BANKU BEHARY MONDAL Vs. BANKU BEHARY HAZRA

JUDGEMENT

(1.) This is an appeal by the defendant in a suit for declaration of the plaintiffs title to an eight annas share in the disputed land and for joint possession to the extent of that share, as also for mesne profits. Admittedly the lands in suit belonged to the plaintiffs father Hari Charan Hazra who died in 1915, leaving behind him his widow, a daughter and four sons, namely the plaintiffs and their two brothers - Fakir and Khanda. The plaintiffs were mere infants at the date of their father's death. Their case is that plaintiff 1 was aged about three years, having been born on 13 Baisack 1819 B.S., and that plaintiff 2 was between one and two years, having been born on 7 Falgoon 1321 B.S. Their mother also died shortly after their father.

(2.) The plaintiffs case is that during their minority, Fakir and Khanda sold the disputed lands to the defendant by two sale deeds, namely Ex. A, dated 24 September h 1926, and Ex. A i) dated 2l October, 1927; that neither Fakir nor Khanda was their guardian - either de jure or de facto; that they were brought up by their sister; and that these sales were for no legal necessity. The case of the defendant is that Fakir was the de facto guardian of the plaintiffs during their minority and was also their natural guardian; and that he as such guardian sold the shares of the plaintiffs also by the two sale deeds; that the sales were for legal necessity, and were thus binding on the plaintiffs unless and until these were set aside; that as the plaintiffs did not seek to set aside the kowalas in this suit, their claim for recovery of possession was not maintainable; and that the plaintiffs having attained majority more than three years before the institution of the present suit, their claim for setting aside the transactions would be barred by limitation under Art. 44, Limitation Act.

(3.) The Court of first instance found that the four brothers constituted a joint family of which Fakir was the karta and that Fakir as such karta and as natural guardian of the minors after their parents death brought them up; that he purported to sell the shares of the plaintiffs also as their guardian, but that there was no legal necessity for the sale. The learned Subordinate Judge, however, dismissed the suit on the ground (1) that the transactions were binding on the plaintiffs till these were set aside by a properly framed suit, and (2) that the present suit was not maintainable as there was no prayer for cancellation of the sale deeds; further, so far as plaintiff 1 was concerned, it was barred by limitation under Art. 44, Limitation Act, he having attained majority in 1930, more than three years before the institution of the present suit on 2 October, 1936.