MON MOHAN BHATTACHARJEE Vs. BIDHU BHUSAN DUTTA

JUDGEMENT

(1.) These are three appeals by some of the defendants in three suits for the declaration of the plaintiffs title to certain plots of land and for ancillary reliefs. The suits were numbered 949, 950 and 951 of 1934 and were tried together by the Munsif, Second Court, Krishnagar, who decreed them in favour of the plain, tiffs. On appeal, the learned Subordinate Judge upheld the decision of the trial Court making certain modifications in the decree passed with respect to Suit No. 949 of 1934. The defendants have now appealed to this Court. The appeals were taken up for hearing together and this judgment shall govern the three appeals. At the outset learned advocate for the appellants stated that he could not press the appeals arising out of suits numbered 949 and 950. They are Second Appeals Nos. 266 and 268 respectively. These appeals are accordingly dismissed with costs in favour of the appearing respondents.

(2.) In Suit No. 951 of 1934 out of which Second Appeal No. 267 arises the plaintiff's case briefly is as follows: There were two cousins Hari Mohan and Hari Nath who had an eight annas share each in certain property which they had inherited from their ancestors. These two cousins separated in mess and property. Hari Mohan died leaving three sons Nut Behari, Pralhad and Dhruba. Nut Behari married Malatimala who is defendant 3. He died leaving two sons Ramani Mohan and Abani Mohan who are defendants 1 and 2 respectively. Pralhad married Satya Kumari, defendant 10, and had two sons Murari and Mani Mohan who are defendants 8 and 9 respectively. Dhruba married Charusila. Dhruba predeceased his brothers leaving Charusila a childless widow. Hari Nath died leaving as his heirs two grandsons Mohini Mohan and Debendra by his daughter as his heirs. They are defendants 6 and 7 respectively. The plaintiff's suit is concerned with the eight annas share of the property which belonged to Hari Mohan. Dhruba inherited a one-third share in this property. On his death his widow Charusila sold this one-third share to defendant 10 Satya Kumari, the wife of Pralhad, for legal necessity. Nut Behari and Pralhad then separated and Nut Behari held his one-third share in the property separately. After Pralhad's death, Satya Kumari and her two sons Murari and Mani Mohan together had a two-third share in the property of Hari Mohan. The plaintiff by three kobalas Bxs. 6, 6-a and 6-b purchased certain plots of land appertaining to this two- third share. This was in Falgoon and Chaitra 1335 B.S. corresponding to Eebru-ary and March 1929, and in Baisakh 1336 B.S. corresponding to April a May, 1929. The kobalas were executed by Murari on his own behalf and by Satya Kumari for self and as guardian of her minor son Mani Mohan (defendant 9). In the kobala Ex. 6 (a) it was recited that the sale was effected to raise funds to meet the current family expenses and to pay off certain debts. In the kobalas Exs. 6 and 6 (b) it is stated that the property was sold to raise money to meet the marriage expenses of Murari, the adult male son of Satya Kumari. After the sale the plaintiff possessed the land peacefully till 1340 B.S. corresponding to 1933 and 1934, when some of the paddy on the land was forcibly reaped by some of the defendants. Defendant 6 then brought a collusive and fraudulent partition suit being Title Suit No. 1 of 1931 and had a compromise decree passed therein declaring that Hari Mohan had a seven annas share in the ancestral property and Hari Nath a nine annas share therein. The plaintiff contended that this was a fraudulent decree and that in any case it was not binding on him. He accordingly sued for a declaration of his title to the property in suit, for confirmation of his possession and for ancillary reliefs.

(3.) Various defences were taken in the trial Court but for the purposes of this appeal the following only need be mentioned. It was contended that Hari Mohan's share was 7 annas and not 8 annas and that this was declared in a decree passed in a partition suit; the sale by Charusila to Satya Kumari was alleged to be invalid as there was no legal necessity for the sale; as regards the sales by defendants 8, 9 and 10 to the plaintiff, the defence was that the sale was void inasmuch as the vendors when they executed the sale deeds were fraudulently induced by the plaintiff into believing that they were executing powers of attorney in favour of the plaintiff. Defendants 4 and 5 claimed to have purchased some of the properties in suit from defendants 8 and 9 in the year 1933 by a kobala Ex. 1 and defendant 6 claimed to have purchased some of the properties in suit in execution of his decree for costs in the Partition Suit No. 1 of 1931. The trial Court held against the defendants on all points. In the lower Appellate Court an additional point was taken. It was contended that the share of defendant 9, Mani Mohan, was not affected by the transfers effected by the kobalas Exs. 6 and 6(b). On the dates of these-kobalas defendant 9 was a minor and his share was transferred by his mother, defendant 10, acting as his guardian in order to meet the marriage expenses of his elder son Murari (defendant 8) who was then a major. The argument is that under the Hindu law the minor's property could not be made liable for such an expenditure and that therefore Mani Mohan's share was unaffected by these transfers. The lower Appellate Court concurred in the finding of the trial Court as regards the defences taken there. With respect to the new point raised the lower Appellate Court makes the following observations: It is true that the eldest son's marriage expenses could not be a legal necessity, but the thing is that the mother really required money for meeting the current expenses of the joint family she was in charge of and so there was legal necessity.