NOKHELAL JHA Vs. SRIMATI RAJESHWARI KUMARI

JUDGEMENT

(1.) In this appeal we have first to deal with the question of the court-fee on the plaint and the memorandum of appeal in the lower appellate Court. The suit was for recovery of possession of certain shares in two tauzis "on determination of the plaintiffs title," and the cause of action was stated in para. 17 of the plaint to have arisen on I9 July 1921, "when the kabala was executed by defendants sixth party in favour of defendant third party" as well as when defendant fourth party purchased the share at auction sale, and on 27 June 1928, when defendants sixth party executed the kabala in favour of the plaintiffs, besides Asarh 30, 1335, when the first and second party defendants did not let the plaintiffs take possession of the shares in dispute. Para. 6 of the plaint states that the kabala of 1921 covered the entire properties, and we have it from para. 7 that in that kabala defendant 12, the eldest of the three sons of Singhesar, figured as the guardian of his two younger brothers, the defendants sixth party. In para. 9 of the plaint it is stated that in a certain suit relating to the share of Jamuna, brother of Singhesar, it was held that the transfer of the property of the minors was not legal "so long as it was not done through a natural or certificated guardian." On the plaint itself, therefore, it is clear that the suit of the plaintiffs-appellants was framed as a suit for recovery of possession upon a declaration or "determination" that their title was not affected by the kabala of 1921.

(2.) This was the view taken by the Taxing Officer of this Court; but his jurisdiction being confined to the question of court-fees on the memorandum of the appeal to this Court, the question of the proper court-fees in the lower Courts has come before us. It has been contended on behalf of the appellants that they could claim possession without any declaration as regards the kabala of 1921, and the decision of Piggott, J. in Rup Narain V/s. Bishwa Nath Singh AIR 1922 All 358 is cited in support of the contention. In so far as the learned Judge held that in a suit, where a member of a joint Hindu family seeks to avoid the effect of a private sale of ancestral property executed by other members of the family the plaintiff is not bound to ask for the cancellation of the sale deed, the decision is distinguishable; for in the present case we are dealing with an alienation by a de facto guardian of Hindu minors which under the Hindu law cannot be treatedas void per se: Vemulapallai Seetharamanna V/s. Maganti Appiah AIR 1926 Mad457. Piggott, J., moreover, found that the plaint before him had been so worded that it fell within the purview of Section 7(iv)(c) of the Court-fees Act and held that the plaintiff would have to stamp the plaint accordingly unless permitted by the Court at the hearing of the appeal by the defendant to amend the plaint. The law which is well settled in this Court may be stated in the words of the late Chief Justice who delivered the decision of the Full Bench (Coutts, J. dissenting) in Ram Sumran Prasad V/s. Govind Das AIR 1922 Pat 615: Further, where the plaintiff claims relief to which he is not entitled until some decree or alienation of property which stands in his way has been avoided or until his legal character or title, which has been called in question, has been declared by a decree of the Court, it has generally been held that such a suit comes under Clause (iv)(c) of the section even though the declaration which it is necessary for him to obtain before further relief can be granted has not been in terms asked for in the plaint.

(3.) The plaintiffs in the present case were obviously advised that they were not entitled to relief until the alienation of 1921, which stood in their way was avoided, and they ought, therefore, to have paid court-fees not under Clause (v)(a) but under Clause (iv)(c), Section 7 of the Act. The deficit has already been calculated, and Mr. Mullick for the appellants who undertook to file the deficit in a week if we decided against him on this point will now carry out his undertaking. The plaintiffs who are the appellants before us failed in both the lower Courts. Their title was based on a kabala of June 1928, from the two younger sons of Singhesar, one of the five sons of Jaimangal Singh. The title of the contesting defendants rests ultimately on a sale deed executed in favour of Etwari Mian, defendant third party, on 23 July 1919 (and not on 19 July 1921, as wrongly stated in the plaint) by the adult members of the family of Jaimangal including Jogesh, the eldest son of Singhesar, who acted for himself and as guardian of his two minor brothers (the plaintiffs vendors in 1928). The question was whether the title of these younger brothers had passed under the sale deed of July 1919. The plaintiffs case was that Jaimangal was governed by the Dayabhaga School of law; the contesting defendants on the contrary said that he was subject to the Mitakshara. The trial Court held that it was the Dayabhaga that applied to Jaimangal and his family and there has been no further dispute on this point. The lower Courts have held that the title of the two younger sons of Singhesar was validly conveyed by the kabala of July 1919, though they were minors at the time, for in their view, Jogesh was the de facto guardian of his infant brothers and the sale was for necessities of the joint family binding on them. Mr. Mullick who appears for the appellants has argued that the lower Court has erroneously proceeded as if the sale of July 1919, was a sale by the manager of a joint Mitakshara family. He has also contended that the position is not improved by calling Jogesh, the de facto guardian of his younger brothers in 1919. This latter contention was examined in such cases as Vemulapallai Seetharamanna V/s. Maganti Appiah AIR 1926 Mad 457 already referred to and Tulsidas V/s. Raisingji where it was held that under the Hindu law a de facto guardian of a minor can validly sell the property of the minor to a third person for legal necessity. Under the general law of course a de facto guardian, being a person who assumes guardianship without any authority, has no legal power to sell the minor's property, though he may take upon himself important responsibilities in relation to it. But under the Hindu law, as Knight Bruce, L.J. said in Hunoomanpersaud Panday V/s. Babooee Munraj Koonweree (1854) 6 MIA 393: The right of a bona fide incumbrancer who has taken from a de facto manager a charge on lands created honestly, for the purpose of saving the estate or for the benefit of the estate, is not (provided the circumstances would support the charge had it emanated from a de facto and de jure manager) affected by the want of union of the de facto with de jure title.