RAM CHANDRA PANDA Vs. RAM KRISHNA MAHAPATRA

JUDGEMENT

(1.) The plaintiff in this case is a minor, and he is the appellant. It appears that since this appeal was filed and quite recently the next friend of the minor has died, and an application has been made to us to appoint another person as his next friend to enable him to carry on the appeal and the suit. We make the order accordingly.

(2.) The facts of this case are stated in the earlier portion of the judgment of the Subordinate Judge, and I do not think it necessary, for the purposes of our present decision, to repeat what is stated there. The real question that we have to decide is whether the present plaintiff can successfully maintain the suit, the object of which is to have it declared that the alienation of a certain portion of the property, which he says is debutter property, is a bad alienation and ought to be set aside and possession of the property given to him. That shortly is the object of the suit, and the Munsiff gave a decree in favour of the plaintiff, which has been reversed on appeal by the Subordinate Judge, on the ground that the plaintiff is not competent to maintain the suit. That view we do not share. The first question is whether the property is debutter property or not. It is perhaps a little difficult, from the language of the Subordinate Judge, quite to appreciate whether he means to hold that it was debutter or not debutter. However, we entertain no doubt, concurring in the view of the Munsiff, that the property is debutter property. We think that is clear. We think it is equally clear that the alienation which was made by the father and the uncle of the present plaintiff of a portion of the debutter property was not binding as against the debutter estate. ought to have stated that the respondent on the present appeal is defendant No. 1, who is the purchaser of the property under the mortgage decree, which is referred to in the history of the case given by the Subordinate Judge.

(3.) Now the real question is whether the plaintiff can maintain the present action. He says he can, upon the short ground that the family being governed by the Miiakshara law, when he was born, he became at once entitled to a share, not only in the family property, but also jointly as selait of the debutter property. That view is disputed by the respondents. We think, however, it is correct as was held in the case of Ukoor Doss V/s. Chunder Sekhur Doss (1865) 3 W.R. Civ. Rul. 152 decided by this Court 40 years ago. The case also of Gnanasambanda Pandora Sannadhi V/s. Velu Pandaram (1899) I.L.R. 23 Mad. 271 : L.R. 27 I.A. 69. indicates that the same rule applies to an hereditary office as does to the family property. No authority has been cited to us to show that, in a case such as the present, the plaintiff is not entitled, seeing that the case is governed by the Mitakshara law, to maintain the suit. I think he is, and it being found that the property was debutter and the alienation was not for the benefit of the idol, but for the benefit of the father, we think the decree of the first Court must prevail. The decree of the Lower Appellate Court will accordingly be set aside, and that of the Court of first instance restored with costs of this Court and of the Lower Appellate Court, Mookerjee, J.