P L D 1963 Dacca 613 (PLP)

5. The lower appellate Court found that in order to carry out the directions of this Court, it would be necessary to take further evidence and, for that reason, it set aside the judgment and decree of the trial Court and sent the case on remand to that Court with direction to take fresh evidence and dispose of the suit in the light of the observations of this Court. Accord ingly, the Court of the first instance took fresh evidence and after hearing arguments afresh decreed the suit. An appeal against that decree was heard by the Subordinate Judge, 3rd Court Mymensingh. The learned Subordinate Judge dis agreeing with the Trial Court allowed the appeal, set aside the judgment and decree of the trial Court and dismissed the suit, Against that decree of the learned Subordinate Judge dismissing the suit, the plaintiff No. 2 alone has preferred the present appeal to this Court.

6. Admittedly, five persons, namely, Ramesh Dhar, Jogesh Dhar, Ramesh Majumdar, Harendra Mazumdar and Akshoy Majumdar were the sixteen annas landlords. Of them, Ramesh Dhar and Jogesh Dhar had eight annas share and the remaining three landlords had the remaining eight annas. Ramesh Dhar and Jogesh Dhar purchased the shares of Ramesh and Harendra Majumdar on the 26th Bhadra, 1324 B. S. (Sep tember, 1917) vide kabala Exh. 1 (a). It appears that one Rajendra Nandi auction‑purchased the share of Akshoy Majumdar on the 26th October 1914, in a Court sale, vide sale certificate Exh. 5 (a) and took delivery of possession thereof on the 25th December 1914 vide Exh. 4 (a). The contention of the defendant No. 1 (respondent No. 1) is that the interest of Rajendra Nandi remained un-represented in the connected rent suit and the execution case and, for that reason, the decree and the sale had not the effect of a rent decree and rent sale. In order to meet this contention, a kabala Exh. 1, dated the 11th April 1927 was exhibited in this case. This kabala executed by Upendra Chandra Nandi, brother of Rajendra Chandra Nandi purported to have transferred to Ramesh Dhar the landlord's interest of Akshoy which had been auction purchased by Rajendra Nandi. This kabala, though executed by Upendra alone, was purported to be one also on behalf of the three minor sons of Rajndra Nandi. It recites that that Rajendra and Upendra were two brothers and members of allindu Joint Family and that the auction‑purchase of the landlords' interest by Rajendra was for the benefit of both the brothers. It further recites that the widow of Rajendra Nandi was of unsound mind and that the sale of the said interest as per kabala Exh. 1 was for legal necessity and for the benefit of the minor sons of Rajendra. It appears from the evidence of Satish Chandra Dhar P. W. 3 that Upendra Nandi is alive and is now in India. He was not examined in this case. Therefore, the statements of Upendra Nandi in the kabala Exh. 1 cannot be used in evidence as against the third party, namely, the defen dant respondent. However, relying on the evidence of P. Ws. 3 and 4 who were examined subsequent to the order of remand by this Court, the Trial Court held that Rajendra and Upendra were brothers and members of a Hindu joint family and that the purchase by Rajendra of Akshoy's landlord's interest was also for the benefit of Upendra. The trial Court further accepted that the widow of Rajendra was insane and that Upendra as guardian of the minor sons of Rajendra executed the kabala Exh. 1 for legal necessity. Thus, the trial Court was of the opinion that valid title passed under the said kabala with the result that the entire landlords' interest ultimately vested in Ramesh Dhar and Jogesh Dhar who obtained the connected decree for rent and auction‑purchased the holding in execution of that decree. On such view of the matter, the trial Court held the decree to be a rent decree and the sale there under a rent sale. Besides, the trial Court held that the landlords got possession of the lands of the holding after their auction‑purchase and the defendants became trespassers.

7. The learned Subordinate Judge did not consider the points with regard to the alleged joint family, the insanity of Rajendra's widow, Upendra's acting as guardian of the minor sons of Rajendra, the sale of minors' interest by Upendra, for legal necessity and the landlords' getting possession of the lands of the holding. He, however, set aside the decree of the trial Court and dismissed the suit mainly on the ground that the kabala, Exh. 1 executed by Upendra Nandi was not duly executed also on behalf of the three minor sons of Rajendra with the result that the interest of the said three minors did not pass under that kabala. Consequently, the decree obtained for arrear of rent, in the opinion of the learned Subordinate Judge, was a money decree as the entire body of landlords were not parties to the connected rent suit. He further found that the defendants purchase of a portion of the holding having been made long before the rent suit and the defendants not having been made parties to the rent suit, their interest remained un -effected by the decree obtained in that suit and the sale held in execution of that decree. Although the learned Subordinate Judge did not discuss certain questions of facts considered by the trial Court and give his views thereon, there are materials on record on the basis of which those questions may be decided by this Court in accordance with the provisions of section 103 of the Code of Civil Procedure The trial Court as already said, held that Rajendra and Upendra were brothers and members of a Hindu Joint family and, as such, Upendra got an interest in the property auction‑purchased by Rajendra as per Exh. 5 (a). Having regard to the evidence of P. Ws. 3 and 4 who are relations of the landlords' group, I think the above finding of the trial Court is correct. But the evidence with regard to the alleged unsoundness of mind of the widow of Rajendra Nandi is meagre and unsatisfactory. P. W. 3 said that the widow of Rajendra Nandi was of unsound mind. Similar is the evidence of P. W.

4. If a person is of unsound mind, it does not necessarily follow that such person is insane. At any rate, there is no evidence as to the precise time when Rajendra's widow became unsound mind. It is no where stated if she was of unsound mind at the time when the kabala Exh. 1 was executed on 11‑4‑1927. No applica tion for adjudging her as an insane was ever filed under the provisions of Lunacy Act. Therefore, it cannot be definitely said that the widow of Rajendra was insane at the time of the execu tion of the kabala Exh.

