BAIKUNTHA NATH KAR Vs. ADHAR CHANDRA PAIN

JUDGEMENT

(1.) The suit out of which this appeal by the principal defendants arises was brought by the plaintiff for a declaration that the lands in suit belonged to him and also for an injunction staying sale of the property in execution of a decree obtained by the defendants for money. The plaintiff alleged that the property in suit consisting of about 3 bighas belonged to one Baidya Nath, that Baidya Nath had borrowed Rs. 140 from the plaintiff by signing a hatchitta and that on Baidya Nath's death, plaintiff pressed for payment of the money due to him. The father of the widow of Baidya Nath, who was a minor acting as a de facto guardian of the widow arranged to pay Rs. 40 in cash and also executed a kobala for the disputed lands in favour of the plaintiff in satisfaction of the remaining Rs. 100 of the debt. The plaintiff further stated that he was in possession of the land in suit since the date of his kobala, that the defendants after the death of Baidya Nath instituted a suit for money in the Court of the Munsif of Bishnupur, that in execution of the decree obtained by them in that suit the lands covered by his kobala were attached and that on such attachment the plaintiff filed a claim in the execution case which, the plaintiff alleged, was not registered for reasons not known to him. The plaintiff, therefore, brought the present suit for the reliefs already stated.

(2.) The defendants resisted the plaintiff s, claim and challenged the plaintiff's conveyance as a collusive sale without any consideration. The defendants further alleged that the main object of the transfer was to defraud the creditors of Baidya Nath, that the father of the widow of Baidya Nath was not her legal guardian and that there was no necessity for the sale of the property by the minor widow and, therefore the sale was invalid and that the property as belonging to Baidya Nath was liable to; satisfy the decree obtained by the defendants.

(3.) The learned Munsif raised several issues of which I shall mention only two: Is the plaintiff's kobala valid, genuine; and for consideration? Had minor's father.any legal right to execute the kobala? Is it valid in law?