Shyamal Kanta Sinha vs Umed Ali, Sk.

S.K. Chakravarti, J.—This is an appeal at the instance of the Plaintiff. The suit which was instituted as far back as September 19, 1956, has had a long and chequered history. Admittedly, the properties in suit originally belonged to the three brothers, Kamala, Bimala and Shyamala (the Plaintiff). They got the properties as heirs of their father each having one-third interest in the same. When the father died, Bimala and Shyamala were minors and Kamala was an adult. Their mother Nighur Bala Dasi. was the certificated guardian of Kamala and the Plaintiff by virtue of an order passed by the District Judge, Birbhum, on March '' 9, 1933 (Ex. 1). On. January 29, 1947, Kamala (Defendant No. 2), his wife (Defendant No. 3) and Nighur Bala Dasi on behalf of minors, Bimala and Shyamala, granted a permanent lease of the ka schedule lands to the Defendant No. 1 on, getting a selami of Rs. 1,800 and the rent was fixed at Rs. 9-1-6 per annum (Ex. A). On July 26, 1949, Nighur Bala on behalf of the Plaintiff, who was a minor at the time, granted a lease of the kha schedule lands to the Defendant on getting a selami of Rs. 400 and the rent was fixed at Rs. 3 per annum (Ex. Al). The Plaintiff attained majority on January 12, 1954, as would appear from the unchallenged evidence on record and also Ex. 1. On September 19, 1956, the Plaintiff instituted the instant suit alleging therein that the transfers made by his mother during his minority were without the permission of the District Judge and, as such, were not binding on him and prayed for joint possession with the Defendant No. 1 on evicting him from one-third share of ka schedule lands and 1/2 share of kha schedule lands. It is not denied that" the Plaintiff had one-third share in the ka schedule lands and 1/2 share in the kha schedule lands. The suit was contested by the Defendant No. 1 and he alleged that the leases were for the benefit of the minors. The learned Subordinate Judge, however, held that the leases were void having been executed by the certificated guardian without the sanction of the District Judge and decreed that suit. The Defendant No. 1 appealed and the learned additional District Judge held that the leases were not void but merely voidable and that the Plaintiff cannot get his decree until and unless he reimburses the Defendant for the benefit he has acquired under the leases. As the materials before him were not sufficient to enable him to come to any decision on this point, he remanded the case back for a consideration also of the question as to whether the Plaintiff had derived any benefit out of the leases. Thereafter the Plaintiff amended the plaint by striking out the prayer for recovery of joint possession and substituted therefore the prayer for partition. He had also prayed for addition of the Defendants Nos. 2 to 4 and the State of West Bengal as the Defendant No. 5. These prayers were allowed by the Court and the Defendant No. 1 also filed additional written statement, but the added Defendants did not appear. Thereafter the Plaintiff prayed for a further amendment to include a prayer for cancellation of the two deeds of lease. The Defendant No. 1 objected thereto and the learned Judge disallowed- this prayer for amendment holding that to allow it at the time would be infringing Article 91 of the Indian Limitation Act. Thereafter the parties adduced further evidence, and the learned Subordinate Judge, though holding that the leases were voidable transactions, dismissed the suit mainly on the ground that a suit for partition would not be maintainable until and unless the Plaintiff filed a suit to set aside the leases. The Court further held that the suit is bad so far as the State of West Bengal is concerned inasmuch as no notice u/s 80 of the CPC had been served on it. Against this judgment and decree the present appeal has been filed by the Plaintiff.

The Plaintiff''s mother was his duly certificated guardian. In the leases she described herself only, as the natural guardian. Reading Sections 29 and 30 of the Guardians and Wards Act together it is clear that such a lease would be voidable. It appears that much argument was made in the lower Courts to the effect that as the leases were executed by the mother not as certificated guardian but as natural guardian, Sections 29 and 30 of the aforesaid Act would not apply. In our view this is not a correct proposition. If it is held that a certificated guardian can alienate property qua natural guardian that would be a fraud on the statute itself. Vide also Jagdamba Prasad Lalla and Another Vs. Anadi Nath Roy and Others, and Hem Chandra Sarkar v. Lalit Mohan Kar (1912) 16 C.W.N. 715 . We therefore, agree with the Court below that the leases in this particular case are voidable documents.

