KISHORILAL MARWARI Vs. ADHAR CHANDRA BANERJEE

JUDGEMENT

(1.) The facts giving rise to this appeal may be shortly stated as follows : The property in dispute is a colliery known as the Ninga Colliery and it belonged originally to one Ganpat Marwari. Ganpat had four sons, namely, Shew-karan, Baijnath, Ramkumar and Thakursidas, and the father together with the four sons constituted a joint Hindu family governed by the Mitakshara law. Of these four sons Baijnath passed out of the family by adoption. Shewkaran also separated from the joint family sometime before the death of, Ganpat on taking a sum of Bs. 25,000 as the value of his share in the joint property. Thakursidas died in the lifetime of Ganpat leaving behind him a widow and a son named Ramjiban. After Thakursidas, Ganpat died and the latter was followed soon after by Ramkumar. At the time of Ramkumar's death which happened in 1919 the only male members of this joint family were Jagamohan and Kishori, the sons of Ramkumar and Ramjiban, the son of Thakursidas. Kishori is the plaintiff in the present suit. On 30 March 1920, Ramkumar's widow, Bhagabani Bai, applied to the District Judge of Burdwan, for appointment of a guardian in respect of the person and property of her two minor sons, Jagamohan and Kishori. The order appointing her as guardian was made on 20 April 1920 and both in the application for guardianship as well as in the certificate the date of birth of Kishori was stated to be 17 May 1917. If this date was correctly given Kishori would attain majority on 17 May 1938.

(2.) In 1935 defendants 1 to 57 who are the superior landlords of the Ninga Colliery instituted a suit for recovery of rent due in respect of the same. The two sons of Shewkaran as well as Jagamohan and Kishori were made parties defendants to that suit. The suit culminated in an ex parte decree on 22 August, 1935. The decree was put into execution and the colliery was sold and purchased by defendant 58, Kishori, through his certificated guardian, attempted to have the ex parte decree set aside, but this application was dismissed for default. His attempt at revival of this proceeding was also dismissed and then the present suit was instituted on 4 February 1937. Kishori in this suit, prays for a declaration that the ex parte rent decree as well as the sale held thereunder were not binding on him inasmuch as he was a minor both at the date of the institution of the suit as well as at the time when the decree was obtained and far from being represented by a competent guardian he was wrongly described as a major in the suit. He further prays for a declaration that on subsequent partition between him on the one hand and Jagamohan and Ramjiban on the other, he acquired a sixteen annas title to the colliery. The suit was contested by defendants 1 to 58. The other defendants who are the brother and the agnatic cousins of the plaintiff supported the plaintiff's case. The trial Court held on evidence that the plaintiff was a minor when the decree was made and consequently the decree and the sale held in pursuance of that,, were not binding on him. It however rejected the story of partition set out by the plaintiff and held that Kishori was entitled to the colliery jointly with Ramjiban and Jagamohan.

(3.) Against this decision there was an appeal taken to the Court of the District Judge of Burdwan by the auction purchaser. Kishori also filed an appeal attacking that part of the judgment which negatived his claim to the sixteen annas share of the colliery. Both the two appeals were heard together by the learned District Judge and by his judgment dated 31st October 1938, he allowed the appeal of the auction purchaser being of the opinion that Eishori was not a minor at the date when the decree was obtained. The other appeal was allowed in part on a finding that Ramjiban had no interest in the colliery although the property was still joint as between the plaintiff and Jagamohan. It is against this decision that the present second appeal has been preferred. Mr. Sen who appears in support of the appeal has argued before us that in arriving at a finding regarding the age of the plaintiff the learned District Judge was in error in law in refusing to consider certain material pieces of evidence which consisted of the application for guardianship made by the mother and the order of the District Judge passed thereon, both of which contained a recital regarding the age of the plaintiff. Be contended that had the District Judge taken this evidence into consideration his decision would have been different.