GANESH CHANDRA BAG Vs. RASHBEHARI CHAKRABARTI

JUDGEMENT

(1.) This is an appeal against the judgment and decree passed by Sri S. K. Biswas, Subordinate Judge, 3rd Court, Midnapore, dated 13-6-68 in Title Appeal No. 682 of 1977 affirming those of Sri A. K. Sil, Munsif, 2nd Court, Tamluk, dated 27-9-67 in Title Suit No. 287 of 1965.

(2.) The plaintiff is the appellant in this Court. The plaintiff seeks a declaration to the effect that the kobala described in the 'Kha' schedule to the plaint in favour of the defendants Nos. 1 to 3 in respect of the suit land is fraudulent and collusive and as such not binding upon the plaintiff. The plaintiff also prays for permanent injunction restraining the defendants Nos. 1 to 3 from interfering with the plaintiff's possession of the same. According to the plaintiff 'Ka' sch. lands along with other lands belonged to the plaintiff's grand-father Trailokya. His son was Sudhir, The plaintiff is the eldest son of Sudhir. Sudhir had two sons who predeceased the plaintiff. Defendant No. 4 is the second wife of Sudhir. The plaintiff and his father used to stay with Trailokya who was affectionate to them. Trailokya subsequently executed a registered deed of Arpannama on 12th Baisakh, 1356 B.S. in favour of the plaintiff transferring 'Ka' schedule and other lands and delivered possession thereof. The plaintiff was born on 15-10-45. (sic) As the plaintiff was a minor Sudhir used to possess on behalf of the plaintiff. It is asserted that the suit land exclusively belonged to the plaintiff and that the plaintiff's father had no interest. After attaining majority the plaintiff came to learn that defendants Nos. 1 to 3 fraudulently got a kobala executed in their favour from his mother in respect of the 'Ka' schedule land. It is further asserted that his mother had no power to dispose of the property belonging to him during his minority. The plaintiff has treated the sale as void after attaining his majority.

(3.) Defendants Nos. 1 to 3 contested the suit. Their contention is that the plaintiff was a mere benamdar of his father Sudhir in respect of the deed of gift, that they purchased the suit land for a consideration of Rs. 6,000 as the plaintiff's mother was in utter need of money for defraying the expenses in connection with the criminal case started against her and for satisfying certain debts of the plaintiff's father and also for purchasing some land of her choice. Since purchase the defendants are in possession of the suit land. It was also stated that the plaintiff was born on 14-1-44 and attained majority on 14-1-62. Objection with regard to the maintainability of the suit and that the suit is barred by limitation were also raised. With regard to maintainability of the suit the learned Munsif found that the defendants' kobala must be held as a voidable deed as the transfer of a minor's property was made without permission of the court and as such in violation of Section 8 of the Hindu Minority and Guardianship Act. But the learned Munsif was of opinion that the document must be avoided before the plaintiff gets any relief in the suit and in the instant suit as the plaintiff did not make any prayer for setting aside the deed the suit, as framed, was not maintainable. With regard to the question whether the plaintiff's mother sold the property for legal necessity the learned Munsif finds as follows :-- "I am unable to hold that Durgamoni sold the plaintiff's property for legal necessity. The plaintiff would have, therefore, got a decree for setting aside the sale deed but for his making failure to make such a prayer in this suit. In the above view of the matter, the plaintiff therefore cannot get a decree for a declaration as prayed for by him." On the question of possession the learned Munsif finds "strong probability to hold that the plaintiff is in possession of the suit land". After finding such, the learned Munsif held that the plaintiff would have been entitled to the permanent injunction had the suit been found maintainable. The learned Munsif found that the plaintiff was the real owner of the suit property. The learned Munsif accepted the plaintiff's date of birth as 16-10-45 and consequently found that the suit was not barred by limitation. The learned Munsif, however, holding an opinion that the plaintiff ought to have made a prayer in the plaint for cancellation of the document, found that the suit was not maintainable and dismissed the suit. Being aggrieved, the plaintiff preferred an appeal before the learned District Judge. The appeal was heard by the learned Subordinate Judge who affirmed all the findings of the learned Munsif and dismissed the appeal. Hence, the appeal by the plaintiff.