1982 Supreme(Cal) 143

High Court Of Calcutta
ANIL KUMAR SEN, B. C. CHAKRABARTI
HARI SATYA BANERJEE - Appellant
Versus
MAHADEV BANERJEE - Respondent
S. A.  973  Of  1978
Decided On : 04/21/1982

A sale by a de facto guardian of a Hindu minor's property when there is no legal necessity for such sale is voidable at the instance of the minor and can be repudiated by the minor on attaining majority.

Headnote:

PARTITION SUIT - SHARE IN SUIT PROPERTIES - LEGAL NECESSITY FOR SALE - GUARDIAN OF MINOR - VOIDABLE SALE - REPUDIATION BY MINOR - RATIFICATION - DE FACTO GUARDIAN - VOID TRANSACTION - ADVERSE POSSESSION - INTERPRETATION OF DEED - CONVEYANCE - RATIFICATION.

Fact of the Case:

Plaintiff filed a suit for partition on declaration of plaintiffs 2/3rd share in the suit properties. Defendant No. 1 and defendants Nos. 3 to 10 were the appellants before the court. The suit properties were 11 plots of land appertaining to 4 khatians set out in the plaint schedule. Of these 11 plots 3 plots have been excluded from the suit concurrently by the two Courts upon a finding that in respect of these 3 plots, the plaintiff had failed to make out any case for partition. The plaintiff's case was that the suit properties along with other properties once belonged to one Ashutosh Banerji and on his death such properties were inherited by 3 sons of Asutosh, namely, Hari satya (defendant No. 1 ). Gadadhar, since deceased, father of Jiban Santi (defendant No. 2) and Mahadev (plaintiff ). The maternal grandmother of Jiban Santi, Jalad Barani Debi instituted Title Suit No. 50 of 1945 on behalf of the minor for partition of the properties inherited by the minor constituting the estate of Asutosh. Such suit was decreed on compromise on June 28, 1946, and all the properties left behind by Ashutosh were partitioned between the parties except the properties set out in Schedule D to the compromise petition (Ext. F) which was left Ejmali between the three co-sharers. According to the plaintiff, the suit properties are the properties incorporated in the said Schedule D of the compromise decree which were left joint between the parties. The plaintiff claims 1/3rd share by inheritance from Asutosh and the other 1/3rd share by two purchases from defendant No. 2. The two Courts below have con-currently found that plots Nos. 4882, 4884 and 4519 were neither covered by Schedule D of the compromise decree nor covered by the two purchases made by the plaintiff from defendant No. 2 and on such a finding those 3 plots have been excluded from file suit.

Finding of the Court:

The court held that the sale dated Sept. 11, 1946 effected by Jalad Barani on behalf of the minor in favour of the plaintiff (Ext. 1) in respect of fltree plots was an invalid transfer as she was neither the natural guardian nor the guardian appointed by the Court in respect of the minor or his properties. The court further held that the necessity for the sale as recited in the document not having been proved aliuude the minor's share in the property could not have been validly transferred at all. It was further found that the said transfer by Jalad Barani on behalf of the minor was a sham transaction as would be evident from the fact that the plaintiff himself purchased the very same 3 plots covered by the said deed dated Dec. 23, 1947 once again from defendant No. 2 in the year I960 (Ext. la) as and when he attained majority, though at that time the said defendant could not have any interest in those plots if the earlier sale on his behalf during his minority had been a genuine one. The court also held that the plaintiff could acquire no interest from the defendant No. 2 by his later purchase dated Jan. 27, 1960 vide Ext. la because on that day the vendor defendant No. 2 had no interest in the disputed plots which he could convey.

Issues: 1. Whether the sale dated Sept. 11, 1946 by Jalad Barani on behalf of the minor was a valid transfer? 2. Whether the necessity for the sale as recited in the document was proved? 3. Whether the transfer by Jalad Barani on behalf of the minor was a sham transaction? 4. Whether the plaintiff could acquire any interest from the defendant No. 2 by his later purchase dated Jan. 27, 1960?

Ratio Decidendi: 1. The court held that the sale dated Sept. 11, 1946 by Jalad Barani on behalf of the minor was an invalid transfer as she was neither the natural guardian nor the guardian appointed by the Court in respect of the minor or his properties. 2. The court held that the necessity for the sale as recited in the document not having been proved aliuude the minor's share in the property could not have been validly transferred at all. 3. The court held that the said transfer by Jalad Barani on behalf of the minor was a sham transaction as would be evident from the fact that the plaintiff himself purchased the very same 3 plots covered by the said deed dated Dec. 23, 1947 once again from defendant No. 2 in the year I960 (Ext. la) as and when he attained majority, though at that time the said defendant could not have any interest in those plots if the earlier sale on his behalf during his minority had been a genuine one. 4. The court held that the plaintiff could acquire no interest from the defendant No. 2 by his later purchase dated Jan. 27, 1960 vide Ext. la because on that day the vendor defendant No. 2 had no interest in the disputed plots which he could convey.

Final Decision: The appeal was partly allowed. The decree passed by the Court of appeal below was modified to the extent that the plaintiff's suit was decreed in part in preliminary form. His 1/3rd share in plots 4945, 4949 and 4950 was declared while it was further declared that the plaintiff has 2/3rd share in the other 5 plots, namely 4885, 4886, 4941, 4766 and 294. Defendant No. 1 was declared to have 2/3rd share in the 3 plots, 4945, 4949 and 4950 and 1/3rd share in plots 4885, 4886, 4941 and 294. It was further declared that the defendant Nos. 3 to 10 have the remaining 1/3rd share in plot 4766 by virtue of their purchase from, defendant No. 1. The parties were directed to effect partition by metes and bounds in their charges as aforesaid in terms of the order of the learned Judge in the trial Court.