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Heeralall Chakraburtty Vs. Sreemutty Mansha Moyee Debi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1934Cal520,152Ind.Cas.1073
AppellantHeeralall Chakraburtty
RespondentSreemutty Mansha Moyee Debi
Cases ReferredSajjad Husain v. Abid Husain Khan
Excerpt:
- .....support of the respective cases of the parties oral and documentary evidence have been led and the learned district judge after a consideration of the same has come to the conclusion that the notes were not made over to the respondent and further that the ornaments were not made over to her; and he passed an order to the effect that the sum of rs. 7,443, which was the value with interest at 6 per cent per annum of the government promissory notes, should be made over by the appellant to the respondent and that so long as the sum is not made over to her the appellant is to be detained in civil jail in accordance with the provisions of section 45(1)(c) guardians and wards act. the learned district judge has also directed that the ornaments, the value of which has been assessed at rs. 500,.....
Judgment:

Mitter, J.

1. This is an appeal on behalf of a person who was appointed a guardian by the District Judge of Hooghly under the Guardians and Wards Act in respect of the person and property of a minor girl Manashamoyi. The minor was born in 1904. An application for guardianship was made by the appellant on 6th March 1924 and in the said application a prayer was made that the appellant be appointed guardian to the minor's estate as given in the schedule annexed to the petition. The Ka schedule properties consist of Government promissory notes of the face value of Rupees 7,000 and of market value of Rs. 4,200. Kha schedule properties consist of twenty-one items of ornaments the total value of which was put down at, Rs. 500. On 24th June 1924 the appellant Hiralal Chakravartty was appointed guardian and in May 1925 the minor girl attained majority.

2. The allegation which had been made in these proceedings which were started by the minor after she had attained majority Under Section 41, Guardian and Wards Act, is that neither the Government promissory notes of the face value of Rs. 7,000 nor the ornaments were made over to her by the guardian, that is the appellant. Her case is that she knew nothing about the return of the Government promissory notes to her and that the appellant fraudulently got a receipt which was signed for her by an advocate of this Court who ordinarily practises in the Calcutta Police Court- one Satis Chandra Gupta. On the other hand the case for the appellant is that the Government promissory notes were made over to her and they were received by Satis Chandra Gupta and that it was he who made over those Government promissory notes to her. On the other hand the case of the respondent is as has already been stated, that there was a sort of conspiracy between the present appellant and persons who are under his control by which it has been made to appear that she endorsed all these Government promissory notes to one Satis and on 5th October 1926 Satis sold the notes in the office of the well known brokers Messrs. Prosad Das Boral and Brothers, and the present appellant identified the said Satis Haldar to the said brokers. In support of the respective cases of the parties oral and documentary evidence have been led and the learned District Judge after a consideration of the same has come to the conclusion that the notes were not made over to the respondent and further that the ornaments were not made over to her; and he passed an order to the effect that the sum of Rs. 7,443, which was the value with interest at 6 per cent per annum of the Government promissory notes, should be made over by the appellant to the respondent and that so long as the sum is not made over to her the appellant is to be detained in civil jail in accordance with the provisions of Section 45(1)(c) Guardians and Wards Act. The learned District Judge has also directed that the ornaments, the value of which has been assessed at Rs. 500, be also made over to the respondent Manashamoyi. He has further lodged a complaint Under Section 476, Criminal P.C., against Hiralal Chakravarty and Nagendar Chakravarty.

3. Against this decision of the learned District Judge an appeal has been brought by Hiralal Chakravarty which is numbered Appeal from Original Order No, 398 of 1932. There is also an appeal by Hiralal Chakravarty against the complaint which is purported to have been made Under Section 476, Criminal P.C. In support of the Appeal No. 398 of 1932 by Hiralal Chakravarty it has been contended by the learned advocate for the appellant that the order of the District Judge was made without jurisdiction as the provisions of Section 41, Guardians and Wards Act, were not attracted to the facts of the present case and that the remedy of the respondent was not by starting proceedings Under Section 41, but was by the institution of a suit. In support of this contention reliance has been placed on a decision of this Court in the case of Nabu Bepari v. Sheikh Mahomed (1901) 5 CWN 207. An examination of this case will however show that what was laid down there was that the summary power created by the Guardians and Wards Act ceases as soon as the minority of the ward ceases and the object of that section is to give the Court as representing the interest of the minor, certain summary power for the protection of his property during minority; and that Section 41 cannot be construed into giving the Court, by summary procedure, a power to order accounts to be rendered after the termination of the guardianship. This is not a case of rendering accounts. This is a case where the ward seeks for relief by way of delivery of specific properties to wit the Government promissory notes which belonged to her; and in our view the case falls within the purview of Section 41 which so far as is material runs in these terms:

When for any cause the powers of a guardian cease, (in the present case the power of the guardian has ceased by reason of the ward ceasing to be a minor) the Court may require him, or if he is dead, his representative to deliver as it directs any property in his possession or control belonging to the ward or any accounts in his possession or control relating to any past or present property of the ward.

