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Priyabala Dasi W/O Birendra Kumar Roy Vs. Hanuman Prasad Kalwar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1939Cal202
AppellantPriyabala Dasi W/O Birendra Kumar Roy
RespondentHanuman Prasad Kalwar
Cases ReferredSaraswati Debi v. Bahadur Lal Reported
Excerpt:
- .....unfortunate case. it was actually adjourned to the next day for further hearing, but on the next date, claimant no. 3 asked for time, and the learned president complacently agreed, on payment of adjournment costs. the further hearing was resumed on 23rd march 1935, when three more witnesses were examined on behalf of claimant no. 3, but the cross-examination of the last witness was not concluded. the case was then adjourned to 30th march 1935 for further hearing. then followed what on the face of it appears to be an extraordinary proceeding. although the 30th march was the date fixed, the order-sheet shows that the case was actually taken up on the 27th, that is to say three days earlier. there was protest from the learned advocate of claimant no. 3, and he prayed that the case should.....
Judgment:

Biswas, J.

1. This is an appeal against the decision of the President of the Calcutta Improvement Tribunal in an apportionment case. As the matter was decided by the President sitting singly, the appeal lies on questions of fact as also of law under the provision of Section 3, Sub-section (1), Clause (a), Calcutta Improvement (Appeals) Act, (18 of 1911). The dispute is as regards a sum of Rs. 690 which had been awarded by the Land Acquisition Collector on account of the value of certain structures in premises Nos. 125 and 126, Manicktolla Road. The. Collector made the award in favour of one Debi Charan Biswas who claimed to be the purchaser of the structures at a sale held in execution of a decree for rent against the tenant of the premises. The whole of the amount was withdrawn by Debi Charan after the award. Thereafter one Hanuman Prosad Kalwar appeared before the Collector and applied for a reference to the Tribunal under Section 18, Land Acquisition Act, on the ground that he was a mortgagee of the structures and that he was accordingly entitled to be paid the amount due on the mortgage out of the compensation money. The learned President by his order held in favour of the mortgagee claimant who is described as claimant No. 3 in these proceedings, the other claimant who had taken out the compensation money being claimant No. 2, and in the result, he made a decree for a sum of Rs. 628-10-8 with interest and costs in favour of the former. Hence the present appeal by claimant No. 2. The learned Judge recorded a short judgment, the greater portion of which is taken up with a narration of the facts and issues in the case. His decision is contained in one sentence which is in these words:

Having regard to the recitals in the mortgage deed and the evidence in this case, I hold that the mortgage is binding upon the minor's property.

2. In order to appreciate this statement, it is necessary to state the facts as put forward by Hanuman. His case was that the structures belonged to one Nandan Shah who was the original tenant of these premises. Nandan made a gift of the structures to his son-in-law, Raghunath Kalwar. Raghunath died, leaving an infant daughter named Durga Kalwarni as his sole heiress. Up to this stage the facts are admitted by the other side. But Hanuman goes on to say that after Raghunath's death, money was needed to pay the sradh expenses of Raghunath and landlord's rents, and accordingly a sum of Rupees 150 was borrowed from him by Durga's maternal grandmother, Rupia Kalwarni. She borrowed a further sum of Rs. 50 from him for the same purpose on 24th August 1926, and on this date, purporting to act as guardian on behalf of Durga, she executed a mortgage in favour of Hanuman for the total sum of Rs. 200. It is on this mortgage that Hanuman bases his claim in these proceedings.

3. There are recitals no doubt in the mortgage deed that Rupia was the guardian of the minor and that the mortgage debt was incurred for payment of the sradh expenses of the minor's father and for paying the taxes and rents of the landlord on account of the premises. But it was in our opinion essential for the learned President to come to a definite finding on the question ,as to whether Rupia was the de facto, if not the dejure natural, guardian of the minor, and if so, whether the mortgage was a bona fide transaction executed by her as such for legal necessity. The learned President does not appear to have considered the evidence on the first point at all, and we are unable to accept his mere statement, expressed as it is in the words I have quoted, as a proper or sufficient finding. Hanuman has himself given evidence in this case. All that he says is that Durga was looked after by Rupia. This, in our opinion, is wholly insufficient to establish de facto guardianship. In cross-examination Hanuman admitted that he did not reside in Calcutta, but had his house at Gorakhpur. It was obviously not possible for him therefore to have any personal knowledge as to who was the guardian of Durga. He had to admit further that Raghunath had left a brother, Sheonath, and that Sheonath was still alive. It was also elicited from him that when the money was lent by him on mortgage, Nandan was alive, Nandan being the mother's father of Durga. There can be no question that as between these persons, Sheonath, the father's brother, if not Nandan, the mother's father, would be the preferential natural guardian of the minor. More convincing evidence was therefore necessary to show that a person other than the natural guardian was the de facto guardian. We are not satisfied that Rupia was in fact the guardian of Durga.

