TARINI KUMAR DUTTA Vs. SRISH CHANDRA DAS

JUDGEMENT

(1.) This appeal arises out of a suit for specific performance of a contact for sale of certain immovable property belonging to a minor, the defendant No. 1 in the suit. The contract was entered into by his guardian one Ratikanta Saha who is the natural father of the minor defendant. The minor was given in adoption by his father and, therefore, under the law he has no further connexion with the minor after the adoption. He was, however, appointed guardian, under the Guardians and Wards Act, of the properties of the minor. The Defendants Nos. 2 to 6 had subsequently purchased the property with the sanction of the District Judge in the name of Defendant No. 7. There was some question in the Court below as to whether Defendant No. 7 was the benamidar for Defendants Nos. 2 to 6. It has been so found by the Subordinate Judge and that finding has not been questioned before us. The Subordinate Judge made a decree in favour of the plaintiff varying to some extent the contrast upon which the plaintiff sued. Very little depends upon the oral evidence in this case, as, in our opinion, it will ha decided mainly upon the documentary evidence which has been produced by the parties.

(2.) The guardian entered into the contract on behalf of his ward on the 13 July 1920. After reciting the necessity for sale it is stipulated in the contract that 9 jamas belonging to the minor specified in detail would be sold, on 8 of which, it was stated, there were brick-built factory houses. It was stated that the plaintiff was desirous of purchasing the property at the highest price of Rs. 16,500 and the document concludes thus: "I do, in receiving to-day Rs. 500 as earnest-money out of the aforesaid price, execute this deed of agreement and do hereby promise that I shall obtain permission of sale from the District Judge of Nadia and shall after executing and getting the document registered within two months of this day receive from you the balance of Rs. 16,000 out of the consideration money. If for any special reason the District Judge does not grant permission, then I shall return the amount taken as earnest- money. To this effect I execute this agreement of sale on receipt of Rs. 500 mentioned in the deed of agreement." On the 28 July 1920 the guardian filed a position before the District Judge in which he stated that the minor had certain debts amounting to about Rs. 7,000 which it was necessary to pay. It was stated in the petition that the minor has got five old dilapidated houses used as sugar-factories at Kotchandpur and it was also mentioned that if these houses were sold then their price might come up to Rs. 16,500; that Srish Chandra Das was ready be purchase these properties at the said price of Rs. 16,500; and it was also mentioned that the guardian had taken Rs. 503 as earnest-money from the said Srish Chandra Das on the promise of selling the property to him after obtaining permission from the Court. On that application the District Judge asked for a report from the sheristadar who made a report which concludes thus: " His this guardian s) prayer may be granted on condition he files proof of transaction and produces proof to the satisfaction of the Court that the balance has been profitably invested:" Then on the 31 July 1920 one Garabini Dassi appeared before the Court and prayed for time to file her written statement. This lady is the mother of the deceased adoptive father of the minor. Her petition was filed on the 7 August 1920 which came up for hearing on the 21 August next. The material part of the order with regard to this matter on the 21 August is this: " Pleaders for the guardian and the objector heard. The petitioner's pleader stated that the intending purchaser is willing to purchase the property subject to the charge of maintenance. The intending purchaser to apply in Court to the effect that he is willing to purchase the property subject to the maintenance charge of Garabini Dassi to the property." The intending purchaser is evidently the plaintiff.

(3.) It is apparent that the contracts executed by the guardian in favour of the plaintiff was not placed before the District Judge. The petition which, was Bled by the guardian did not state the jamas which he had contracted to sell, nor did he state that on each of the eight jamas there were brick-built factory houses.