P L D 1954 Dacca 104 (PLP)

BADIUZZAMAN, J.‑

This appeal arises out of a suit for recovery of khas possession of the land described in the Schedule I to the plaint after declaration of the plaintiffs' title thereto. Facts relevant for the purpose of this appeal may briefly be pat thus : The disputed land appertains to a Dar Htman which I had originally belonged to Akima Bibi, Nur Jahan and Nizamat Ali who subsequently by a registered Kabala, dated 1st May, 1916, transferred the same to the plaintiffs' father Sultan and grandfather Alimuddin Choudhury. This was followed by a partition and as a result thereof the disputed land fell to the share of Sultan on whose death his heirs including his father Alimuddin by a registered wakfnama, dated the 18th September 1919, dedicated the property to charitable purposes. The wakfnama provided that the Mutwalliship would first go to Alimuddin, then to Buzrujmeber and to the plaintiffs. When the plaintiffs' turn came they were all minor and their estate used to be managed by their mother Asia Khatun and a distant relation named Izzat Ali. On attaining majority in 1935 they took over charge of the estate. During their minority Izzat Ali gave away the disputed land of Schedule I to defendant No. 1 in exchange of his land of Schedule No. 2 to the plaint. Defendant No. 1 on the strength of exchange possessed the Schedule I land while Izzat Ali possessed the land of Schedule 2 on behalf of the Wakf estate. The Schedule 1 land is by far superior to the second Schedule land in quality. Yet Izzat Ali acceded to the dishonest proposal of exchange of defendant No. 1, his bosom friend at the cost of the Wakf Estate. The exchange not being enforceable under law, the plaintiffs asked the defendant No. 1 in Baisakh, 1351 B.S., to give up possession of the land in their favour but this demand not having been complied with, the present action was brought. Only defendant No. 1 contested the suit. He denied the plaintiff's allegations of title, possession and exchange, pleaded limitation and further averred that the disputed land appertained to three distinct raiyati holdings standing in the name of Zulfurannessa, Fazar Ali and Mirza Ali, that the defendant No. 1 obtained the share of Zulfurannessa and Mirza Ali by purchase and that of Fazar Ali by an oral gift, and that the entry in the record of rights as to defendant No. 1, possession in Schedule 1 land under exchange was erroneous. The Munsif after a review of the materials furnished by the parties found that the disputed land appertained to the Dar Etman purchased by Sultan and Alimuddin from Nizamat Ali and 2 others, that defendant No. 1 had obtained possession of the property from Izzat Ali by virtue of the exchange referred to in the plaint, and that the raiyatis of Zulfurannessa, Fazar Ali and Mirza Ali had lost their existence long before the R. S. operation. On these findings he decreed the suit. On appeal the learned Subordinate judge affirmed the Munsif's findings on all material points. Then follows the present appeal, the appellant being the defendant No 1 Three points have been urged, the first being that the learned Subordinate judge ought to have held that the plaintiffs miserably failed to prove the story of Ewaj set up by him, the second being that the learned judge erred in law in not holding that the suit was not barred by limitation, and the third being that no notice of the suit having been given to the Wakf Commissioner as required by section 70 of the Bengal Wakf Act, the learned judge acted illegally in not dismissing the suit. The first: two points being inter connected, I propose to take them up together but before entering into discussion I feel. I should incidentally observe, that the appellant from the very inception was conscious of the inherent weakness of the theory of exchange and this awareness found its expression in his obduracy to stick to the theory of raiyati right in utter disregard of the theory of exchange. He made frantic efforts in both the Courts below to establish not only the existence of the raiyatis but also his title thereto, but verdict of the Courts went against him. Here too there was an attempt to reopen the matter but the question involved being a question of fact, the Court refused to go into it. If the theory of raiyati goes, the defendant's possession cannot be explained except by adopting the theory of exchange offered by the plaintiff. That the Dar Btman had originally belonged to Akima Bibi, Nur. Jahan, and Nizamat Ali is not disputed in this case. It is also undisputed that the original Dar Etmandars by a registered Kabala transferred the Dar Etman to the plaintiff's' father Sultan and grandfather Alimuddin Choudhury in 1916. It is also undisputed that on Sultan's death his heirs including Alimuddin by a registered deed dedicated the disputed property to charitable purposes. The plaintiffs were minor when the Mutwalliship devolved on them and during their minority one Izzat Ali as self constituted guardian of the minors gave away the disputed land to defendant No. 1 in exchange of the land of Schedule

