NAGENDRA NATH GHOSE Vs. MOHINI MOHAN BOSE

JUDGEMENT

(1.) The plaintiff sues for declaration of title to and recovery of khas possession of lands on the following allegations. On 12 November 1919 he purchased the suit lands for a sum of Rs. 400 from the husband and certificated guardian of the minor Sudhanbala with the permission of the District Judge and obtained possession. But in 1922 he was dispossessed by the principal defendants, who claimed to have purchased from the husband of Sudhanbala on 18th July 1919. This latter purchase was without the permission of the District Judge. The defence is that the defendants kabala was only voidable, and that the suit is barred by limitation. The trial Court held that the plaintiff's kabala was genuine, but that the defendants kabala was voidable, and the suit was barred under Art. 91, Lim. Act. On appeal the learned Subordinate Judge did not decide the question of limitation, but he held that at the time of the sale to the plaintiff, the certificated guardian having already sold to the defendant had only a right to avoid the latter sale, and that therefore what the plaintiff purchased was the mere right to sue, which would not be transferable under Section 6, T.P. Act. He further held that, as . the defendants purchase stood and the plaintiff had not offered to reimburse the defendant, the suit was not maintainable. The plaintiff now comes in second appeal.

(2.) It is contended that the learned Judge was in error in holding that the plaintiff had purchased the mere right to sue. The kabala, Ex. 1, in its terms purports to convey the entire property, and not a mere right to avoid the previous sale in favour of the defendant. What the plaintiff got by his purchase was the entire right of the minor at that date, and under Section 30, Guardians and Wards Act, the minor had the right to avoid the sale in favour of the defendant. The trial Court took the view that it was necessary for the plaintiff to set aside the sale in favour of the defendants and such a relief would be barred under Art. 91, Lim. Act. This view is supported by two cases which were decided by this Court, viz., Krishna Dhone Bhattacharjia V/s. Bhagaban Chandra [1916] 34 I.C. 188 and Kanok Dasi V/s. Srihari Goswami [1919] 52 I.C. 269. These cases however did not consider the question whether the plaintiff in such circumstances was entitled to sue for possession on a declaration that the previous sale to the defendant was not binding. This is the relief that the plaintiff in the present suit has asked for in the plaint and that the plaintiff in such circumstances would be entitled to such relief, without being required to have the sale in favour of the defendant set aside, has been held in a number of oases : see the cases of Abdul Rahaman V/s. Sukhdayal Singh [1906] 28 All. 30 Dijendra Mohan Sarma V/s. Manorama Dasi A.I.R. 1922 Cal. 150 and Rajani Kanta Roy v. Manmatha Nath Nandi [1918] 46 I.C. 665. It has even been held that when a guardian sells for the second time that is enough for the repudiation of the prior sale : see the cases of The Eastern Mortgage and Agency Co. Ltd. V/s. Rebati Kumar Roy [1906] 3 C.L.J. 260 Hem Chandra Sarkar V/s. Lalit Mohan Kar [1912] 14 I.C. 515 and also the case of Abdul Rahaman v. Sukhdayal Singh [1906] 28 All. 30. All that Section 30, Guardians and Wards Act, says is that the disposal of immovable property by a guardian in contravention of the previous two sections is voidable at the instance of any other person affected thereby. It was pointed out in the case of Dijendra Mohan Sarma V/s. Manorama Dasi A.I.R. 1922 Cal. 150 that the previous sale must be set aside by a proper proceeding But it does not follow that the plaintiff must seek to have the sale expressly set aside. In these circumstances it seems to me that the plaintiff in the present case is entitled to the relief that he has asked for, namely to recover possession of the property on a declaration that the sale in favour of the defendant, which was without the sanction of the District Judge, is not binding upon him. The article of limitation would be Art 120, Lim. Act, and the suit is within time.

(3.) The only other point is whether the plaintiff is liable to reimburse the defendant on account of the latter's purchase. It has been held in a number of cases that on equitable grounds a purchaser in such a case would be entitled to be reimbursed : see the cases of the Eastern Mortgage and Agency Co. Ltd V/s. Rebati Kumar Roy [1906] 3 C.L.J. 260 Dijendra Mohan Sarma V/s. Manorama Dasi A.I.R. 1922 Cal. 150 and Hem Chandra Sarkar V/s. Lalit Mohan Kar [1912] 14 I.C. 515. The learned Judge in the Court below has pointed out that the plaintiff did not offer to reimburse the defendant. The plaintiff made the case that the defendant's kabala was fraudulent and so he did not offer to reimburse. It has been, found however by both the Courts that the defendants's kabala was genuine and for consideration. The learned Judge mentions in his judgment that a part of the consideration money was paid in the presence of the Sub-Registrar; and he apparently affirms the view of the trial Court that the entire consideration had been paid. He also finds that the plaintiff purchased with knowledge of the prior sale to the defendant. It is contended on the other side that it is now too late for the plaintiff to be allowed to have the suit decreed by giving him an opportunity to reimburse the defendant. But having regard to the circumstances, I think that the plaintiff may be given such a decree on terms. The learned advocate for the plaintiff appellant has pointed out that there is no express finding as to haw much of the consideration money was spent for the benefit of the minor. But having regard to the findings of the Courts and the fact that the plaintiff did not in the Courts below make any offer to reimburse the defendant as to any part of the consideration money, I do not think that it would be proper that the parties should be relegated to another enquiry for the purpose of ascertaining how much of the consideration money was spent for the benefit of the minor Having regard to the circumstances, I take it that the entire consideration money was spent for the benefit of the minor, and I think that the equity of the case will be met by-giving the plaintiff a decree on the following terms: