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(Ka) Benoy Bhusan Mukherjee and ors. Vs. Bina Mukherjee and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 217 of 1952
Judge
Reported inAIR1954Cal490,58CWN435
ActsTransfer of Property Act, 1882 - Section 39; ;Code of Civil Procedure (CPC) , 1908 - Section 35
Appellant(Ka) Benoy Bhusan Mukherjee and ors.
RespondentBina Mukherjee and ors.
Appellant AdvocateHari Prosanna Mukrerjee and ;Jnanendra Nath Bakshi, Advs.
Respondent AdvocateSaroj Kumar Bagchi, Adv. (for No. 1) and ;Surathi Mohan Sanyal, Adv. (for No. 2)
DispositionAppeal allowed
Excerpt:
- .....of a lottery ticket purchased by one ramani mohan mukherjee in the name of his minor daughter bina mukherjee. the ticket was issued by the calcutta rangers club and it won one of the 7 first prizes in the derby sweep held in england on the 4th of june, 1949. the amount of the prize was rs. 47,176. after the results of the sweep were published, ramani claimed the money, from the rangers club which advised ramani to produce a certificate of guardianship regarding bina mukherjee because she, the registered holder of the ticket, was a minor. some correspondence passed between the parties over this matter. ramani failed to produce the certificate in question and the club refused payment. thereupon, ramani brought this suit for declaration of his exclusive right to the lottery ticket as.....
Judgment:

Renupada Mukherjee, J.

1. In this appeal we are concerned with the ownership of a lottery ticket purchased by one Ramani Mohan Mukherjee in the name of his minor daughter Bina Mukherjee. The ticket was issued by the Calcutta Rangers Club and it won one of the 7 first prizes in the Derby Sweep held in England on the 4th of June, 1949. The amount of the prize was Rs. 47,176. After the results of the sweep were published, Ramani claimed the money, from the Rangers Club which advised Ramani to produce a certificate of guardianship regarding Bina Mukherjee because she, the registered holder of the ticket, was a minor. Some correspondence passed between the parties over this matter. Ramani failed to produce the certificate in question and the club refused payment. Thereupon, Ramani brought this suit for declaration of his exclusive right to the lottery ticket as also to the prize money described respectively in Schedules A and B of the plaint.

2. The principal defendant in the suit was minor Bina Mukherjee who was at first represented by her brother Benoy Bhusan Mukherjee. The Calcutta Rangers Club was made a pro forma defendant. The members of the executive committee of the Club were also later on made pro forma defendants on the objection of the Rangers Club.

3. The suit was separately contested on behalf of minor Bina Mukherjee who was ultimately represented by a Pleader guardian and by the Rangers Club. The defence of the Club is no longer material because in the appeal before us it was stated on behalf of the Club that it would pay the money to the person or persons declared by the Court to be entitled to the money.

4. The defence on behalf of Bina Mukherjee was that she was the rightful owner of the ticket and that the suit was not maintainable inasmuch as the contract which was the foundation of the suit was a wagering contract.

5. Ramani Mohan died during the pendency of the suit. Two major sons, two minor sons, and a widow were substituted in his place and they carried on the suit in the lower court. The suit was dismissed by the trial court and so the heirs of Ramani Mohan Mukherjee have preferred this appeal.

6. In the appeal before us the only point which arises for decision is who was the owner of the ticket which won one of the first prizes in the Derby Sweep. The objection that the suit is not maintainable in view of Section 30, Contract Act, was abandoned in this Court, both on behalf of the minor defendant as well as on behalf of the Club.

