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Dyam Khan and ors. Vs. Sarat Chandra De and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in95Ind.Cas.421
AppellantDyam Khan and ors.
RespondentSarat Chandra De and ors.
guardians and wards act (viii of 1890), section 31 - sale of minor's property--sanction by court--condition subsequent, non-fulfilment of, effect of--purchaser, title of. - .....1893 leaving by his first wife three children who had then attained their majority, and a widow ayesha bibi and four minor children by her. the majors were syed ali, nayan bibi and meherjan bibi, defendants nos. 7, 8 and 9.2. ayesha bibi is defendant no. 6, romjan banu. anarjan and mohabat ali are plaintiffs nos. 3, 4 and 5; mullickjan, the 4th child of amanulla by ayesha bibi, is defendant no. 10. defendants nos. 1 to 5 represent the firm of khetra mohan dey and co., who are said to have purchased from ayesha bibi towards the end of april 1898 the shares of her four minor children in the howla of amanulla. this suit is brought to recover from defendants nos. 1 to 5 me seven annas fifteen gandas share of those children. it should be stated that plaintiff no. 1 is alleged to have.....

1. This is an appeal by the plaintiffs whose suit has been dismissed by the Subordinate Judge of Cammilla. The plaintiffs are Dyam and Abdul Hamid Bhunia, who are in the position of champertors, and Romjan Banu, Anarjan and Mahabat Ali, children of One Amanulla. Amanulla died about 1893 leaving by his first wife three children who had then attained their majority, and a widow Ayesha Bibi and four minor children by her. The majors were Syed Ali, Nayan Bibi and Meherjan Bibi, defendants Nos. 7, 8 and 9.

2. Ayesha Bibi is defendant No. 6, Romjan Banu. Anarjan and Mohabat Ali are plaintiffs Nos. 3, 4 and 5; Mullickjan, the 4th child of Amanulla by Ayesha Bibi, is defendant No. 10. Defendants Nos. 1 to 5 represent the Firm of Khetra Mohan Dey and Co., who are said to have purchased from Ayesha Bibi towards the end of April 1898 the shares of her four minor children in the howla of Amanulla. This suit is brought to recover from defendants Nos. 1 to 5 me seven annas fifteen gandas share of those children. It should be stated that plaintiff No. 1 is alleged to have purchased the interest of Mullickjan, and plaintiff No. 2 that of Romjan Banu in the property in suit. Anarjan, though she at first joined in the suit as a party plaintiff, has now come to terms with defendants Nos. 1 to 5 and declines to prosecute the suit or appeal any further.

3. It appears that in 1898 there were negotiations for the sale of the howla of Amanulla by his children to Khetra Mohan Dey and Co. The reasons ascribed for the sale were that the lands were low lying, they were being encroached upon by the town and jetties of Chandpur and were increasing in value as lands suitable for jute godowns but losing their value as mere cultivable lands. In February 1898 the widow of Amanulla joined with his major children in executing a byanapatra or agreement to sell to Khetra Mohan Dey & Co. It was understood that for the sale of the shares of the minors leave of the District Judge would have to be obtained. That was no doubt in the minds of the parties, when they entered into that agreement. On the 17th of February 1898 Ayesha Bibi put in a petition before the District Judge asking to be appointed guardian of her minor children. One paragraph in that petition says that it was necessary to sell certain properties to clear debts incurred by the father of the minors. On 16th March 1898 Ayesha Bibi, as one of the heirs of her husband, joined with the major children in transferring their 8 annas 4 gandas odd share to Krishna Chandra Dey for Rs. 2,809-11-0 (Ex E 1). On 30th March 1898, Ayesha Bibi was duly appointed guardian of the persons and property of her minor children, and thereupon on 2nd April 1898 she filed a petition (Ex. C) for leave to sell. On the same day the District Judge sanctioned the sale of the property provided the bonds, meaning the three bonds, mentioned in the petition Ex. C, on which the estate of Amanulla was still indebted, were produced before him endorsed as fully satisfied on 18th day of May 1898. The sanction having been given in that form another kobala was executed by Ayesha Bibi on behalf of her minor children conveying their 7 annas 15 gandas odd share to Krishna Chandra Dey for a similar sum of Rs. 2,809-11-0. This kobala does not bear any date but we find that the stamp was purchased on 23rd April and the deed was registered on 28th April, so that it must have been executed within those six days. On the 18th May 1898 the bonds were not in fact produced- before the District Judge though he twice gave time for their production. On the 27th July the District Judge made an order purporting to withdraw the conditional sanction of 2nd April 1898. The bonds as a matter of fact were never produced before him, but three registered receipts were put in on 27th June 1898 which purported to be executed by the obligees of those bonds stating that their respective bonds, had been duly paid and discharged. They are Exs. F, F1 and Ex. (C). The sale had been carried into, effect and possession given to defendants Nos. 1 to 5, who have ever since been in possession of the land. Plaintiffs Nos. 1 and 2 profess to have purchased the interests of Mullickjan Bibi and Romjan Banu by two kobalas which the learned Subordinate Judge has found to be sham transactions and without consideration. On the strength of these alleged purchases they obtained the concurrence of the other three plaintiffs arid filed this suit on 21st April 1910. The suit is obviously a purely speculative one brought by plaintiffs Nos. 1 and 2, Finding that the value of the property in the locality had materially increased since 1898 they purchased this litigation with a view of making some profit out of it.

