1984 Supreme(Cal) 364

High Court Of Calcutta
SUKUMAR CHAKRAVARTY
KALI CHARAN - Appellant
Versus
SUDHIR CHANDRA - Respondent
S. A.  330  Of  1976
Decided On : 11/16/1984

A transfer of a minor's property by a de facto guardian without legal necessity is void ab initio and does not require to be avoided by the minor within three years after attaining majority.

Headnote:

GUARDIANSHIP - DE FACTO GUARDIAN - TRANSFER OF MINOR'S PROPERTY - LEGAL NECESSITY - VOID AB INITIO - LIMITATION ACT, 1963, ART. 60 - ADVERSE POSSESSION - NO CASE MADE OUT.

Fact of the Case:

Bamanmoni Naskar, the paternal aunt of the defendant No. 1, sold the share of the minor Kalicharan in the suit land without legal necessity by the kobala dated 14-3-1951. The learned Munsif dismissed the suit by holding that the plaintiff did not acquire title to the share of Kalicharan. On appeal, the learned Additional District Judge concurred with the finding of the learned Munsif that Kalicharan while he was a child, was in the care of Patalmoni and not in the care of his paternal aunt Bamanmoni and that Bamanmoni describing herself as guardian of Kalicharan sold the share of Kalicharan in the suit land without legal necessity by the kobala dated 14-3-1951. However, the learned Additional District Judge found that Kalicharan attained majority in 1964 and did not file any suit for setting aside the transfer by the kobala dated 14-3-1951 within three years after attaining majority. According to the learned Additional District Judge, the defendant Kalicharan therefore lost his right to claim over the property because of the limitation. The learned Additional District Judge found also the possession of the plaintiff in the land and accordingly decreed the suit with regard to the plaintiffs prayer for injunction on declaration of his title to the same.

Finding of the Court:

Bamanmoni was not the natural guardian nor was she a guardian appointed by the Court. Both the Courts below have found that Kalicharan was brought up by Patalmoni and was not in the care of Bamanmoni for his maintenance. It is also not the case of the plaintiff that Bamanmoni was the manager of Hindu joint family in respect of the disputed joint property belonging to Abhoy Charan Naskar, Haripada Naskar, Anand Naskar, Kalidas alias Kalicharan Naskar and Bamanmoni Naskar. So in no way it can be held that Bamanmoni was the de facto guardian of Kalicharan both in respect of his person and property. The description of Bamanmoni as 'khurimata' guardian of minor Kalicharan in the impugned kobala dated 14-3-1951 (Ext. 3) is not supported by the facts in evidence. Furthermore, this has to be noted with interest that Bamanmoni did not put her signature or thumb impression. On the kobala dated 14-3-1951 (Ext. 3 ). The mere writing of her name for herself and as mother guardian of minor Kalicharan through the pen of Abhoy Charan Naskar does not prove that Bamanmoni actually executed the said kobala. So here also lies the inherent defect in the kobala which cannot transfer even the share of Bamanmoni, not to speak of the share of the minor. Of course both the Courts below have missed this pertinent and important point.

Issues: 1. Whether Bamanmoni was the natural guardian or a de facto guardian of the minor Kalicharan? 2. Whether the transfer of minor Kalicharan's share in the property by Bamanmoni was void ab initio? 3. Whether the plaintiff acquired title to the share of Kalicharan by adverse possession?

Ratio Decidendi: 1. A de facto guardian of a minor can validly sell the minor's property for legal necessity just like a natural guardian. 2. If an alienation is made either by a manager of a Hindu family or a de facto guardian of the minor's interest in the property but without legal necessity it is not voidable but is void in its inception and that the then Art. 44 of the Limitation Act which now corresponds to Art. 60 of the Limitation Act, 1963 has no application and accordingly the minor's interest in the property sold by such guardian would not be affected at all and that it would not be required for the minor to avoid such sale within three years after attaining majority. 3. The question of adverse possession is a mixed question of fact and law and at this stage in the second appeal this cannot be allowed to be newly taken up.

Final Decision: The second appeal is allowed and the judgment and decree as passed by the learned Additional District Judge are set aside. The judgment and decree of dismissal as passed by the learned Munsif are restored and confirmed. There will be no order as to costs.