SHYAMAL KANTA SINHA Vs. UMED ALI, SK

JUDGEMENT

(1.) This is an appeal at the instance of the Plaintiff. The suit which was instituted as far back as September 19, 1956, has had a long and chequered history. Admittedly, the properties in suit originally belonged to the three brothers, Kamala, Bimala and Shyamala (the Plaintiff). They got the properties as heirs of their father each having one-third interest in the same. When the father died, Bimala and Shyamala were minors and Kamala was an adult. Their mother Nighur Bala Dasi. was the certificated guardian of Kamala and the Plaintiff by virtue of an order passed by the District Judge, Birbhum, on March ' 9, 1933 (Ex. 1). On. January 29, 1947, Kamala (Defendant No. 2), his wife (Defendant No. 3) and Nighur Bala Dasi on behalf of minors, Bimala and Shyamala, granted a permanent lease of the ka schedule lands to the Defendant No. 1 on, getting a selami of Rs. 1,800 and the rent was fixed at Rs. 9-1-6 per annum (Ex. A). On July 26, 1949, Nighur Bala on behalf of the Plaintiff, who was a minor at the time, granted a lease of the kha schedule lands to the Defendant on getting a selami of Rs. 400 and the rent was fixed at Rs. 3 per annum (Ex. Al). The Plaintiff attained majority on January 12, 1954, as would appear from the unchallenged evidence on record and also Ex. 1. On September 19, 1956, the Plaintiff instituted the instant suit alleging therein that the transfers made by his mother during his minority were without the permission of the District Judge and, as such, were not binding on him and prayed for joint possession with the Defendant No. 1 on evicting him from one-third share of ka schedule lands and 1/2 share of kha schedule lands. It is not denied that" the Plaintiff had one-third share in the ka schedule lands and 1/2 share in the kha schedule lands. The suit was contested by the Defendant No. 1 and he alleged that the leases were for the benefit of the minors. The learned Subordinate Judge, however, held that the leases were void having been executed by the certificated guardian without the sanction of the District Judge and decreed that suit. The Defendant No. 1 appealed and the learned additional District Judge held that the leases were not void but merely voidable and that the Plaintiff cannot get his decree until and unless he reimburses the Defendant for the benefit he has acquired under the leases. As the materials before him were not sufficient to enable him to come to any decision on this point, he remanded the case back for a consideration also of the question as to whether the Plaintiff had derived any benefit out of the leases. Thereafter the Plaintiff amended the plaint by striking out the prayer for recovery of joint possession and substituted therefore the prayer for partition. He had also prayed for addition of the Defendants Nos. 2 to 4 and the State of West Bengal as the Defendant No. 5. These prayers were allowed by the Court and the Defendant No. 1 also filed additional written statement, but the added Defendants did not appear. Thereafter the Plaintiff prayed for a further amendment to include a prayer for cancellation of the two deeds of lease. The Defendant No. 1 objected thereto and the learned Judge disallowed- this prayer for amendment holding that to allow it at the time would be infringing Article 91 of the Indian Limitation Act. Thereafter the parties adduced further evidence, and the learned Subordinate Judge, though holding that the leases were voidable transactions, dismissed the suit mainly on the ground that a suit for partition would not be maintainable until and unless the Plaintiff filed a suit to set aside the leases. The Court further held that the suit is bad so far as the State of West Bengal is concerned inasmuch as no notice under Section 80 of the Code of Civil Procedure had been served on it. Against this judgment and decree the present appeal has been filed by the Plaintiff.

(2.) The Plaintiff's mother was his duly certificated guardian. In the leases she described herself only, as the natural guardian. Reading Sections 29 and 30 of the Guardians and Wards Act together it is clear that such a lease would be voidable. It appears that much argument was made in the lower Courts to the effect that as the leases were executed by the mother not as certificated guardian but as natural guardian, Sections 29 and 30 of the aforesaid Act would not apply. In our view this is not a correct proposition. If it is held that a certificated guardian can alienate property qua natural guardian that would be a fraud on the statute itself. Vide also Jagadamba Prasad Lalla v. Anadi Nath Roy, 1938 AIR(Pat) 337 and Hem Chandra Sarkar v. Lalit Mohan Kar,1912 16 CalWN 715 . We therefore, agree with the Court below that the leases in this particular case are voidable documents.

(3.) The next question that arises for determination in this case is as to whether the Plaintiff is bound to file a suit for setting aside the alienations before he can get any relief in the shape of partition. As we have already pointed out, that is the main ground on which the learned Subordinate Judge has dismissed the suit. Mr. Apurba Dhan Mukherjee, the learned Advocate appearing on behalf of the Plaintiff Appellant, has very strenuously contended that that is not correct proposition of law and that it is open to the Plaintiff either to file a suit for cancellation of the documents or to indicate that he does not want to stand by the same in any other way. (Vide Trovelyan as Minors, 5th chap. p. 202). The earliest case appears to be the Eastern Mortgage and Agency Company Ltd. v. Rebati Kumar Ray,1906 3 CalLJ 260. In that case the Court was considering as to whether an alienation by an executor or an administrator without leave of the Court, where such leave is necessary under Section 90 of the Probate and Administration Act, was void or voidable and it was held therein that it was merely voidable. It appears -to have been laid down in that decision that it was not necessary for the party affected by such a mortgage to file a suit to set that aside. The next case appears to be Bijoy Gopal Mukherjee v. Krishna Mahishi Debi. There their Lordships of the Privy Council were considering a question as to whether the reversionary are bound to file a suit for setting aside the alienations made by a Hindu widow. Their Lordships held that the alienation by the widow was not absolutely void but was prima facie voidable at the election of the reversionary heir who may affirm it or treat it as a nullity without the intervention of any Court, /there being nothing to set aside or cancel as a condition precedent to his right of action. He shows his election to treat it as a nullity by commencing an action to recover possession. The Guardian and Wards Act itself contains no provision under which, for the purpose of avoiding such a transaction, a suit has to be filed. What is necessary is that the other person affected by such a transaction in contravention of Section 28 or Section 29 of the Act, must show his intention to avoid the impugned transaction. The principles which were laid down in Bijoy Gopal Mukherjee s case,1907 ILR(Cal) 329 have also been extended to cases where the certificated guardian transferred properties without the sanction of the District Judge (Vide Jagadamba Prasad Lalla v. Anadi Nath Roy , Hem Chandra Sarkar v. Lalit Mohan Kar , Sivanmalai Goundun v. Arunachala Goundan, 1938 AIR(Mad) 822; Lalit Kumar Das Chaudhury v. Nagendra Lal Das, 1940 AIR(Cal) 589 Thus, both on principles and authorities, we are of opinion that it is not necessary that a suit for setting aside the alienations has to be filed by the persons affected by the transfer of immovable properties by a certificated guardian without the permission or sanction of the District Judge, but that he can show his election to do so even as a Defendant or any other way.