4. We cannot help thinking that the learned President wholly overlooked the real point in the case, which was whether or not the person who purported to execute the mortgage on behalf of the minor was legally competent to do so. The evidence as it stands, in our opinion, fails to establish that Rupia had such legal capacity. In that view of the matter, we must hold that the mortgage was not at all binding on the minor, and on that ground alone the claim of Hanuman, which is based on this mortgage, must fail. It is not necessary to go into the other points urged by the appellant. The result is that this appeal must be allowed, and the judgment and decree passed by the learned President set aside. Claimant 2, or rather his heir who is now the appellant on record as his legal representative, will retain the money he had already withdrawn from the Collector. The appellant will be entitled to recover from the respondent her costs of the hearing both before us, and before the President of the tribunal, and we assess the hearing fee in this Court at five gold mohurs.

5. Before we part with the case, we desire to refer to a matter which cannot be passed over without comment. This is not the first time that we have had occasion to invite the attention of the learned President to the lamentable state of affairs disclosed in the proceedings before his Court. This was a simple apportionment reference, involving a paltry sum of about Rs. 600 or so, and two parties, one of whom was claiming as purchaser of certain structures at a rent execution sale, and the other as mortgagee of the structures from the tenant owner. The Land Acquisition Collector, as already stated, had awarded the whole of the value of these structures to the former, and he took out the money in due course. Thereafter the mortgagee appeared, and obtained the reference. The reference was made by the Collector on 25th July 1930, but hard as it is to believe, it was not finally disposed of by the learned President until 12th January 1937. In other words, it took him over six years to finally decide a claim in respect of a sum of about six hundred rupees. To start with, the reference, though made on 25th July 1930, was not registered as an apportionment case till 25th November 1932. Why this should not have been done is not clear from the order sheet, which merely records an order in these terms : '25th November 1932, Register as an apportionment case : vide Order No. 40 of 22nd November 1932, in Case No. 97 of 1930.' Presumably it means that there was a valuation reference pending regarding the land, and the apportionment case was allowed to rest in a comfortable siding till that was disposed of. If we are right in our surmise, all that we can say is that the action of the learned President was wholly unjustified.

6. Having made this late start, the case was fixed for hearing on 6th January 1933. On that date it was adjourned to 7th. February, and then to 6th March next. It then appeared that claimant 2 (the purchaser of the structures) had died and a reference was made to the Collector for the name and address of the legal representative. This information was not received from the Collector before the next date of hearing. A further date was accordingly fixed, namely 19th May 1933. On this date the legal representative appeared, and she filed her written statement on the next subsequent date, 9th June. The case was again adjourned to 24th June, and then followed a series of further adjournments, mostly for want of time,' till 1st November 1933. Draft issues had meanwhile been filed by both parties. On 1st November apparently the question of settlement of issues was taken up, as the order on this date runs in these terms: 'Case taken up. Heard respective advocate and pleader for claimants 2 and 3.' It however took the learned President more than two months to make up his mind as to what the issue should be, for it was not until 6th January 1934, that the issues were settled. Although five issues were framed, we may notice that the real points were missed: these were, first, as already explained, whether the person, who purported to execute the mortgage on behalf of the minor Durga, was legally competent to do so, and secondly whether the alleged mortgagee was one of the persons against whom the rent decree was passed in execution of which the structures were purchased by claimant 2. The issues, as stated, were settled on 6th January 1934, but then followed an orgy of adjournments again, not less than 15 in number, until 6th March of the following year. Most of these adjournments were on the same ground as before, 'want of time.' Meanwhile there was a little diversion which accounted for a month or so. On one of the dates of hearing, 4th January 1935, when the case was called on, it appeared that the pleader for claimant 2 was present, but not the pleader for the other. The learned President thereupon quickly dismissed the case 'for want of prosecution.'