The next question that arises for determination in this case is as to whether the Plaintiff is bound to file a suit for setting aside the alienations before he can get any relief in the shape of partition. As we have already pointed out, that is the main ground on which the learned Subordinate Judge has dismissed the suit. Mr. Apurba Dhan Mukherjee, the learned Advocate appearing on behalf of the Plaintiff Appellant, has very strenuously contended that that is not correct proposition of law and that it is open to the Plaintiff either to file a suit for cancellation of the documents or to indicate that he does not want to stand by the same in any other way. (Vide Trovelyan as Minors, 5th chap. p. 202). The earliest case appears to be the Eastern Mortgage and Agency Company Ltd. v. Rebati Kumar Ray (1906) 3 C.L.J. 260. In that case the Court was considering as to whether an alienation by an executor or an administrator without leave of the Court, where such leave is necessary u/s 90 of the Probate and Administration Act, was void or voidable and it was held therein that it was merely voidable. It appears -to have been laid down in that decision that it was not necessary for the party affected by such a mortgage to file a suit to set that aside. The next case appears to be Bijoy Gopal Mukherjee v. Krishna Mahishi Debi. There their Lordships of the Privy Council were considering a question as to whether the reversionary are bound to file a suit for setting aside the alienations made by a Hindu widow. Their Lordships held that the alienation by the widow was not absolutely void but was prima facie voidable at the election of the reversionary heir who may affirm it or treat it as a nullity without the intervention of any Court, /there being nothing to set aside or cancel as a condition precedent to his right of action. He shows his election to treat it as a nullity by commencing an action to recover possession. The Guardian and Wards Act itself contains no provision under which, for the purpose of avoiding such a transaction, a suit has to be filed. What is necessary is that the other person affected by such a transaction in contravention of Section 28 or Section 29 of the Act, must show his intention to avoid the impugned transaction. The principles which were laid down in Bijoy Gopal Mukherjee''s case ILR (1907) Cal. 329 have also been extended to cases where the certificated guardian transferred properties without the sanction of the District Judge (Vide Jagadamba Prasad Lalla v. Anadi Nath Roy (Supra), Hem Chandra Sarkar v. Lalit'' Mohan Kar (Supra), Sivanmalai'' Goundun v. Arunachala Goundan A.l.R. 1938 Mad. 822; Lalit Kumar Das Chaudhury v. Nagendra Lal Das A.l.R. 1940 Cal. 589 Thus, both on principles and authorities, we are of opinion that it is not necessary that a suit for setting aside the alienations has to be filed by the persons affected by the transfer of immovable properties by a certificated guardian without the permission or sanction of the District Judge, but that he can show his election to do so even as a Defendant or any other way.

Mr. Lala Hcmanta Kumar, learned Advocate for the Respondent No. 1, contends that this right may be claimed by a party only as a Defendant and not by a Plaintiff in a suit in which he does not specifically pray for cancellation of the impugned instruments. There is nothing in the Guardians and Wards Act to indicate that such a right is only by way of a defence and not as a claim in a suit. Moreover, some of the decisions referred to above were in suits where the Plaintiff challenged the validity of the transfers. In the circumstances, we must overrule this contention of Mr. Lala. In this view of the matter we must hold that the suit for partition was maintainable even though the Plaintiff did-not specifically pray for setting aside the alienations. The plaint in the suit, both in its original and its amended position, would show quite unmistakably that the sheet anchor of the Plaintiff''s case was that the transfers having been made without the sanction of the District Judge, were not legal and valid and were not binding on him. By that he had clearly indicated his intention to avoid the transactions. As a matter of fact, he hide the suit to get relief by avoiding the transactions. The suit for partition could be decreed only if the learned Subordinate Judge held that the aforesaid alienations were not binding on the Plaintiff. In the circumstance''s, it was not necessary for the Plaintiff to specifically pray for the cancellation of the transfers and in the view which the learned Subordinate Judge had taken that the decisions were not binding on the Plaintiff, he could have decreed the suit.

