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1938Cal736
AppellantBimal Kumar Hui and anr.
RespondentSm. Purnima Dasi and anr.
Cases Referred and Mukti Devi v. Manorama Devi
Excerpt:
- .....act, for pre-emption and gave notice to the plaintiff. the plain-tiff did not appear in the pre-emption proceedings and the court passed an order granting the appellants' prayer for preemption. this order was passed on 16th february 1935. the plaintiff then raised the present suit. she alleged that she was a minor on the date of the pre-emption proceedings under section 26-f, ben. ten. act, and that she was not represented in those proceedings by any guardian. she claimed -that the order of pre-emption was null and void and that her rights in the property were not affected by the order passed in those proceedings. she prayed for a declaration of her title and for khas possession. 'there were two further allegations that the notice which should have been served on her had been.....
Judgment:

Sen, J.

1. The point for decision in this appeal is fairly simple. The plaintiff-respondent is a minor. On 21st April 1934 she purchased a certain jama from the pro-forma defendant 3. The principal defendants 1 and 2, who are the appellants before this Court, were the landlords of this tenancy. After her purchase the plaintiff took the usual steps under Section 26-C, Ben. Ten. Act. The landlords then applied under Section 26-F, Ben. Ten. Act, for pre-emption and gave notice to the plaintiff. The plain-tiff did not appear in the pre-emption proceedings and the Court passed an order granting the appellants' prayer for preemption. This order was passed on 16th February 1935. The plaintiff then raised the present suit. She alleged that she was a minor on the date of the pre-emption proceedings under Section 26-F, Ben. Ten. Act, and that she was not represented in those proceedings by any guardian. She claimed -that the order of pre-emption was null and void and that her rights in the property were not affected by the order passed in those proceedings. She prayed for a declaration of her title and for khas possession. 'There were two further allegations that the notice which should have been served on her had been fraudulently suppressed and that the deposits required to be made by the landlords under Section 26-F, Ben. Ten. Act, had not been made. These last two allegations need not be considered now as they have been decided against the plaintiff in both the Courts below and they have been abandoned here. Both Courts 'have held, however, that the order granting the landlords prayer for pre-emption is null and void inasmuch as the plaintiff was a minor when the pre-emption proceedings had been instituted and inasmuch as no guardian was appointed for her therein. On those grounds the suit has been decreed; and defendants 1 and 2 appeal.

2. That the plaintiff was a minor at the time of the preemption proceedings is now admitted. It is also admitted that no guardian was appointed on her behalf in those proceedings. The question for determination is whether in the circumstances mentioned above the order for preemption is a nullity. In my opinion, there can be only one answer to this question and that is that the order is a nullity. By virtue of the provisions of Section 141, Civil P.C., and Section 143 (2), Ben. Ten. Act, the provisions of Order 32, Rule 3, Civil P.C., would apply to proceedings under Section 26-F, Ben. Ten. Act, which are in the nature of suits. In a suit, if the defendant be a minor, the appointment of a guardian ad litem is mandatory and a decree passed in a suit against a minor where no guardian is appointed is a nullity. Authority for this proposition is hardly necessary, but if authority be needed I would refer to the case in Monmohini Das v. Behari Lal : AIR1936Cal421 and to the case in Chundi Churn Law v. Abbas Ali Bhuya : AIR1934Cal213 which is relied upon for other reasons by the appellants themselves. In the pre-emption proceedings, the plaintiff of this suit was in the position of a defendant and she being a minor and not represented by a guardian in the proceedings the order for pre-emption is a nullity and not binding on her.

3. Learned advocate for the appellants seeks to meet this position in two ways. First he says that the plaintiff is estopped from raising the question of her minority as she represented herself to be a major both in the kobala whereby she purchased the property and in the notice of her purchase issued under Section 26 (c), Ben. Ten. Act. The short answer to this argument is that the plaintiff did not make any such representation. In the kobala there is no statement that she is a major nor is there any such statement in the notice. All that can be said is that the plaintiff did not proclaim the fact that she was a minor. There is no duty upon the minor to make any such declaration and it cannot be said that there has been any misrepresentation or concealment amounting to a misrepresentation. It is unnecessary therefore for me to deal with cases cited by the learned advocate for the appellants to illustrate the effects of misrepresentation made by a minor regarding her minority. Further these cases dealt with misrepresentations made by a minor to a person with whom the minor was entering into a contract. Here the plaintiff was not entering into any contract with the appellants.

4. The next argument of learned advocate for the appellant is that the preemption proceedings were not void ab initio and that they should be revived in order that the appellants may now be given an opportunity of getting the minor properly represented by a guardian. In support of this argument, two eases have been placed before me; they are Monmohini Das v. Behari Lal : AIR1936Cal421 and Mukti Devi v. Manorama Devi : AIR1936Cal490 . Neither of these cases have any application to the present suit. In the first case, it was decided that where in a subsequent suit a decree passed against a minor is declared null and void on the ground that the minor was not represented by a guardian ad litem, the Court which decided the first suit has jurisdiction to revive it as against the minors. This decision was given in an appeal from a decree passed by the Court which had decided the present suit after reviving the fresh suit. In the second case an order of pre-emption was passed by a Court against a minor opposite party of whom no guardian ad litem had been appointed. Against this order a motion was taken to this Court. This Court in discharging the order of pre-emption remanded the proceedings to the lower Court so that the proceedings may be continued after a proper guardian was appointed. The pre-seat matter is neither an appeal nor a motion from a decree or order passed against an unrepresented minor. There is no motion before me against any order passed by the Court which granted the prayer for pre-emption and I have no jurisdiction to give any directions to that Court. If the appellants be so advised they may move that Court in appropriate proceedings and then come to this Court if they feel aggrieved by any order passed. At present I am only considering the effect of the order passed in the pre-emption proceedings upon the rights of the plaintiff and my opinion is that the order is of no effect. I accordingly uphold the decision of the lower Appellate Court and dismiss this appeal with costs. Leave to appeal under the Letters Patent is refused.


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