MUKTIPADA DAWN Vs. AKLEMA KHATUN

JUDGEMENT

(1.) THIS is an appeal on behalf of defendant 9 and arises out of a suit brought by the plaintiff for recovery of possession after declaration of her title to the properties in suit. There is a further prayer that it may be declared that a certain decree and the proceedings in execution thereof are not binding against her on the ground that though she had not attained majority before the relevant time she was described in those proceedings as sui juris.

(2.) THE undisputed facts may be shortly stated. Some of the defendants and predecessors in interest of some others had brought a suit (T. S. No. 87 of 1940) against the plaintiff and the pro -forma defendants claiming partition of the properties described in Schedule Ka to the plaint. The suit was decreed ex parte on 10th September 1940 and in execution of the decree for costs defendants 1 to 8 had put up to sale the property described in Schedule Kha to the plaint, which was alleged to have been in the exclusive possession of the plaintiff. It is further stated that the property in suit was purchased by defendant 1 in the benami of defendant 9. It is contended that the plaintiff was a minor both when the decree in T. S. No. 87 of 1940 was passed as also when the decree was put into execution. The plaintiff had originally brought T. S. No. 19 of 1942 on grounds similar to those as in the present suit but she having failed to take necessary steps in time the plaint was rejected by the Court. The present suit was filed thereafter. The plaintiff claims that she is not bound by the decree passed in T. S. No. 87 of 1940 and the sale in execution of the said decree does not affect her title to the property. The defence is that defendant 9 was a bona fide purchaser for value, the plaintiff had attained majority before the passing of the decree in T. S. no. 87 of 1940, and that the plaintiff is not entitled to any relief in the present suit.

(3.) TO prove that the plaintiff was a minor at the relevant time she did not examine herself or her mother. Her husband had been examined and reliance was placed upon the three following documents: (1) A certified copy of the order sheet, recording the appointment of a guardian of the plaintiff, in the Act VIII case wherein it is recorded that the plaintiff was 6 years old in 1928, (Ex. -1A); (2) a certified copy of another order in the same Act VIII case recording that the plaintiff would attain majority on 18th September 1941 (Ex. 1B); and (3) the petition filed in course of the guardianship proceedings by Abdul Barik Midya on 8th June 1926 for being appointed guardian of the person and property of plaintiff (Ex. 3 in the case).