Dayamoyee Pal (Smt.) vs Shyamsundar Mondal

Amitava Lala, J.—I have heard Mr. Mitra carefully in respect of the different points which are formulated before this Court now, as the same was not properly identified in the file. The formulated grounds are given as follows:

(1) For that the learned Courts below failed and neglected to consider that it was Dilip (Proforma Defendant No. 2) along who could challenge the legality of the transfer of his share in the joint property made by his defacto guardian and elder brother Nirmal (proforma Defendant No. 4) on his attaining majority.

(2) For that it has been completely ignored and overlooked by the learned Courts below that Dilip (Proforma Defendant No. 2) cannot have any legal right to sell the lands belonging to him to the Plaintiff before having a declaration to the effect that earlier Deed of Transfer of the lands made by his defacto guardian Nirmal (Proforma Defendant No. 4) on his behalf in favour of the Defendant No. 1/Appellant is null and void by a Competent Court of law.

(3) For that the learned Court of Appeal below should have held on proper scrutiny of the evidence of the parties on Record and the respective pleadings that in the absence of a valid partition of the joint properties between Dilip (Proforma Defendant No. 2) and Nirmal (Proforma Defendant No. 4) and in the absence of specific demarcation of the plots, the. Plaintiff (Respondent No. 1) is not entitled to recover the Khas possession of 2 decimals of land acquired by him.

The short fact is that one Baidyanath was the owner of 6 decimals of land. He gifted to his minor son 2 decimals of land. He also gifted 2 decimals of land each to two brothers, Biroja Kanta and Nirmal. Biroja Kanta was seperated from joint mess. Biroja Kanta''s land was specifically demarcated. The land of Nirmal and Dilip being 4 decimals was not demarcated, according to the Appellant. To meet the expenditure of the shardh ceremony of the departed father and for maintenance of Dilip (minor), Nirmal sold 4 decimals of land to one Sri Naba Kumar Mitra on June 25, 1973. Naba Kumar sold the said 4 decimals of land to one Sri Bansidhar Mondal who exchanged the land with Smt. Dayamoyee Pal, the Defendant/Appellant herein on June 4, 1975. In incidental fact to be stated herein that Piroja Kanta gifted his 4 decimals of land to Dilip. After attaining the majority, Dilip sold his 2 decimals of land along/with other 2 decimals of land or Nirmal to Sri Shyam Sundar Mondal and Ors., Plaintiff/Respondents on August 13, 1974. However, the Plaintiffs filed a suit claiming, inter alia, 1 1/4 decimals of land out of the property which has been originally sold by Nirmal by a Deed of Conveyance dated March 21, 1972. The point of such claim is that Nirmal had no authority to sale the property of Dilip who was then minor. The Court of first instance passed an partial decree in favour of the Plaintiffs in respect of the portion held by the minor. The first appellate Court dismissed the appeal, upon concurrently holding in favour of the Plaintiffs/ Respondents.

In the midst of arguments before me, three points were specifically raised as follows:

(a) whether the third party (stranger purchaser) can challenge the earlier sale made by Nirmal on behalf of the Dilip (minor)?

(b) since the property is not demarcated, whether the decree can be executed?

(c) whether a decree can be passed in respect of 2 decimals of land when the claim is made for 1 1/4 decimals of land?

So far the question of transaction by minor is concerned, I do find that till date it is well-settled that father and mother are the natural guardians. Therefore if any transfer is made on behalf of them or on behalf of either of them for any benefit of the minor, such transaction can not be held to be void. But transfer, other than the natural guardians, can be held to be void. If it is void, the same can be void at any stage by the action of any of the parties. Because it leads to a nullity. Although a point was taken that whether the stranger purchaser can take the plea or not, I find that there can not be any embargo because they have inherited the properties by virtue of sale. Therefore, such inheritance can not be seperated from a successor interest available from the heirs and representatives. The simple reason is that one has stepped in the shoes of minor rightly or wrongly. If the wrongness is there which appears to be void and is brought to the notice of the Court by any successor-in-interest, he is entitled to do so and the Court rightly held in their favour. So far the question of executability of the decree is concerned, the commissioner''s report is there. The commissioner has specified the portions for execution of the decree. Therefore, the Court has no embargo in executing such decree. Now, the question is whether any partition was sought for by metes and bounds or not? That is the technical problem in between the parties. But, when the physical demarcation is available which has been reflected from the report of the Pleader/Commissioner, the Court has no other alternative but to proceed on the basis of such report to give the effect of the relief sought for. This has been correctly done. Therefore, neither the Court of first instance nor the Court of appeal committed any error to that extent.

The last but not the least, in respect of the claim is restricted to 1 1/4 decimals of land. The Plaintiffs can not go beyond the same. Therefore, the decree has to be operated if the claim is made for an area within the 2 decimals of land.

Thus, taking into totality of the matter, I am of the view that no relief can be granted in the Second Appeal. Therefore, the same is dismissed. Interim order, if any stands vacated. There will be no order as to costs.

Lower Court record be returned as early as possible preferably within a period by January 16, 2004. The Plaintiffs will be entitled to proceed for execution of the decree as expeditiously as possible. this Court expects that such execution will be disposed of within a period of three months from the date of receiving the order of the Court or receiving the lower Court records, whichever is later.

Urgent xerox certified copy of this order be supplied to the parties within a period of two weeks after X-mas vacation upon putting necessary requisites.