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Sarada Prosad Roy Vs. Ananda Moy Dutta and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in46Ind.Cas.228
AppellantSarada Prosad Roy
RespondentAnanda Moy Dutta and ors.
Excerpt:
estoppel - party pleading estoppel put on notice, effect of. - .....by a default and sale under the putni regulation. one does not ordinarily want to improve his title. the title generally improves with age like many other things. but this person thought that it would be improved by being extinguished and that thereby a new title would come into operation. it is not shown that that sale was fraudulent--probably it was not. but what is shown is that the defendant no. 1 was never in a position to commit a default and have the property brought to sale, unless he had this improper purchase from the defendants nos. 8 and 9. that being so, it is quite clear that, on ordinary principles, he cannot retain the property that he simply acquired by reason of being in a position that he had no right to occupy. the case is a perfectly simple one having regard to.....
Judgment:

Fletcher, J.

1. This is an appeal by the defendant No. 1 against the judgment of the learned Subordinate Judge of Burdwan, dated the 20th April 1916, reversing the decree of the Munsif of the same place. The plaintiff brought the suit for setting aside a conveyance and a sale under Regulation VIII of 1819, with respect to a 1 anna 8 gunda odd share in a Putni. The share in the Putni is said to have been sold by the defendants Nos. 8 and 9 on behalf of the plaintiff on the 10th Assar 1319 when he was a minor, the defendant No. 8 being the executor of the plaintiff's uncle's Will and the defendant No. 9 being his mother. The fact found is that the plaintiff was not a minor at the time of the sale and, therefore, it is obvious that his mother could not sell the property on his behalf. The case is obviously a clear case of caveat emptor and the learned Judge has found that there was no case of representation by plaintiff that he had not reached the age of majority. A point is made that, as regards the part of the property that was derived under the uncle's Will, it is not shown that the defendant No. 8 as executor had not sold it for the purposes of administration. There are many answers to that. First of all, the uncle died many years before, much longer than prima facie there could be any outstanding debt against the estate of the uncle which could be recovered, having regard to the provisions of the Indian Limitation Act. Therefore, prima facie the executor's power to sell for payment of any debt had gone. The other powers given by the Will to the executor, as appears from the judgment of the lower Appellate Court, came to an end when the plaintiff attained majority. The Will has not been shown to us: but that appears from the judgment. If the defendant No. 1 had made the ordinary enquiries on inspecting the Will, he would have found out that the powers given by the Will to the executor terminated when the plaintiff attained majority. Therefore, there cannot be any case of estoppel when the defendant No. 1 was put on notice and he could have by reasonable diligence discovered what the true facts of the case were. On the findings of fact made by the learned Judge of the lower Appellate Court it is quite clear that there is no estoppel against the plaintiff nor did he lose his title to the property conveyed by the defendants Nos. 8 and 9.

2. The other point is about what is called the astam sale, which seems to suggest that the defendant No. 1 knew perfectly well that the title that he had acquired was not a good one, because his view was that the title would be improved by a default and sale under the Putni Regulation. One does not ordinarily want to improve his title. The title generally improves with age like many other things. But this person thought that it would be improved by being extinguished and that thereby a new title would come into operation. It is not shown that that sale was fraudulent--probably it was not. But what is shown is that the defendant No. 1 was never in a position to commit a default and have the property brought to sale, unless he had this improper purchase from the defendants Nos. 8 and 9. That being so, it is quite clear that, on ordinary principles, he cannot retain the property that he simply acquired by reason of being in a position that he had no right to occupy. The case is a perfectly simple one having regard to the facts found by the lower Appellate Court. The appeal fails and is dismissed with costs.

Shamsul Huda, J.

I agree.


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