Mr. Mukherjee has further made a grievance of the fact that the learned Judge refused the prayer for amendment of the plaint to enable the Plaintiff to sue for cancellation of the documents. Though, as we have already pointed out, it was not necessary for the Plaintiff to pray for such a relief, still it would have been quite proper for the learned Judge to have allowed the prayer for amendment. The learned Subordinate Judge thought that such'' an amendment would be time-barred. He was entirely in the wrong in thinking so. As we have already pointed out, the suit was filed on the assumption that the transfers were invalid and not binding on the Plaintiff. The relief prayed for at the late stage would necessarily follow from the allegations in the plaint and could have been easily granted and there would have been no bar of limitation. Even if the Plaintiff had not prayed for the same,'' it was within the competence of the Court to pass a decree for cancellation of- documents so far as the Plaintiff''s interest was concerned. It is no doubt true that Courts would as a rule decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation, on the date of the application. But, that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interests of justice (vide L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., . In Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, it has also been laid down that all amendments ought to be allowed which satisfy the two conditions �(a) not working injustice to the other side and (b) of being necessary for the purpose of determining the real questions in controversy between the parties and that amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. Bearing in mind these principles there can be no doubt of the fact that the learned Subordinate Judge was wrong in refusing this amendment which would follow automatically from the main pleading.

Mr. Lala has further contended that the Plaintiff cannot get - a decree in this suit until'' and unless he reimburses the Defendant who had paid good money for the lands. As a matter of fact, as we have already pointed out, the leases would show that the Defendant No. 1 paid the sum of Rs. 1,860 as his selami for the ka schedule lands, and in the one-third share of the Plaintiff it can be presumed, therefore, that his mother realised the sum of Rs. 620 for him. The other deed was executed or* behalf of the Plaintiff alone and would show that the Plaintiff''s mother received a sum of Rs. 400 for the lands. Mr. Lala has, therefore, contended that these sums the Plaintiff must refund to the Defendant No. 1 before he can get a decree. He has further urged that the Defendant has improved the lands and he is also entitled to be reimbursed for the same. It is well settled now that the maxim that he who seeks equity must do equity applicable to a Defendant as well as to a Plaintiff and a party who seeks to avail himself of an equitable defence must stand the test as. well as one who appears as Plaintiff in a case. No person who is entitled to avoid a transaction ought to be allowed to do so in such a manner as to enable him-to recover property which would otherwise be lost to him and at the same time to keep the money for other advantages which he has obtained under it (vide Eastern Mortgage arid Agency Company Ltd. v. Rebati Kumar Ray (Supra). Mr. Mukherjee on behalf of the Appellant concedes this position but contends that there is no evidence to show that the minors have been actually benefited by these amounts. In the plaint there is a recital to the effect that on accepting selami the bandobast has been granted. The Plaintiff himself admits that during his minority his mother was appointed guardian of his person and properties by the Court and that, he is on good terms with his mother. When his mother was being examined on commission the eldest brother was also sitting, by her. That would also show that they were on good terms. The mother does not say that the money was misappropriated. The eldest brother was not examined. The Defendant also in his evidence has stated that the money realised by way of selami went towards the maintenance of the Plaintiff. In the circumstances, that would be a very logical conclusion and when the Defendant has paid the aforesaid sums of money to the Plaintiff''s mother and the Plaintiff has been benefited by that amount, the Plaintiff cannot get a decree before he reimburses the Defendant to that extent. But the fact also remains that the Plaintiff has been kept out of actual khas possession and the Defendant has been in possession since the time of the execution of the leases in question. In law, the Plaintiff was entitled to claim accounts since at least the date of the suit. We think that the interest of equity, and justice would be amply satisfied if we set off the claim for reimbursement due to the Defendant No. 1 against the claim of the Plaintiff for accounts against the Defendant, and both Mr. Mukherjee and Mr. Lala agree to it. There is no evidence that the Defendant had improved the lands.

On behalf of the State it has been contended that as no notice u/s 80 of the CPC has been served on it, the suit was not maintainable against it. That appears to be a fact and, therefore, this appeal must fall against the State.

The result, therefore, is that subject to the above, this appeal succeeds. The judgment and decree passed by the learned Subordinate Judge is set aside and the suit is decreed in the preliminary form. The parties are directed to effect an amicable partition by metes and bounds of ka and kha schedule properties on the basis of the Plaintiff''s one-third share in ka and half share in kha schedule property by the end of April 1971. In case they fail to do so, on the application of either party the Court will appoint a Commissioner who will effect a partition between the parties by metes and bounds and allot to the Plaintiff lands to the extent of his share referred to above. The Commissioner will try to maintain the existing possession as far as practicable and may direct owlet money to be paid by one party to the other. In the circumstances of this case we direct that each party will bear its own costs in this Court as also in the Courts below.

Borooah, J.

I agree.