7. Regarding the question of ownership of the disputed ticket it is difficult to see how the trial courb could arrive at the finding that Bina and not her father Ramani Mohan Mukherjee was the rightful owner of the ticket. Admittedly, Bina was a child of 3 1/2 years when the ticket was purchased. It is not also the case on behalf of the minor that this ticket was purchased by somebody else other than the father on behalf of Bina. Ramani Mohan died during the pendency of the suit and his son Benoy Bhusan Mukherjee deposed and proved that his father had purchased the ticket with his own money and for his own benefit. There is no reason to disbelieve this statement. Ramani Mohan was a poor clerk in the employment of the Railway drawing a pay of Rs. 70/- per mensem. Besides the daughter Bina who was his youngest child he had also four sons, two of whom were minors, and a wife. There is absolutely no reason to think that he intended to purchase the ticket exclusive for the benefit of the minor daughter. From the evidence of Benoy and also the circumstances of this case it is abundantly clear that the ticket was purchased for his own benefit. The name of the daughter was used simply because he wanted to try his luck by using the name of the daughter who was the youngest child.

8. On behalf of respondent Bina Mukherjee reliance was placed upon a letter dated 14-6-1949, written by Ramani Mohan Mukherjee to the Rangers Club (Ex. B-l). In this letter Ramani Mohan stated that the ticket was inadvertently purchased on behalf of his daughter Bina Mukherjee who is a minor. Too much reliance should not be placed upon this letter for the purpose of determining who was the real owner or beneficiary of the ticket. In the next letter which was written by Ramani Mohan Mukherjee to the Rangers Club on 8-7-1949 (Ex. B-3) Ramani Mohan made it clear beyond doubt that Bina Mukherjee was a minor barely 3 1/2 years old and the ticket was purchased with Ramani's own money in the name of Bina 'out of fancy'. In this state of the record I hold that Ramani Mohan Mukherjee was the real owner of the ticket and he was entitled to get the prize money in question.

He would certainly have got the declaration prayed for in his favour if he had been alive; but the same declaration cannot be made to favour of the plaintiffs alone, although they are the legal heirs of Ramani Mohan Mukherjee. The defendant also has got a legal claim upon the money, she being entitled to her maintenance from out of the money. It was admitted before us in this Court that Ramani Mohan Mukherjee has not left any other money or property from out of which this minor can be maintained. So, though no specific share of the money can be declared in defendant's favour at this stage, she is entitled to be maintained out of it. In the circumstances, the proper declaration which should be made in this case is that the plaintiffs and the principal defendant are jointly entitled to the ticket and to the prize money attaching to the ticket.

9. On behalf of the Club an offer was made that it is ready and willing to deposit the prize money in favour of the person or persons who would be declared entitled to the same as the rightful owner. Having regard to the frame of the suit no mandatory direction can be given to the Calcutta Rangers Club for depositing the money. If, however, the Club deposits the money in pursuance of its voluntary offer made in this Court, then the deposit should be made jointly in the names of the plaintiffs and the principal defendant. The money will be dealt with according to the directions given in the ordering portion of this judgment.

10. It now remains for me to consider how the costs of the suit should be awarded. In view of the circumstances of this case I am of opinion that all parties should bear their own costs so far as the appeal in this Court is concerned. As to the costs of the lower court, it is directed that in view of the peculiar circumstances of this case, the plaintiffs will bear their own costs who presumably also paid the costs of the contest put up on behalf of the minor defendant. Although the plaintiffs have partially succeeded the Rangers Club not being responsible for bringing them to Court, will get half its costs of the trial court viz. Rs. 474/2, and the Club will be permitted to deduct this amount from the prize money while depositing that amount in the trial court.

11. The cross-objection which was taken by the Club is disposed of by this order.

12. In the result the appeal is allowed and the Judgment and decree of the court below are set aside & the suit is decreed in a modified form. Be it declared that the plaintiffs and the principal defendant Bina Mukherjee are the rightful owners of the lottery ticket and the prize money described respectively in Schedules A and B of the plaint. If the prize money is deposited in the trial court by the Rangers Club after deducting the costs awarded to it, the amount will be kept in deposit in that court and will not be paid to any party until a certificated guardian or guardians are appointed by a competent court in respect of the two minor plaintiffs and minor defendant Bina Mukherjee, and until suitable orders are obtained from that Court or any other competent Court for disposal of the money. The question whether a succession certificate will be necessary for the disposal of the money, if deposited, will be decided by the Court passing the order for disposal of the money.

Rama Prasad Mookerjee, J.

13. I agree.


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