ABHOY CHURN GHOSE Vs. ATTARMONI DASSEE

JUDGEMENT

(1.) This suit is brought for the possession of premises No. 6, Mussalmanpara. Lane, to which the plaintiff claims to be entitled as nephew and heir to Nobin Chunder Ghose, on the death of his widow Sreemutty Bimola Dassee. She sold the house on the 29 October 1857 to Mutty Lal Mullick from whose hands it has passed into those of the defendant, one of the transfers by which this was brought about having been a Sheriff's sale in execution of a money-decree on 19 August 1880, at which the plaintiff gave all bidders notice of his right to the property on the death of the widow.

(2.) To this, the defendant pleaded in his original written statement that he was in possession and he called on the plaintiff to prove his title, adding a claim to compensation for improvements that he had made to the premises, if it was found that the plaintiff is entitled to them. He subsequently filed a supplementary written statement in which he stated that the plaintiff was an attesting witness to the kabala of 1857, that he was a consenting party to it, and that all the kindred of the husband of Sreemutty Bimola, who were likely to be interested in defeating the transaction, consented to the sale, which was fair and justified by Hindu law.

(3.) The plaintiff proved satisfactorily that he was heir to Nobin Chunder, and the kabala of 1857 proves that his widow Sreemutty Bimola conveyed the property to Mutty Lal Mullick. No mention is made in it of legal necessity. Its execution is attested by the plaintiff and his brother, since deceased. On the basis of this attestation, the defendant attempts to set up a case that the sale by Bimola was binding on the plaintiff, and was in fact the act of the whole family who must be taken to have consented to what was done. To this, the answer in point of law is that, as there is no question of necessity, the only way in which Bimola could have transferred an absolute estate was according to the decision in Nobo Kishore Sharma Roy v. Harinath Sharma Roy 10 C. 1102 by a sale with the consent of the next male heir; and this consent she did not obtain, even if we accept an attestation to deed of sale as equivalent to a consent to the sale. In point of fact, I have no hesitation in holding that the attestation of the deed by the plaintiff had no such effect as it is sought to attribute to it. He may have been of age at the time; but he was in fact a mere boy studying at College, and I cannot suppose that he had any idea of the effect of the deed in question. I quite believe him when he says that it was not till he saw the deed recently that he was in fact aware that he had been an attesting witness. Under these circumstances, I hold that no ground of defence can be made out on the ground of consent.