CHANDRA KANTA PATHAK Vs. BHAGJUR BEPARI

JUDGEMENT

(1.) The facts of the case out of which this second appeal arises are of great importance and must be set out clearly in order to clear the ground for a consideration of the law points which arise. One Anathi was the owner of a piece of land in Barpeta Bazar with a tin roofed house on it which has been always used as a shop. He died leaving a widow named Pechi and a minor son and daughter. On the 4 of July 1887, Pechi executed a deed purporting to be a will, in which for herself and her minor children she set out that she was unable to support them and, therefore, made over the property consisting of this land and shop to her husband's friend Dukhu Sutar, who was to support her and the children out of the profits of the property until the son came of age when he was to get what remained of it; if both son and daughter died, Dukhu was to become owner of the property. The widow appears to have been on her deathbed when she made this disposition and we find that Dukhu was allowed to prove the will and to take out letters of administration with a copy of the will annexed on the 10 December 1888, The son also died before attaining majority. The daughter is still alive. One Chinti Pathak had all along been the tenant of the shop and land and had paid the rent regularly to Anathi and subsequently to Dakhu. In 1899 Dakhu sold the property to plaintiff as his own. Chinti appears to have died in 1900 and it is clear from the fact that the defendant No. 2, Chandra Kanta Pathak's name was entered in the pattah and that the plaintiff was unable to get him out of the premises, that he must have entered them in succession to his uncle. He, however, proceeded almost immediately to try and make his title good by taking a deed of sale from Anathi's daughter's husband, who of course had no title whatever in February-March 1900.

(2.) The plaintiff, as bona fide purchaser from Dukhu, now sues to eject the defendant No. 2 from the promises and the question arises in this appeal is whether ho is in law entitled to do so. It is freely admitted that the defendant has no title whatever but it is urged that plaintiff having no title either cannot eject him. The learned Judge in the Court below held that the Munsiff was wrong in finding that Dukhu's transactions under the Letters of Administration could not be questioned and he further held that Dukhu's vendee could not plead adverse possession in Dukhu and he decided in plaintiff's favour on the somewhat curious ground that Dukhu on the failure of heirs to Anathi was entitled to recoup himself for monies expended for the benefit of Anathi's family by selling the property. We are clearly of opinion that this position is untenable. There is nothing to show that Dukhu was out of pocket by his trusteeship and if he was he could only recoup himself by having an account taken and getting himself relieved of his appointment as trustee before the District Judge with an order for re- imbursement of what might be found due to him out of the estate. The appellant puts forward several contentions.

(3.) First, that there cannot be adverse possession in an administrator as true heir may turn up at any time and if there is none, the administrator holds as trustee for Government in escheat. Secondly, that as a fact there was not twelve years possession in Dukhu as his possession must count from the 10 December 1888 when he took letters of administration. Thirdly, that a Hindu mother cannot appoint a guardian for her son by testamentary disposition. Fourthly, the power of the trustee is confined within the limits of the document. If he accepts the trust, he excepts it with all its incidents. Fifthly, the right of even a trespasser to plead jus tertii is strongly insisted on.