7. Pausing here for one second, one might. wonder if, when the Court was apparently not minded to take itself seriously, a pleader would be very much to blame if on his part he took a less responsible view of his own duty. The order of dismissal passed in these circumstances naturally invited an application for restoration. Such an application was made on 22nd January 1935, and restoration was allowed on 2nd February 1935 on payment of Rs. 16 as costs to the other side. On 6th March 1935 the case was after all taken up for hearing, and in point of fact, four witnesses were examined and a number of documents filed on that date. But Nemesis still seemed to be dogging the steps of this unfortunate case. It was actually adjourned to the next day for further hearing, but on the next date, claimant No. 3 asked for time, and the learned President complacently agreed, on payment of adjournment costs. The further hearing was resumed on 23rd March 1935, when three more witnesses were examined on behalf of claimant No. 3, but the cross-examination of the last witness was not concluded. The case was then adjourned to 30th March 1935 for further hearing. Then followed what on the face of it appears to be an extraordinary proceeding. Although the 30th March was the date fixed, the order-sheet shows that the case was actually taken up on the 27th, that is to say three days earlier. There was protest from the learned advocate of claimant No. 3, and he prayed that the case should be taken up on the date fixed. 'The prayer is refused. Adjourned to 29th March 1935 for further hearing.' The learned President had apparently his own reasons for adjourning it to the 29th instead of to the 30th, although to anyone else the 30th would certainly have been the more proper date. On the 29th the case was taken up, when advocate for claimant No. 3 was ready, but the pleader for the other claimant was absent. In the result, the hearing was adjourned to the 30th, the date originally fixed. On this date the witness of claimant No. 3, who was still under cross-examination was non est. The cross-examination could not therefore be continued, and the opposing claimant was obliged to leave the matter at that. The case was then 1 closed, and arguments were heard on this date. Judgment was finally reserved, and it was not delivered until four months later, namely 31st July 1935. Reading the judgment, which covers barely two pages of the paper-book, the greater portion being, as already stated, a mere recital of the facts and issues, one fails to see why it should have required such a long period of incubation.

8. The order-sheet under this date, 31st July 1935, records 'judgment delivered. Case disposed of,' but as the sequel shows there was another period of travail to follow before the final issue emerged. As pointed out above, claimant No. 2 had withdrawn the compensation money from the Collector. Now that the Tribunal held that the other claimant, the mortgagee, was entitled to payment of his dues under the mortgage, it was obviously necessary to pass a decree in favour of the mortgagee claimant as against the other. An application was in fact made by the mortgagee claimant for the drawing up of such a decree on 28th August 1936, but it was not until 21st December following that the learned President was able to make up his mind in the matter. The matter, it appears, had been set down for argument, and arguments heard on 21st September 1936. And thereafter an order was recorded on this date : 'Heard both parties. Put up tomorrow for order.' But the learned President showed that 'the dupe of tomorrow' was not a mere fanciful expression to be found in children's poems. The 'tomorrow' did not arrive until three months later, namely 21st December 1936. The decree was then signed on 12th January 1937, after which the appellant was enabled to file her appeal in this Court.

9. We think that a bare recital of the chronological sequence of events as recorded in the order-sheet in the case would be enough to cast deserved reproach on the administration of justice in any Tribunal. Here was a case of 1930 concerning a small sum of Rs. 600 which was not finally disposed of until 12th January 1937. The only reason which appears in the order-sheet for this inordinate delay is 'want of time.' If the President of the Calcutta Improvement Tribunal is such an exceptionally hard-worked officer, it is time the attention of the authorities should be drawn to the matter in order to give him adequate relief, for it is intolerable that litigants should be kept waiting for weeks, months and years on end before getting an adjudication of their claims. We had occasion in another case recently (F.A. 246 of Saraswati Debi v. Bahadur Lal Reported in : AIR1939Cal183 , decided on 7th July 1938) to invite attention to this laxity in the proceedings of the Calcutta Improvement Tribunal, and had said then that, if possible, the matter should be set right by the framing of rules under the Calcutta Improvement Act. If that is not possible or not possible within a comparatively early date, it is time steps were taken to arrange for regular inspection of the Tribunal by or on behalf of this Court. We desire that a copy of our remarks in this case also should be forwarded to the Local Government for such action as they might be disposed to take, and that the matter should be laid before the Hon'ble the Chief Justice as well in order that the question of inspection of the Tribunal might be considered.

Ghose, J.

10. I agree.


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