JAMILENNESSA KHATUN Vs. IJJATENNESSA KHATUN

JUDGEMENT

(1.) This is an appeal arising out of a suit instituted by the appellant for a declaration that the decree passed in a suit brought in the year 1912 for partition which was numbered 137 of 1912 and renumbered as 7 of 1920 was a nullity so far as she was concerned. The matter, shortly stated, stands thus : The property of which the partition was sought originally belonged to one Golam Ali Choudhury who died in the year 1295 B.S. corresponding to 1888. He had three wives, Azajannessa Khatun, Ijjatan-nessa Khatun and Jamidannesa Khatun. It is not necessary to state the names of all the parties concerned in this litigation : these will be found in the geneological table given at pp. 152-153 in the paper book of appeal from original decree No. 254 of 1922. The appellant is a descendant of Golam Ali Chowdhury by his first wife. There was a dispute among the members of the family that the second wife Ijjatannessa was not validly married to him under the Mahomedan law, she having been the sister of his first wife and the marriage having taken place during the lifetime of her sister.

(2.) We are not concerned with that dispute at present. The suit of 1912 was brought by a daughter of Golam Ali Chowdhury by his third wife for partition of the estate left by him. The present plaintiff was made defendant 17 in that suit. Proceedings went on for a considerable number of years. This lady, then defendant 17, was a minor at the time of the suit. The whole dispute arises with regard to the fact whether she was a minor at the crucial moment or not. It is alleged that the appellant Jamilennessa Khatun was born on 27 May 1898. On 20th March 1902, her father named Md. Hashein was appointed guardian of her person and property under the Guardians and Wards Act by the District Judge of Faridpur. Md. Hashein died on 13 May 1909. After his death it appears that no other guardian was appointed for that lady. The result, however, of the appointment of guardian under the Guardians and Wards Act was that under the Majority Act, the minority of the lady Jamilennessa Khatun was extended up to 21 years of age. When the suit for partition was brought in 1912 by Majidannessa the daughter of Golam Ali by his third wife, the present plaintiff was admittedly a minor. Her father's mother Karimannessa who was also one of the daughters of Golam Ali by his second wife, the validity of whose marriage was in question, was appointed her guardian ad-litem. Evidently that lady had an interest adverse to that of the minor defendant Jamilennessa Khatun. Having realised that, she informed the Court of the fact and asked to be relieved of her office as guardian ad litem of defendant 17. She was removed and an officer of the Court was appointed guardian-ad-litem. But, as the learned Subordinate Judge observes, within four days of that appointment, one Md. Salem, the father's brother of the infant Jamilennessa, was appointed guardian ad litem. This gentleman also had an interest adverse to that of the minor in the sense that he was interested that his mother should get a share in the property left by Golam Ali in which case the share of the infant would be diminished to a certain extent. Nothing, however, turns upon the fact of his being appointed guardian because on 28 April 1916, Md. Salem filed a petition in the partition suit alleging that-Jamilennessa Khatun had attained her majority in Falgoon preceding and he could no longer continue as guardianad-litem.

(3.) It may be mentioned that this gentleman was also a party defendant to the suit. Apparently, the learned Judge-required a petition from the infant herself who was alleged to have attained majority and a petition is on the record dated 2 June, 1916, filed on behalf of the lady defendant 17 stating that she had attained majority and she desired to continue the suit as sui juris with certain other prayers about giving her time forming written statement and so forth. This petition was also supported by an affidavit by Mr. Salem dated 5 Juno 1916 in which the correct date of the-birth of Jamilennessa Khatun was given as the 14 Jaistha 1305 corresponding to 27 May 1898 and it was alleged that she had completed her 18 year on the 14 Jaistha 1323 which corresponds to-some date preceding the date of the affidavit in the year 1916. The fact that the lady would not attain majority on her completing 18 years of age was lost sight of, and the lady was treated as if she was sui juris. As a matter of fact, under the law Jamilennessa Khatun did not attain majority till the 27 May 1919. It is not necessary to state the various details about the proceedings in the partition suit ; but a preliminary decree was made on 31 July 1916. The question now turns upon the fact that the lady was in the eye of the law an infant and she was not properly represented in the suit by a guardian ad litem duly appointed. It is contended that under the circumstances all the proceedings held from the 28 April 1926 in the partition suit are null and void so far as this defendant is concerned. The allegation of the plaintiff (in the suit out of which this appeal No. 58 of 1924 arises) is that she did not know of the various proceedings that were taken in the partition suit as she was living with her uncle and father's mother whose interests were adverse to hers and she became aware of her legal right only after her marriage in the year 1921 when her husband informed her of the facts, and the suit out of which the present appeal has arisen was brought on 31 March 1922 for a declaration that the proceedings in the previous suit for partition of 1912, taken after the date of the removal of her guardian ad litem are null and void. Various issues were raised in the Court below but the Subordinate Judge really decided the suit upon issues 3 and 4, namely "whether the suit is barred by estoppel and res judicata" (issue 3) and Is the plaintiff estopped from saying that the decree in Title Suit No. 137 of 1912 is not binding against her (Issue 4).