LAWS(ORI)-1949-12-1

MANGLU MEHER Vs. SUKRU MEHER

Decided On December 17, 1949
MANGLU MEHER Appellant
V/S
SUKRU MEHER Respondents

JUDGEMENT

(1.) Defendants 1 to 3 are the appellants in this second appeal. It arises out of a suit filed by the plaintiffs to set aside and alienation and to recover the property comprised therein from the possession of the defendants. Defendant 4 and plaintiff 1 are the sons of one Bhuban Meher. Plaintiff 2 is the son of plaintiff 1. Defendants 5, 6 and 7 are the sons of defendant 4. The alienation sought to be impeached is a sale-deed, Ex C, dated 1st March 1933 of lands of the extent of 1-5 acres (it may be noted that the plaint mentions lands of 1.26 decimals) which admittedly are the joint family property of the plaintiffs and defendants 4 Page 1 of 6 Manglu Meher and Ors. vs. Sukru Meher and Ors. (17.12.1949 - ORIHC) to 7. The sale-deed purports to have been executed by Bhuban and his two sons defendant 4 and plaintiff 1. Defendant 4 has signed it also for his minor sons 6 to 7 and plaintiff 1 for his then minor son, plaintiff 2. The alienees under the sale-deed are the brothers of Bhuban Meher, viz., defendant 3 and the father of defendants 1 and 2. The consideration for the sale deed is a sum of Rs. 155. The case for the plaintiffs was that plaintiff 1 did not execute the sale deed either for himself or as guardian of his minor son, plaintiff 2 and that he was not a consenting party to the alienation. The signature of plaintiff I appearing on the sale deed, Ex. C, was alleged to be forgery. Both the Courts below have found it to be genuine and that finding having become conclusive, it must now be taken that the plaintiff was also an executant of the sale-deed for himself and his son. Since, however, the sale-deed has been executed on behalf of the then minor plaintiff 2 (as also on behalf of minor defendants 5, 6 and 7 who are still minors, though they have not come forward to challenge the alienation), the question as to whether the Bale deed is valid and binding as being justified by legal necessity has been raised in the Courts below and is the subject-matter of issue 3 The Courts below have found that Rs. 106-7-3 out of the Bale consideration was for the purpose of discharging the decree amount due to one Narain Gountia from the plaintiff's family and that the said sum was actually utilised for payment of the said decree, as appears from the endorsements on the decree, marked as Exs. B and B-1. Both the Courts however set aside the alienation on the ground that neither the actual necessity nor a bona fide inquiry as to the existence of necessity for the balance amount of about Rs. 50 has been made out by the alienees. They accordingly passed the decree in favour of the plaintiffs for possession of the suit property on condition of the contesting defendants 1 to 3 paying up the sum of Rs. 1C6-7-3 found to have been applied for legal necessity out of the consideration for the same. It is against this decree that defendants 1 to 3 have come up in second appeal.

(2.) It is argued for the appellant that the judgments of the Courts below are erroneous and that since the major portion of the consideration for the sale, deed has been found to have been applied for legal necessity, the sale had to be upheld and that the Courts below have not correctly appreciated the material questions arising in a case of this kind. Before dealing with that matter, it is necessary to notice two other questions that arise in the suit. The suit property is a land situated in the district of Sambalpur of which the plaintiff's family are the occupancy tenants. The sale purported to be by means of a document, EX. c which has not been registered. It is pointed out that under Section 46 (3), Central Provinces Tenancy Act, such a transfer is not valid except as covered by the proviso thereto and that the registration of a transfer not covered by the proviso to Sub-section (3) is prohibited under Sub-section (5). This point, however, is not a substantial one, because it is clear from that subsection itself as also from Section 47 that such a transaction is only voidable and can be avoided, not by the very transferors themselves, but by the persons who are indicated in Section 47 and that too within two years from the date on which the alienees obtained possession under the transfer. Admittedly the alienees have been in possession from the date of the sale in 1933 and are also themselves the persons being brothers of Bhuban Meher, who might have been entitled to avoid the transfer under Section 47 if the alienation had been in Page 2 of 6 Manglu Meher and Ors. vs. Sukru Meher and Ors. (17.12.1949 - ORIHC) favour of the strangers. This contention has therefore no merit.

(3.) The fact that the sale-deed, EX. c is not registered, raised another difficulty for the contesting defendants, namely, that no title as such has passed to them under the sale deed. They are, however, entitled to rely on Section 63A, T. P. Act, inasmuch as it has been definitely found by both the Courts below and virtually admitted by defendant 4 who is an executant of the sale-deed that the vendees have been in possession of the property sold from the date of the sale in pursuance of the same. The question that has been raised is whether Section 53 A would avail the contesting defendants as against plaintiff 2 (and defendants 5 to 7), who were minors at the time of the execution of the sale deed. It may plausibly be contended that since Section 53A, T. P. Act, is a statutory recognition of the principle of estoppel embodied in the doctrine of part performance, the same would not avail as against minors since there can be no estoppel against a minor. There is. however, no scope for any such contention in view of the recent decision of the Privy Council in Subramanyan v. Subba Rao, A.I.R. (35) 1948 P. C. 96: (I.L.R. (1949) Mad. 141) which has authoritatively decided that if a minor is a party to a sale-deed, through his guardian he is as much a transferee within the meaning of Section 53A and that therefore the statutory protection given to the alienee under Section 63A is equally applicable against him.