LALOO KARIKAR Vs. JAGAT CHANDRA SAHA

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit for recovery of possession of land upon declaration of title. The land admittedly formed the occupancy holding of one Niamat Karikar, a Mahomedan, who had three sons and four daughters. One of these sons, Nabu, died during the lifetime of his father, and, consequently never acquired an interest in the disputed land by inheritance. Three of the plaintiffs (Nos. 6, 7 and 8) are descendants of Nabu, namely, a daughter and two sons by another daughter. These plaintiffs have clearly no title to enforce. The other five plaintiffs claim through Nagar, one of the surviving sons of Niamat Karikar. The first three plaintiffs are the sons of Nagar, the fourth is his daughter, and the fifth his widow. It is indisputable that they did acquire title to a share of the holding. The first three defendants, who have successfully contested the claim, base their title on a sale which was made in their favour by the widow of Nagar (the fifth plaintiff), who acted in the transaction not only on her own behalf but also as the guardian of her infant sons and daughters. Now, it appears that the two sons of Niamat Karikar who survived him, named Nagar and Yar, owed money to the first three defendants, which was not re-paid at the time of their deaths. the consequence was that one of the creditors sued some of the heirs of Nagar and obtained a decree, while the other creditors took steps to enforce their dues by suits. In these circumstances, the widow of Nagar sold the disputed land to the first three defendants in 1901 in satisfaction of their dues. The holding at that time was worth less than Rs. 300, and each of the first three defendants purchased an one-third share. The sale took place by delivery of possession, as each of the shares conveyed was less than Rs. 100 in value. The plaintiffs instituted this suit for recovery of the land, on the allegation that the contesting defendants were trespassers in wrongful possession. In answer to this claim, the defendants set up their title by purchase in their written statement. The question thereupon arose whether the sale by the mother had conferred a valid title on them. The Courts below have answered this question in favour of the defendants, on the authority of the decisions in Mafazzal Hosain v. Basid Sheikh 34 C. 36 : 4 C.L.J. 485 : 11 C.W.N. 71 and Ram Charan Saryal v. Anukul Chandra 34 C. 65 : 4 C.L.J. 578 : 11 C.W.N. 160 and have dismissed the suit. On the present appeal by the plaintiffs, it has been argued that the decisions mentioned can no longer be regarded as good law, in view of the pronouncement made by the Judicial Committee in Imambandi v. Mutsaddi 47 Ind. Cas. 513 : 45 I.A. 73 : 45 C. 878 : 28 C.L.J. 409 : 35 M.L.J. 422 : 16 A.L.J. 800 : 24 M.L.T. 330 : 23 C.W.N. 50 : 5 P.L.W. 276 : 20 Bom. L.R. 1082 : (1919) M.W.N. 91 : 9 L.W. 518 (P.C.). We are of opinion that this contention is well founded and must prevail.

(2.) In the case of Imambandi v. Mutsaddi 47 Ind. Cas. 513 : 45 I.A. 73 : 45 C. 878 : 28 C.L.J. 409 : 35 M.L.J. 422 : 16 A.L.J. 800 : 24 M.L.T. 330 : 23 C.W.N. 50 : 5 P.L.W. 276 : 20 Bom. L.R. 1082 : (1919) M.W.N. 91 : 9 L.W. 518 (P.C.) the Judicial Committee held that under the Muhammadan Law a mother has no power as de facto guardian of her infant children to alienate or charge their immoveable property. If such an alienation is made, it is not necessary for the infants to have it sat aside within three years after attainment of majority under Article 44 of the Schedule to the Limitation Act, because as pointed out by Lord Robson in Mata Din v. Ahmad Ali 13 Ind. Cas. 976 : 39 I.A. 49 : 34 A. 213 : 15 C.L.J. 270 : 23 M.L.J. 6 : 16 C.W.N. 338 : 11 M.L.T. 146 : (1912) M.W.N. 183 : 9 A.L.J. 215 : 14 Bom. L.R. 192 : 15 O.C. 49 (P.C.), the alienation must be deemed to have been effected, not by a guardian, but by a wholly unauthorised person. The infant whose property has thus been alienated is consequently entitled to institute a suit for recovery of possession within twelve years from the date of sale, or within three years from the attainment of majority, whichever may be the later date. From this point of view the claim by the first plaintiff is barred by limitation, be. cause, as the Trial Court found, he had attained majority more than three years before suit, while the sale had taken place fourteen years before. This objection does not apply to the plaintiffs Nos. 2, 3 and 4.

(3.) The defendants have argued, however, that the decree for possession in favour of such of the plaintiffs as are entitled to succeed should be conditional on re-payment of a proportionate share of the ancestral debts which were payable put of the assets left by Nagar, We are of opinion that effect should be given to this contention, If the sale which took place in 1901 to satisfy the debts due to the first three defendants be deemed ineffectual, the legal effect would be that those debts would stand revived. Bat the defendants should not be driven to institute suits to enforce their claims or to revive proceedings in execution of the decree already obtained, and, if a question of limitation arose, to invoke the aid of the principle, repeatedly recognised by the Judicial Committee, that rights suspended for a time may be revived and enforced when the bar is removed: Nrityamoni Dassi v. Lakhan Chunder Sen 33 Ind. Cas. 452 : 43 C. 660 : 24 C.L.J. 1 : 20 C.W.N. 522 : 30 M.L.J. 529 : (1916) 1 M.W.N. 332 : 8 L.W. 471 : 18 Bom. L.R. 418 : 20 M.L.T. 10 (P.C.)p; Rance Sumo Moyse v. Shooshee Mcokhee Burmonia 12 M.I.A. 244 : 11 W.R. 5 (P.C.) : 2 B.L.R. 10 (P.C.) : 2 Suth. P.C.J. 173 : 20 E.R. 331 : 2 Sar. P.C.J. 424; Prannuth Roy Chowdhury v. Rookea Begum 7 M.I.A. 323 : 4 W.R. 37 (P.C.) : 19 E.R. 331 : 1 Suth. P.C.J. 367 : 1 Sar. P.C.J. 692, There can be no doubt that the debts wore recoverable out of the assets, and, it is immaterial whether we adopt the view taken in Amir Dulhin v. Baij Sath Singh 21 C. 311 : 10 Ind. Dec. (N.S.) 839 and Davalava v. Bhirnasi Dhondo 20 B. 338 : C Ind. Dec. (N.S.) 787 that they might be recovered by sale in execution of a decree in a suit against such of the heirs as might be in possession, or the view taken in Muhammad Awais v. Mar Sahai 7 A. 716 : A.W.N. (1885) 172 : 4 Ind. Dec. (N.S.) 804; Jofri Begum v. Amir Muhammad Khan 7 A. 822 : A.W.N. (1885) 248, 4 Ind. Dec. (N.S.) 636 and Dallu Mal v. Hari Das 23 A. 263, A.W.N. (1901) 75 that the heirs who had not been mads parties to the suit might recover back their shares in the property sold, subject to payment to the purchaser of their proportionate share of the judgment debt. Whichever view is adopted, the essence of the matter is that each of the heirs is liable to satisfy the debt, to the extent of the assets in his share. These considerations do not apply to the fifth plaintiff, the widow of Nagar, who was competent to sell her own share and cannot now ignore her act.