JAGAD BHUSAN SIRCAR Vs. PANNA LAL CHANDRA

JUDGEMENT

(1.) This appeal is by the plaintiffs. The property originally belonged to one Ashutosh Sarkar. It was sold by his widow Jashoda to the father of defendants 10 to 15. The subordinate Judge, differing from the Munsiff, has found that the sale was justified by legal necessity. The document however was not registered. The subordinate Judge, again, differing from the Munsiff, held that defendants 10 to 15 are protected by Section 53-A, T. P. Act. The plaintiffs rely on a later sale by Ashutosh Sarkar's daughter Sudhamoni, pro forma defendant 16 to plaintiff 2. Damages were claimed against defendants 1 to 9 for the removal of certain goods from the property. This claim was dismissed by the Munsif and has now been abandoned, The case however is pressed against defendants 10 to 15 for a declaration of the plaintiff's title and recovery of possession. Two points have been pressed in support of the appeal: (1) that defendants 10 to 15 are not protected by Section 53-A, T. P. Act and (2) that the subordinate Judge has not dealt with the question of legal necessity in a satisfactory manner. The sale by the widow to the father of defendants 10 to 15 took place before the enactment of Section 53- A, T. P. Act. It was contended that that section has no retrospective effect and that therefore it is of no avail to the respondents in the present suit.

(2.) So far as this Court is concerned, that, question is concluded by a decision of a Division Bench in Mahammed Hushen V/s. Jamini Nath Bhattacharji . That decision is binding upon me. It is true that a contrary view was taken by Jack J. in Mohendra Narayan Roy V/s. Prafulla Kumar . It appears that the attention of the learned Judge was not drawn to the earlier decision. That decision being a decision of a Division Bench was binding upon him and no effect can be given to his dissentient view. It is also true that a different view has been taken by the Patna High Court, Jagdamba Prasad V/s. Anadi Nath Roy ( 38) 25 AIR 1938 Pat 337 and the Madras High Court, Kanji and Moolji Brothers v, T. Shanmugam Pillai ( 32) 19 AIR 1932 Mad 734. I was pressed to accept that view. Now, cases in which the point can arise will become less and less with the passage of time. I am therefore not prepared to send this case to a Division Bench on a mere chance that it might be referred to a Full Bench. I prefer to follow the decision which is binding upon me sitting alone. Then, in the second place, it was contended] that Section 53-A has no application because the plaintiffs do not claim under the widow. Here, again, the Courts below have differed. The learned subordinate Judge said this: The contention would be correct apart from legal necessity. But I am not prepared to hold so upon proof of legal necessity. Upon proof of legal necessity the transfer would bind the reversioner, and as such the reversioner would be treated as claiming under the transferor.

(3.) The learned Munsif said this: It is contended that the widow having sold for legal necessity may be said to have represented her husband then. Had she represented her husband there would have been no necessity to sell for legal necessity.