UPENDRANATH DAS Vs. ATAL BEHARI DAS

JUDGEMENT

(1.) THIS is a Defendant's appeal against the judgment dated 14th November, 1950 of Shri T.V. Rao, Subordinate Judge, Balasore reversing the judgment of he trial court arising out of a suit brought by the Plaintiff Atal Behari for setting aside a Kobala (Ext. A) dated 27th April, 1939 which purports to have been executed by the Plaintiff's mother Bauli and by the Plaintiff's maternal uncle as guardian of the Plaintiff in favour of the present Defendant -Appellant. Plaintiff's contention is that the Kobala does not convey his interest in the property, as the maternal uncle, who represented him as the guardian during his minority was not his guardian either de facto or de jure and further that the mother had absolutely no interest in the property at the time, the Plaintiff alone being the sole owner. The trial court dismissed the Plaintiff's suit finding that the mother acted as the guardian of the minor in executing the document even though she does not designate herself as such in the body. The lower appellate court, however has reversed the decree on the technical ground that in the heading of the document itself, the mother appears to convey her interest by virtue of the document and the minor's interest which purports to have been conveyed by the maternal uncle, who is not the guardian. It is to be noted that both the courts have concurrently found, that in fact, the maternal uncle was never the guardian of the minor either de facto or de jure. It is further to be noted, that in fact, both the courts have also given us the benefit of finding that the transaction in suit (Ex. A) dated 7th April, 1939 is supported by legal necessity. The only question, therefore, that remains to be determined is, whether the interest of the Plaintiff, who was a minor on the date of the execution of the document, was conveyed on the basis thereof. The entire document was placed before me. It is significant to mark that even though the mother has been described as one of the executants of the document, the body of the recitals makes it absolutely plain that the entire property which is the subject matter of the Kobala, was owned by the minor Atal Behari at the time. There is no indication in the recital of the document that the mother had any interest whatsoever. The recitals are in conformity with the legal position that in fact the mother had no interest in the property which was solely owned by the son Atal Behari, the mother having only a right of maintenance. On a plain reading of the document, I am definitely of the view that even though she did not designate herself as the guardian of the minor at the time of execution of the document it was the intention of both the parties to the document that she acted in fact, as the guardian of the minor while executing the document. I may in this connection refer to a few decisions where the documents were of similar natura and the different High Courts of India have held that not much importance is to be given to the fact that the mother is not designated as the guardian of the minor in the body of the document if the intention is clear that the minor's properties are being conveyed by the mother as his guardian. The decision of the Bombay High Court in Murari v. Tayana, I.L.R. 20 Bom. 286. The recitals in the document before their Lordships ran to the effect that the property conveyed was the property of he minor as is apparent from the body of the document but, nevertheless, the mother did not describe herself as the guardian of the minor. Their Lordships found that the transaction is binding against the real owner, who was then a minor as the transaction was for legal necessity. The same view was also taken by their Lordships of the Calcutta High Court in Judoonath Chuckerbutty and Anr. v. Mr. James Tweedie and Ors., 11 Weekly Reporter 20 and by the Allahabad High Court in Makundi v. Sarabsukh, I.L.R. All. 417. It is to be noted here that the document before their Lordships of the Privy Council in Hunoomanpersaud Panday v. Mussumat Babooee Munraj Koonweree, 6 Moo Ind App 393 was executed by the mother, there being no mention of the minor at all. On the contrary, in the body of the recitals themselves, the proprietorial interest; of the property was being conveyed. Their Lordships observed that deeds in India should not be strictly and literally construed but a liberal construction has gob to be put to the documents to gather the real intention of the parties to the document. It was found that the intention of the parties in the document was to convey the minor's interest it being transparent that the mother had absolutely no interest on the date of execution of the document. It is clear, therefore, from the above considerations that Plaintiff's interest had been conveyed on the basis of the Kobala dated 27 -4 -1939 as it has been found by both the courts that it was for legal necessity. The Plaintiff's suit, therefore, must fail. The appeal is allowed, the judgment and decree of the lower appellate court are set aside and the judgment and decree of the trial court are restored. The Defendant -Appellant is entitled to costs throughout.