Decided on January 22,1968

Tankeswar Das And Anr. Appellant
Bhagaban Chandra Choudhury And Ors. Respondents

Referred Judgements :-



C. Sanjeeva Row Nayudu, J. - (1.)THESE two second appeals arise out of a suit brought by the first Respondent in these appeals for a declaration of tenancy right and for possession in regard to 2B. 4K. 7 lechas of land on the ground that the Plaintiff Bhagaban Chandra Choudhury had purchased the said land along with other lands on 5-6-67 under a sale, deed executed in his favour by one Mustt. Sabitri Bala Dasya, widow of late Golok Chandra Das and mother of pro forma Defendant No. 8 Tankeswar Das and pro forma Defendant No. 9 Ratneswar Das, who are minors. In the suit pro forma Defendant No. 10 contended that there was no legal necessity for the sale and that no consideration had passed and to a similar effect was the written statement filed by the Court guardian appointed for the minors.
(2.)ON trial the Munsiff's Court at Bar peta decreed the suit in regard to the share of Sabitri Bala Dasya pro forma Defendant No. 10 in the suit properties. He however, dismissed the suit against the share of the minors pro forma Defendants 8 and 9, holding that the sale was in violation of Section 8(3) of the Hindu Minority and Guardianship Act. 1956
The Plaintiff in the suit preferred an appeal against this judgment and decree of the Munsiff and this appeal was numbered as Title Appeal No. 74/61 and this appeal was preferred mainly against the minors who are shown as represented by their natural guardian, the mother Sabitri Bala Dasya pro forma Defendant No. 10. It may be noticed that the main contention in this appeal was that the Court below should five granted a decree not only in regard to the share of the mother pro forma Defendant No. 10, but also in respect of the shares of the two minors -pro forma Defendants 8 and 9.

(3.)THE widow, daughters and two sons of late Balak Chandra Kalita Defendant No. 1 as heirs and legal representatives of Defendant No. 1, and Defendants Nos. 2 and 3, who are also sons of Defendant No. 1, who died during the pendency of the suit, preferred an appeal against the judgment and decree of the Munsiff in the above suit and this appeal was numbered as Title Appeal No. 76/61.
In this appeal they claimed that they were not given an opportunity to produce the original partition deed under which Balak Chandra Kalita, the predecessor -in -interest of the Appellants in Title Appeal No. 76/61 and Golok Chandra Das, husband of pro forma Defendant No. 10 and father of minor pro forma Defendants 8 and 9, had divided their family properties and that if that deed had been allowed to be produced, it would have shown that the suit property fell to the share of Balak Chandra Kalita and not to the share of Golok Chandra Das, so that there could be no decree against them in regard to the suit property.


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