4. In this case according to the case made by the respondent the Government Promissory Notes were in the possession or control of the guardian, namely the appellant. It is said however on behalf of the appellant that the Government Promissory Notes had already been negotiated and converted into money. Further it is alleged that as the bank account of the appellant will show that the entire sum representing the sale proceeds of the Government Promissory Notes has passed out of the hands of the appellant as he has spent it and consequently it cannot be said to be money representing the proceeds of the conversion of the Government Promissory Notes in the control of the guardian. It is difficult to accede to this contention for the words in the possession or control' must not be taken in the narrow sense as being actually in his possession or control but in the sense that it has power of disposition over it. Otherwise if the contention of the appellant is accepted it would lead to the result that the guardian by converting a specific property into money and by immediately disposing of the said property would be able to evade the provisions of the section. This could never have been the intention of the legislature. The ease in Nabu Bepari v. Sheikh Mahomed (1901) 5 CWN 207, on which reliance has been placed, is evidently distinguishable from the facts of the present case. The present case rather falls within the purview of the case of Abdul Hasim v. Maleka Khatun A1R 1919 Cal 833

5. In that case a sum of Rs. 1,475 was said to be in the hands of the guardian after the ward had attained majority ; and the case of the guardian in the proceedings taken Under Section 41 was that he had spent that sum for the benefit of the minor. In such circumstances this Court directed that a full inquiry should be made as to whether the balance of the proceeds of the sale of two houses, namely Rs. 1,475, was in the hands of the appellant or had been applied to the necessities or benefit of the minor. The Court further directed that if it was found that any portion of the said balance, namely Rs. 1,475, had not been spent for the minor the Court might make an order Under Section 41(3), Guardians and Wards Act, for payment of such sum into Court, and on the appellant's failing to pay such sum, the Court might proceed under the provisions of Section 45, if it considered that the appellant should again be detained in jail. We are clearly of opinion that having regard to the language of the statute and having regard to the decision to which we have just referred, the District Judge was quite competent to entertain this matter in the proceedings Under Section 41, Guardians and Wards Act. The contention therefore of the want of jurisdiction must fail.

6. This brings us to consider the matter as to whether the case of the appellant has been established on the evidence in this case. There is no question that the burden of establishing that these notes were made over to the ward who was admittedly an illiterate pardanashin lady lay on the appellant. The principles which are applicable to eases of deeds and powers executed by helpless pardanashin ladies also apply to the present case, for here her case is that she never signed a receipt evidencing the receipt by her of these Government Promissory Notes. The receipt which has been marked as Ex. A in the case is to be found at p. 76, part 1 of the paper book. In cases of this description, as has been pointed out by their Lordships of the Judicial Committee in numerous cases, to one of which reference may be made, namely, to the case of Sajjad Husain v. Abid Husain Khan (1912) 34 All 455, that its is a well-known rule of the Committee that in the case of deeds and powers executed by a pardanashin lady it is required that those who rely on them should satisfy the Court that they had at the time of the execution been explained to and understood by the executant. This rule is based on the same principle by which protection is extended to the weak and the infirm by the Court of Chancery in England and it is the duty of every Court to see that defenceless and helpless pardanashin ladies should get the same amount of protection as is extended to the weak and the infirm in other countries. In addition to this it appears that this lady, namely, the respondent, was, as the learned District Judge says when he saw her, feebleminded; and the Court is bound to give her protection in those circumstances. It is nowhere proved affirmatively that the thumb impression on which reliance is placed to prove the transaction was actually her thumb-impression put upon the receipt after understanding the nature and import of the transaction.

7. The learned District Judge has come to the conclusion that notwithstanding her denial the thumb-impression on the receipt appears to be that of the respondent. But that is not equivalent, having regard to the case made by her, to the appellant's proving to the satisfaction of the Court that she put her thumb-impression on the paper in question after understanding that she was really giving a receipt for the Government Promissory Notes of the face value of Rs. 7,000. The burden therefore being on the appellant the question is whether he has discharged that burden. In support of the case of the appellant he has examined an advocate of this Court who ordinarily practices in the Calcutta Police Court and who is said to have written a letter on behalf of the respondent demanding from the appellant the delivery of these notes. Unfortunately for the appellant the original of this letter has not been produced. The learned District Judge rightly pointed out that the pleader's evidence on this behalf must be discounted seeing that he has not followed the ordinary practice of keeping a copy of such letter in his office. We agree with the learned District Judge that this story of the letter of demand cannot be trusted. (His Lordship considered the evidence, pointed out discrepancies and improbabilities in it, and after dealing with circumstances connected with the conversion of Promissory Notes by the guardian, proceeded.) In cases of this kind where the learned (District Judge had an opportunity of himself watching the demeanour of witnesses, an advantage which we have not sitting here in the appellate Court and where the issue is a simple one, this Court should not lightly interfere with the findings of fact of the trial Court. This view is in accordance with the principle which was laid down by their Lordships of the Judicial Committee in the case of Bombay Cotton . v. Motilal Shivlal AIR 1916 PC 1. The issue here was a simple one, namely whether the notes were actually made over to this lady. We are bound to keep in mind the observations of the Judicial Committee and not to interfere with the view of the oral evidence taken by him unless a strong case is made out. For this reason and also for the reasons which we have already given we are of opinion that we should not interfere with the decision of the learned District Judge on this point. We are of opinion that the learned Judge has rightly appreciated the evidence given in this case on behalf of the defendant and rejected the same. In addition to the fact that the appellant has failed to discharge the burden which lay upon him of establishing the fact that these notes were made over to the lady we believe that the lady herself has come straightforwardly to make the case that she has never received one single of these notes. This disposes of the case with regard to the Government Promissory Notes. We now proceed to deal with the ornaments which belonged to the ward and in respect of which the present appellant has made his guardianship application on 6th March 1924. He stated that the property of the ward consisted of Government Promissory Notes already dealt with and of ornaments of which the total value was Rs. 500 consisting of 21 items. With regard to these the case of the lady was that these ornaments were never made over to her. The District Judge has considered that question.