4. The only question with which we need deal is that of the sale in 1898. The learned Subordinate Judge has found that it was a perfectly good sale, that the interests of the minors passed and that the sale cannot now be rescinded. If the point be decided against the plaintiffs it is obviously unnecessary to go into the farther question, which the learned Subordinate Judge has also decided against them, namely, as to the validity of their own purchase from Mullickjan and Romjan Banu.

5. It has been argued that the sale in 1898 by Ayesha was in some way or other a fraud upon the minors. We had some difficulty in ascertaining from the learned Vakil for the appellants what was the precise fraud which he now alleged. There is no doubt what was the fraud alleged in the plaint. But he stated here that the fraud of which he complained was that Syed Ali, the elder brother of the minors, misappropriated the money for which their shares in the property had been sold. Of that there is no evidence at all upon the record, and it need hardly be stated that if that were the fraud alleged the cause of action would be totally different. The suit would not be against defendants Nos. 1 to 5 but against Syed Ali as having misappropriated the minor's property.

6. It has been suggested that the sale by Ayesha Bibi was defective because it was made under a conditional order of the District Judge and that the condition was not fulfilled. We agree with the learned Subordinate Judge in saying that the condition which the District Judge imposed was not a condition precedent affecting the sale but a condition subsequent, imposed in order that he might satisfy himself that Ayesha Bibi had properly applied the money realised by the sale in the discharge of the minor's debts. Had the learned District Judge imposed a condition such as that found in Section 31 (3)(a) of the Guardians and Wards Act (VIII of 1890) the sale could not have been completed without the sanction of the Court. He, however, did not do so, and we presume that he did not intend to do so. The condition which he imposed that the bonds should be shown to him fully discharged would not and could not affect the sale. It is obvious that the bonds could not be so produced before him until the sale had been completed, the money had been paid, and the sale-proceeds had been applied in the discharge of the bonds.

7. Then it has been said the debts alleged did not in fact exist and that there was no bond outstanding against the estate of Amanulla for which the minors would have been liable. As to this we have no evidence on the record. The evidence that we have points to the bonds having been in existence and we have the registered receipts pf the holders of these bonds that their debts had been discharged. The District Judge must have satisfied himself before granting the leave to sell that there ware debts outstanding which had to be cleared off.

8. Then it is urged that the minors' estate would not have been liable for the whole sum of Rs. 921 said to be due upon those bonds, that they would be liable only in proportion to their share in Amanulla's property. This is perfectly true and must have been apparent to the District Judge when he granted the sanction. There is no reason to suppose that the number of heirs of Amanulla was concealed from him or that he was given to understand that the four minors were the only surviving children.

9. Then it has been suggested that the sale was for an inadequate price and in support of this reference has been made to the present prices said to be ruling for this and neighbouring property. There appears to be no force in this argument. We think it is a very strong circumstance in favour of the sale by the minors that the widow and major children of Amanulla were selling their shares at the very same time to the same people for a price much the same as was obtained for the minors' shares. The price paid for the minors' shares was indeed a little higher. This seems to put beyond all doubt the question of the bona fides of the sale in 1838.

10. It was alleged in the plaint that defendants Nos. 1 to 5 were acting in some way in collusion with Syed Ali and his brothers-in-law Karim and Dengu Patari. Of this there is no evidence at all on the record that can be believed. It is suggested that these persons were scheming in some way to defraud the minors. But this sale was duly carried out. The money was undoubtedly received and it is in evidence that Ayesha Bibi applied some of the money in building another bari to which she removed with her minor children.

11. There is one other fact urged with regard to the sale that it has not been shown as alleged in Ayesha's petition that the land was in fact, being washed away. The plaintiff, No. 1, Dyam Khan, admits that there was some washing away by the khal. That, however, though given as a reason for the pale, could not be an essential condition for the sale.

12. The last point is whether the sale in, 1898, which was carried through with the have of the Court was a proper sale at a fair price. There is no doubt upon the evidence on the record that it was.

13. We accordingly agree with the Subordinate Judge in holding that, the transfer to the principal defendants in 18(sic)8 was valid and binding on the minors whose shares were thus transferred. It is unnecessary to investigate the title of the plaintiffs Nos. 1 and 2.

14. The result is that this appeal must be dismissed with costs. Hearing fee Rs. 25.

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