DWIJENDRA MOHAN SARMA Vs. MONORAMA DASI

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Huda in a suit for recovery, of possession of an one-third share of a homestead upon declaration of title and for incidental reliefs. The Court of first instance dismissed the suit upon appeal, the Subordinate Judge reversed that decision. On second appeal, to this Court, Mr. Justice Huda has set aside the decree of the Subordinate Judge and restored that of the primary Court.

(2.) The disputed property belonged to an infant, Kandrapa Kumar Sen, whose father, Kamini Kumar Sen, was appointed as guardian of his property by the District Judge. The root of the title of the plaintiff is a conveyance executed by the guardian on the 14 January 1906 with the sanction of the District Judge, and registered three days later. The foundation of the title of the contesting defendant is a prior conveyance executed by the guardian on the 4 April 1905 and registered six days later. This conveyance like the one previously mentioned, recites that "it has been executed with the sanction of the District Judge." The defendants, however, failed to satisfy the Courts below that the assertion made by the, executant of their conveyance was well-founded on fact; for whereas the record shows that the transaction of the 14 January 1906 was sanctioned by the District Judge, no order has been traced in favour of the transaction of the 4 April 1905. The case has, consequently, been tried on the hypothesis that the conveyance set up by the defendant, though, prior in point of time, was executed without the sanction of the District Judge, while the conveyance set up by the plaintiff, though subsequent in point of time, was executed with the sanction of, the District Judge. In these circumstances, the question arose whether the plaintiff is entitled to treat the defendants as persons without title and to obtain relief on that basis.

(3.) Section 29 of the Guardians and Wards Act, 1890, provides-that a guardian of the property of a ward shall not, without the previous permission of the Court, mortgage, charge or transfer by sale, gift, exchange or otherwise1, any part of the immoveable, property of his ward. Section 30 then ordains that the disposal of the immoveable property by a guardian in contravention of either of the two last foregoing sections, is voidable at the instance of any other person affected thereby. It consequently be maintained, that the conveyance which is the foundation of the title of the defendants is not liable to be impeached. The defendants have appreciated this danger and have relied upon a circumstance extraneous, to the provisions of the Guardians and Wards Act.