8. It is said on her behalf that the ornaments, as the lady herself admitted, were in the possession of one Hari Charan Roy and our attention has been drawn to a certain certified copy of petition of compromise, Ex. E, filed before the Bench Magistrate of Serampore which is to be found at p. 1, part 2 of the paper book and from which it would appear that the prayer was made that the ornaments may be kept in deposit with Babu Hari Charan Roy of Tulyan, who is a near relation of the accused This has been consistently the case which the appellant has made throughout. It is true that when be had applied to be appointed a guardian and his application was granted it was his duty to take possession of the ornaments from whomsoever they were and that was not done. It is undoubtedly a great deriliction of duty on the part of the guardian. The presumption further is that in the ordinary course of events he has got possession of those ornaments. But it is said that in a proceeding Under Section 41 it must be shown that he is in possession of those ornaments ; and on this part of the case, as Dr. Mukerji for the respondent has frankly admitted, the finding of the learned District; Judge is somewhat of a halting character. The learned District Judge says this:

Whether they were made over to the guardian at the time he took possession of the securities I am not prepared to say, as there is no evidence on the point, but at least his responsibility for the ornaments is there, and I have no doubt whatsoever that the guardian has obtained possession of the major portion of them at least. I disbelieve the story of the return of them and he is liable to account for them. On the third and fourth questions therefore, I hold that the ornaments have not been made over to the ward, that the guardian has come into possession of the bulk of them at least and that he is accountable for them.

9. And in another place the learned Judge remarks thus:

Taken alone, it may have been possible to give the guardian the benefit of the doubt as far as the ornaments are concerned but considering the unreliable evidence of it, the untrustworthiness of his main witnesses of the transactions, Hari Roy and the guardian's proved dishonesty in the matter of the securities, I have no hesitation in holding that the whole story of return of the ornaments is fictitious and the receipt has been concocted by false pretences again.

10. Haying regard to this finding and having regard to the circumstance that there is only the evidence of the lady who simply says that the appellant admitted before her that he had taken back the ornaments from Hari Charan Roy we do not think that we should be justified in confirming the order of the learned District Judge with regard to these ornaments. We think that the respondent has not proved beyond doubt that the possession of the ornaments was really with the appellant. The effect which the evidence leaves in our minds is that it has not been established by convincing evidence that the ornaments were ever in the possession of the appellant. The order of the District Judge with regard to the value of the ornaments must therefore be set aside. A question has been raised as to whether the learned District Judge was justified in allowing interest at 6 per cent, per annum on the proceeds of the Government Promissory Notes. The learned District Judge says this:

On the fifth question I hold that the guardian is liable to the ward for the sum he realised on the securities in October 1926 together with interest on that sum at 6 per cent, per annum: this by 1st November 1932 by which I propose to require him to pay will amount to approximately Rs. 7,443 together with either the ornaments or another Rs. 600, in lieu there of, a total cash liability of Rs. 7,943.

11. It is said that on the face value of the notes the respondent is entitled to an interest of 3 % per annum. If the Government Promissory Notes were made over to the lady that is the amount of interest which she would get. We think that there is much force in this contention. Taking into consideration the amount the respondent has obtained as maintenance and with a view to avoid a future protracted enquiry we think that the appellant should be ordered to pay instead of Rs. 7,443 with reference to the Government Promissory Notes a sum of Rs. 6,462. The order of the learned District Judge is therefore modified in this way: That appellant is required to pay to the respondent a sum of Rs. 6,462. The order of the District Judge with regard to costs which is to be added to this sum will stand. So long as this sum is not paid Under Section 45(1) (c), Guardians and Wards Act, the appellant is to be detained in Civil Jail. The rest of the order of the District Judge about the issue of warrant will stand. The appeal is allowed to the extent and with the variation which we have indicated above; the order of the learned District Judge will stand. The respondent is entitled to her costs, hearing fee 8 gold mohurs. The appellant is allowed two months' time to put in the sum of Rs. 6,462 with costs to the respondent. Let this order be sent down as early as possible. No order need be made on the application in the alternative in view of what has been said above.

McNair, J,

12. I agree.


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