2. The exchange was recorded in the R. S. Khatian. Yet the appellant had the hardihood to deny all knowledge of it. But both the Courts could see through the game and concurrently found that exchange had been effected in 1924 and ever since the appellant had been in possession of the disputed property on the strength thereof. This too I am not competent to touch, being a finding upon a question of fact. The Courts below did not confine their decision to the question of exchange only but also gave their verdict regarding the effect of such exchange, the verdict given being that the exchange was void. This finding has been taken exception to by the learned Advocate for the appellant whose contention is that the transfer having been made by Izzat Ali as guardian, it ought to have been held as valid transfer. The argument appears to have been advanced under erroneous conception of Muhammadan Law. Under the Muhammadan Law the only relations who are legal guardians of the property of a minor are, (1) the father, and (2) the father's father. No other relation is entitled to the guardianship of the property of a minor as of right, not even the mother, brother or uncle. But the father or the paternal grandfather of the minor may appoint the mother, brother, uncle or any other person as his executor or executrix, in which case they become legal guardian and have all the powers of a legal guardian as defined in section 362 and 366 of Mulla's Muhammadan Law (Thirteenth Edition). The Court also may appoint any one of them as guardian of the property of the minor. in which case they will have all the powers of a guardian appointed by the Court, as given in sections 363 and 367 of the same volume. The only persons who are entitled to appoint a guardian of the' property of a minor by Will are his father and father's father. Even the mother has no power to appoint by Will a guardian of the property of her minor children. A mother's executor is not a legal guardian, nor is a brother's executor, nor an uncle's executor. In fact, no executor can be a legal guardian of the property of the In default of legal guardians mentioned above the duty of appointing a guardian for the protection and preservation of the minor's property falls on the judge as representing the Sovereign person may neither be a legal guardian nor a guardian appointed by the Court; but may have voluntarily placed himself in charge of the person and property of a minor as in the present case. Such g a person is called de facto guardian. A de facto guardian is merely a custodian of the person of the minor. Here in the present case Izzat All being self‑constituted guardian of a minor comes within the category of de facto guardian. In the case of Imambandhi v. Mutsaddi (1) it has been laid down that a transfer by a de facto guardian is wholly void. If the alience is let into possession of the property, bi! possession, so far as regards the minor's share, is no better than of a trespasser. Here in the present case the alienation not having been made by a legal guardian, the Courts below rightly held that the alienation was void. Next comes the second point; namely, the question of limitation. The learned Advocate for the appellant contends that the present case must come either under Article 44 or under Article 134-B, of the Limitation Act while the learned Advocate for the respondent contends that the case is attracted by Article 144 of the Limitation Act. The same argument were advanced in the Court of appeal below and the learned Subordinate judge found that the case was attracted by Article 144 and not by any of the Articles relied on by the appellant. Article 44 lays down that a suit by a ward who has attained majority to set aside a transfer of property by his guardian should be made within 3 years from the date when the ward attains majority. The use of the term "Ward" in this Article is peculiar and there seems no reason why the word minor should not have been used. But the learned Advocate for the appellant contends that the term " Ward" should not be interpreted to mean only a minor to whom guardian has been appoin ted or declared by the Court under the Guardians and Wards Act e but should also be interpreted to mean ward in the custody of a natural guardian. I confess I am unable to subscribe to this view. If the Article was intended to apply to a minor other than the minor to whom guardian has been appointed or declared by the Court under, the Guardians and Wards Act the legislature would have used the word "minor" and not "ward". The term "ward" seems to have been introduced to link up the Article with the Guardians and Wards Act. If the legislature intended to apply the Article to transfer made by all classes of guardians including natural guardians they would have chosen the term "minor" and not "ward". For the reasons stated above I am of opinion that the learned Subordinate judge rightly held that the present case was not attracted by Article