1. In Hindu Law next to the father, mother is the natural guardian of her sons. Thus the widow of Rajendra Nandi was the natural guardian of the minor sons of Rajendra when the kabala Exh. I was executed. Accord ing to the evidence of P. W. 3, the widow of Rajendra and her sons are alive. These sons attained majority long ago. None of them was examined to ascertain the mental condition of their mother. The bare statement of P. Ws. 3 and 4 that the widow of Rajendra Nandi was of unsound mind are not sufficient to establish that the widow was, in fact insane, or of an sound mind at the time of the execution of the kabala Exh. 1 on the 11th April 1927. There is no satisfactory evidence to show that Upendra intermeddled with the properties left by Rajendra on behalf of his minor sons. I cannot, therefore, accept the finding of the trial Court that the widow of Rajendra was insane at the material time and that Upendra Nandi acted as the guardian of the minor sons of Rajendra. Consequently, Upendra had no authority to sell the landlords' interest of the three minor sons of Rajendra. Thus the kabala Exh. 1 did not convey the interest of those three minors. There is yet another reason for which the interest of the said three minors did not pass under that kabala. It appears from the Exh. 1 that the kabala was executed by Upendra Nandi only in his personal capacity and not for and on behalf of those minors. When the said kabala was executed by Upendra Nandi in his personal capacity and only for himself and not in his capacity as the alleged de facto guardian of the three. minors there is no valid execution of the kabala on behalf of the minors and, as such, the kabala could not convey the minors' interest. It appears from the endorsement on the back of the said kabala that Upendra admitted execution before the Sub‑Registrar only on his own behalf and not on behalf n of these three minors. This also illustrates that the execu tion of the kabala by Upendra was only on his own behalf. In a similar case namely, the case of Banku Behari Mondal v. BankuBehari Hazra (47 G W N 20), it was held by a Division Bench of the Calcutta High Court in 1943 that a deed of sale purporting to be by minors, represented by a guardian, but not signed by the guardian either in such capacity or as representing the minors must operate as a document executed by the guardian in his individual capacity, and minors' interest shall remain unaffected by such deed of sale. The view taken in this case finds support from the case cited above. Thus interest of the three minors not having passed under the kabala Exh. 1, the entire body of landlords were not parties to the connected rent suit and the execution case with the result that the decree was a money decree and the sale held there under was a money sale in effect. The defendants predecessors purchased 1.11 acres of land out of the holding concerned on the 4th of Falgoon 1326 B. S. by a registered kabala Exh. A. The defen dants appear to be un-recognised purchasers of that land. As how ever, the sale in question was a money sale in effect and as the defendants were left out of the suit and the execution case as un-recognised purchasers, their interest in the land covered by their kabala Exh. A remained unaffected by the money sale.

8. As regards possession, the finding of the trial Court is that the landlords got possession of the lands, of the holding after their auction‑purchase and that with the landlords' get ting such possession the defendants became trespassers. On this point too, the learned Subordinate Judge as already said, did not arrive at any finding. The finding of the trial Court on this point is unsatisfactory. The trial Court surmised and presumed certain things but did not, on the basis of evidence, come to a definite finding with regard to special limita tion raised in issue No. 9 which it framed in the following words:‑ "Whether the landlords decree holders and auction‑purchasers possessed the land for 2 years after the delivery of possession taken on 4‑5‑45." What the trial Court found on the said issue was as follows: "Now it appears from copy of service return of delivery of possession Exh. 4 that after auction purchase the landlord auction purchasers obtained due delivery of possession in the entire land purchased including present suit land. This means that there was break in the continuity of possession of suit land by the defendants, if any, and any possession by the defen dants after delivery of possession through Court in favour of the O. P. landlords is of no avail against the landlords and the presumption should be that the landlords were in possession of entire auction‑purchased land. I must find under these facts and circumstances that the landlords auction‑purchasers actually got possession in entire land including suit land on 4‑5‑45 . . . . . ". After referring to the oral evidence with regard to possession, the trial Court further observed:‑ "Considering all these I find that presumably after delivers of possession to the Dhars through Court they were in pos session of suit land and the defendants having no title over the suit lands were mere trespassers even if they again possessed the suit land."

9. It is manifest that the trial Court presumed that the defendants became trespassers in view of the landlords taking delivery of possession of the lands of the holding through Court. It was not, however, realised that the defendants not being parties to the Rent Execution Case, any delivery of possession taken by the landlords had no legal effect on the pos session of the defendants. It appears from the writ of delivery of possession Exh. 4 that the possession, though delivered under Order XXI, rule 95 C. P. Code, was, in fact, symbolical. It is the case of the defendants that they have been in posses sion of the suit land since their purchase in 1326 B. S. Defendant No. 1 as D. W. 1 deposed to that effect. It is the case of the plaintiffs, that after obtaining the lease of the suit land froth the landlords by the kabuliyat Exh. 3, they went to take possession thereof but the defendants resisted and thereby kept them out of possession. Similar is the evidence of the plaintiff No. 1 who deposed as P. W.

1. These leave no room for doubt that the landlords and, for that matter, the plaintiffs could not get actual possession of the suit land and that the defendants are still in possession of the land as before. When the defendant's interest in the land has remained unaffected and when the defendants are still in possession of the same, the plaintiff No. 2, the appellant is entitled to no relief. In the result, the appeal fails and is dismissed. In the circumstances of the case, the parties are directed to bear their respective costs of this appeal. S. B. Appeal dismissed.