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AftabuddIn Vs. Prokash Chunder Soot and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in49Ind.Cas.118
AppellantAftabuddin
RespondentProkash Chunder Soot and ors.
Excerpt:
limitation act (ix of 1908), schedule i, articles 44, 144 - transfer by manager of joint family--suit by infant member to recover share--limitation applicable. - .....to recover possession of his share of the property mentioned in the plaint. his case was that his elder brother, while he was a minor, had made away with the property without any legal necessity. the defendant no.4 is the purchaser of the property in question. the first court dismissed the suit. the learned judge of the lower appellate court has decreed it. he has found, first of all, that the evidence on the record does not establish a case of legal necessity and, secondly, that the so-called transfer by the elder brother was made when the said brother did not purport to act as the guardian of his minor brother and that it was not established that the elder brother was, in fact, the guardian, but that he was the manager of a joint hindu family and apparently he would not be the.....
Judgment:

Fletcher, J.

1. This is an appeal by the defendant No. 4 against the decision of the learned Additional District Judge of Comilla, dated the 23rd June 1916, reversing the decision of the Munsif of the same place. The plaintiff sued to recover possession of his share of the property mentioned in the plaint. His case was that his elder brother, while he was a minor, had made away with the property without any legal necessity. The defendant No.4 is the purchaser of the property in question. The first Court dismissed the suit. The learned Judge of the lower Appellate Court has decreed it. He has found, first of all, that the evidence on the record does not establish a case of legal necessity and, secondly, that the so-called transfer by the elder brother was made when the said brother did not purport to act as the guardian of his minor brother and that it was not established that the elder brother was, in fact, the guardian, but that he was the manager of a joint Hindu family and apparently he would not be the guardian necessarily of the other coparceners. It is said that the suit is barred by limitation because the property was sold by the elder brother in March 1903, the plaintiff obtained majority in February 1912 and the suit was not brought until the 5th April 1914. I do not think this is a case to which Article 44 of the First Schedule to the Indian Limitation Act applies. This is not a case of an unauthorized document executed by an authorised person. It is a case of an unauthorised person altogether purporting to transfer a property belonging to the plaintiff which he had no right to transfer. The ordinary period of limitation in a suit like this is twelve years and, in that view, the conclusion arrived at by the learned Judge of the lower Appellate Court is right, The present appeal, therefore, fails and is dismissed. No one appearing for the respondent, we make no order as to costs.

Pahton, J.

2. I agree.


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