PROHLAD CHANDRA CHOWDHURY Vs. RAMSARAN CHOWDHURY

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for recovery of possession of immovable property, upon cancellation of a lease, granted by his mother on the 5 January, 1913, during his minority. The father of the plaintiff, one Goswami Das Chaudhuri, who died on the 15th September, 1901, had married twice. By his first wife, who died during his lifetime, he left two sons, Bamsaran and Brajanath, the first two defendants in this litigation. By his second wife, Ramani Dasi, who survived him, he left two sons, Prahlad Chandra and Dhruvapada; the former is the plaintiff and the latter is the third defendant in this suit. On the 8 July 1905, Ramani Dasi made an application to the District Judge in order that she might be appointed guardian of the person and property of her minor sons. It was stated in this application that the father of the minors had left debts and that it was necessary to dispose of portions of his estate for the purpose of repayment. On the 16 June, 1905, the lady was appointed guardian of the person and property of the two infants. On the 26 July, 1910, an application was made by the lady to the District Judge for permission to grant a permanent lease of the share of the infants in certain properties described in the schedule, to their step-brothers who held the other half share. It was stated in this application that the debts left by the deceased owner amounted to Rs. 12,800 and that one-half of this amount, that is, Rs. 6,400 was payable out of the share inherited by the two infants. Their stepbrothers would, under the proposed lease, undertake the responsibility for satisfaction of the entire sum, in other words, Rs. 6,400 would in substance be the premium payable on the lease. In addition to this, rent would be payable in cash as well as in kind. The names of the creditors and the amount payable to each was set out in the application. On the 2 August, 1910, the substance of the application was publicly notified. No one appeared to object, and on the 10 August, 1910, the District Judge granted the permission asked for. On the 5 January, 1913, Ramani Dasi, in exercise of the authority granted by the District Judge, executed a permanent lease on behalf of her minor sons in favour of her step-sons. The premium was fixed at Rs. 6,400, to be applied in satisfaction of a half share of the debts left by their deceased father. The gross cash rent was fixed at Rs. 201-11-8; after deduction of Rs. 152-11-8, the head rent payable to the superior landlord, the Maharaja of Burdwan, the net rent was fixed at Rs. 49. In addition, 69 bundles of fuel were to be delivered as rent in kind, and the minors would also enjoy the fruits of their share of the mangoe trees in the orchard prepared by their father. The step-brothers of the minors have been in occupation of the properties for many years under this lease.

(2.) On the 20 August, 1920, Prahlad Chandra, the elder of the two minors who had meanwhile attained majority, instituted the present suit for cancellation of the lease in respect of his share and for recovery of possession thereof. His younger brother, who was still a minor at the date of the suit, was made a defendant. The case for the plaintiff is that the transaction was throughout fraudulent, that his mother never made the application for appointment as guardian and that the document she was induced to execute was represented to her to be a settlement for six years only. The defendants denied these allegations and pleaded the bar of limitation. The Subordinate Judge has held the suit barred under Art. 44 of the schedule to the Indian Limitation Act, inasmuch as the plaintiff had attained majority more than three years before its institution. On the merits, the Subordinate Judge has found that the application for guardianship had been made by the mother of the plaintiff who later on executed the lease with full knowledge of its contents. The Subordinate Judge has further found that the transaction was beneficial to the infants, and in this view he has dismissed the suit. The judgment of the Subordinate Judge has been assailed in this Court as erroneous in law and in fact on every material point.

(3.) As regards the question of limitation, the Subordinate Judge has held that the plaintiff was born in Baisakh 1303 (April-May 1896). In this view the plaintiff attained majority in April-May 1917, and the present suit, instituted on the 20 August, 1920, would be barred by limitation, as article 44 of the schedule to the Indian Limitation Act requires that a suit by a ward who has attained majority, to set aside a transfer of property by his guardian, must be instituted within three years from the date when the ward attains majority : Brojendra v. Prasanna (1920), Krishna V/s. Bhagaban (1916) 34 Ind. Cas. 188, Arumugam V/s. Panayadian A.I.R. 1921 Mad. 425. The plaintiff has consequently been driven to contend that he was born in Baisakh 1305 (April-May 1899). This is contrary to the statement made in the guardianship application to the effect that the elder son was born in Baisakh 1303 and the younger son in Pous 1308. There has been considerable discussion at the bar as to the admissibility of this recital in evidence, and our attention has been invited to the decisions in Krishna V/s. Akbar (1881) 9 C.L.R. 213, Dhanmull V/s. Ram Chunder (1890) 24 Cal. 265, Monindra V/s. Ram Krishna (1915) 21 C.L.J. 621, Mahomed V/s. Yeoh A.I.R. 1916 P.C. 242, and Harakumar v. Jogendrakrishna A.I.R. 1924 Cal. 256. These decisions support the view that the recital of the date of birth in a guardianship application is not by itself admissible in evidence upon mere production of the document, but may be rendered admissible in contingencies which need not be exhaustively specified for our present purpose. The recital is in substance a statement by the person who makes the application. If the conditions mentioned in Section 32(5) of the Indian Evidence Act are fulfilled, for instance, if the person who made the statement is dead or cannot be found and had special means of knowledge of relationship, the statement may be made admissible. Or, again, if the person is examined as a witness, his credit may be impeached under Section 155 by the production of the recital in the application, in the case before us, no foundation has been laid for the reception of the recital in evidence. The lady was examined as a witness, but the recital was not put to her. On the other hand, our attention has been invited to the fact that the statement in the guardianship application relating to the date of birth of the youngest son is inaccurate. He is said to have been born in Pous 1308 (December 1901, January 1902); this would make him posthumous -as his father died on the 15 September, 1901. But the evidence shows that he was about one year old when his father died, From this it may well be urged that the statement as to the date of birth of the other son was equally unreliable and that even if it could have been made admissible in evidence, the Court would not have derived much assistance. We have consequently to depend upon the oral evidence on the point. The Subordinate Judge has disbelieved the evidence of Ramani Dasi as self-contradictory, and there can be little doubt that her statements upon other matters are not quite trustworthy. In such circumstances, we are not prepared to differ from the conclusion of the Subordinate Judge, specially as the burden lies generally on the plaintiff to prove that he is in time; see the Civil P. C., 1908, Order 7, Rule 1(e) and Order 7, Rule 6. We do not desire, however, in view of the arguments which have been addressed to us, on the merits of the controversy, to rest our decision of the appeal solely on the question of limitation.