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Brojendra Chandra Sarma Vs. Prosunna Kumar Dhar and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in59Ind.Cas.589
AppellantBrojendra Chandra Sarma
RespondentProsunna Kumar Dhar and ors.
Cases ReferredMata Din v. Sheikh Ahmad Ali
Excerpt:
civil procedure code (act v of 1908,), order xli, rule 22, applicability of, to letters patent appeal - limitation act (ix of 1908), schedule i, article 44--alienation by guardian of ward's properly--suit to set aside alienation--limitation. - .....that in such circum stances, article 44 (which prescribes a period of three years within which a ward who has attained majority may set aside a sale by his guardian, the time running from the date of the ward's majority) had no application because the sale was effected, not by a guardian but by a wholly unauthorized person. in the case before us, as the transfer was effected by a guardian, article 44 is applicable. we do not, however, express an opinion on the question, whether, in the view adopted by mr. justice newbould, he should not have dismissed the entire suit. we need only hold on the appeal by the plaintiff that the decree, in so far as it has been made against him, is well founded and must be upheld.9. as the appeal has failed, and the cross-objection has been rejected, there.....
Judgment:

Asutosh Mookerjee, Acting C.J.

1. This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Newbould, is a suit brought by the appellant to recover possession of a property conveyed during his minority by his mother and uncle on the 23rd August 1904.

2. The case for the plaintiff is, that the property belonged to his father, and that there was no occasion for its transfer by his mother who was his natural guardian. The case for the purchasers is that the property belonged to the joint family and that there was legal necessity for the alienation.

3. The Court of first instance and the Subordinate Judge have concurrently found that the property did not belong to the family but was owned exclusively by the father of the plaintiff. The Courts have also found that there was no necessity for the sale. In this view, the Subordinate Judge, in affirmance of the decree of the Court of first instance, has decreed the suit.

4. Upon appeal, Mr. Justice Newbould has held that, in respect of a one third share, the suit is barred by limitation under Article 44 of the Schedule to the Indian Limitation Act. In this view, he has dismissed the suit with regard to a one-third share, and maintained the decree as regards the remaining two-thirds share.

5. The plaintiff has contended, in support of this appeal, that the suit is not barred under Article 44, inasmuch as the transfer was not voidable but void, and he was consequently entitled to recover possession within twelve years from the date of alienation. The respondents have preferred a memorandum of cross objection with regard to the two-thirds share, and have argued that the entire claim is barred by limitation. We are of opinion that the memorandum of cross-objection cannot be entertained. Rule XX of Order XLI of the Civil Procedure Code is not applicable to an appeal under Clause 15 of the Letters Patent. Kausalia v. Gulab Kuar 21 A. 237 : A.W.N. (1893) 72 : 9 Ind. Dec. (N.S.) 898. The cross-objection must therefore, be dismissed.

6. As regards the appeal, we are of opinion that the conveyance of the 23rd August 1914, in so far as it was a conveyance by the mother of the plaintiff, was void able and not void. This view is supported by the authorities reviewed in the case of Sham Chandra Dafadar v. Gadadhar Mandal 9 Ind. Cas. 377 : 13 C.L.J. 277 where reference is made, amongst others, to the earlier decision of the Judicial Committee in Gnanasambanda Pandara Sannadhi v. Velu Paniaram 23 M. 271 (P.C.) : 2 Bom. L.R. 597 : 4 C.W. 17. 329 : 27 I.A. 60 : 10 M.L.J. 29 : 7 Sar. P.C.J. 67l : 8 Ind. Dec. (N.S.) 591. The same view has subsequently been adopted in Bombay in the case of Mahableshwar Krishnappa v. Ramchandra Mangesh 21 Ind. Cas. 350 : 33 B.94 : 15 Bom. L.R. 882 and in Madras in the case of Muthukumara Chetty v. Anthony Udayan 24 Ind. Cas. 120 : 38 M. 837 : 15 M.L.T. 381 : 29 M.L.J. 617.

7. Our attention, however, has been drawn to the decision of the Allahabad High Court in Bachan Singh v. Kamta Pershad 5 Ind. Cas. 585 : 32 A. 392 : 7 A.L.J. 337which is in favour of the contention put forward by the appellant; but we are not prepared to follow it, as it makes no reference to Article 44 of the First Schedule to the Limitation Act.

8. Reference has finally been made to the decision of the Judicial Committee in the case of Mata Din v. Sheikh Ahmad Ali 13 Ind. Cas. 976 : 15 C.L.J. 270 : 16 C.W.N. 338 : 11 M.L.T. 145 : (1912) M.W.N. 183 : 9 A.L.J. 215 : 14 Bom L.K. 192 : 15 O C. 49 : 34 A. 213 : 23 M.L.J. 6 : 39 I.A. 49 (P.C.), where the alienation was by a de facto guardian who had no legal status as guardian. Lord Robson pointed out that in such circum stances, Article 44 (which prescribes a period of three years within which a ward who has attained majority may set aside a sale by his guardian, the time running from the date of the ward's majority) had no application because the sale was effected, not by a guardian but by a wholly unauthorized person. In the case before us, as the transfer was effected by a guardian, Article 44 is applicable. We do not, however, express an opinion on the question, whether, in the view adopted by Mr. Justice Newbould, he should not have dismissed the entire suit. We need only hold on the appeal by the plaintiff that the decree, in so far as it has been made against him, is well founded and must be upheld.

9. As the appeal has failed, and the cross-objection has been rejected, there will be no order as to costs.

Fletcher, J.

10. I agree.


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