44. Next comes Article 134B. This Article lays down that a suit by the manager of a Hindu, Muhammadan or Buddhist religious or charitable endowment to recover possession of immovable property comprised in the endowment which has been transferred by a previous manager for a valuable consideration should be brought within 12 years from the death, resignation or removal of the transferor. The term "manager" referred to in the Article should be interpreted to mean manager appointed either by a Court or by a body constituted under the deed of endowment with power to make such appointment. But Izzat Ali does not come within any of those categories. Article 134B, therefore, has no scope here. Let me now turn to the Article relied on by the learned Advocate for the respondent, namely, Article 144 of the Limitation Act. Article 144 provides that a suit for possession of immovable property or any interest therein not hereby or otherwise specifically provided for should be brought within, 12 years when the possession of the defendant becomes adverse possession and is to be applied only when there is no other Article in Schedules specially providing for the case. The present suit is a suit for recovery of possession on the allegation that as soon as the plaintiffs came to know of the defendant's possession of the Wakf property under an unauthorised exchange effected during the management of the property by Izzat Ali, they by a notice issued in Baisakh, 1351 B.S., asked the defendant to vacate the land and that the demand not having been complied with, the present action was brought. As the pleadings stand, the case cannot be brought within the category of any other Article excepting the residuary Article

144. On slightly different facts the same view was taken in the case of Matadin v. Sk. Ahmed (I L R 34 All. 213 (P C).). In that case there was an alienation by a person who was not a guardian and' who had no authority to act as guardian. On this simple fact it was held that the alienation was void and as such not required to be set aside. It was further held that a suit by the minor on attainment of majority to recover possession would be governed by Article 144 and not by Article

44. The most remarkable feature of this case is that in dealing with the question of limitation none of the Courts below took into consideration the effect of section 6 read with section 8 of the Limitation Act. Here before me also no such point was canvassed on the first day of hearing but an argument on the point was invited by me and in fact heard. The exchange took place in 1924 and the plaintiffs attained majority in 1935. Prima facie, the right to sue for possession accrued to the plaintiff's during their minority and they attained majority about 11 years after such accrual. Though the case comes within Article 144, still the question of applicability of sections 6 and 8 would arise. The effect of section 6 is that a person under disability may sue after the cessation of the disability within the same period as 'he would otherwise have been allowed under the Schedule; and section 8 adds a proviso that in no case the period be extended to anything beyond three years from the cessation of the disability. On behalf of the plaintiff respondents it is contended that the suit having been brought within three years from the date when the defendant asserted adverse possession by refusing to vacate the land, it could not be said to be bit by section 6 read with section 8 or by Article 144 In support of his contention the learned Advocate for the appellant. relied on the case of Upendra Nath Roy v. Jitendra Nath Kundu Choudhury (I L R 62 Cal. 921.) wherein it has been held that starting of limitation under Article 144 of the Limitation Act is the date when the possession becomes adverse. The learned Advocate for the appellant relies on the decision in the case of Vasudeva Pudhi v Maguni (28 1 A 81.). Facts of the case are : In 1891 the respondent brought a suit against the appellant, his brother for possession of two villages on partition and for mesne profits from the date of dis possession in 1888. The appellant denied joint possession up to 1888. He claimed sole title under a grant to his father and further alleged that during his minority the plaintiff concealed from him the nature of his interest and that when he came of age he became aware of the fact and entered into sole possession in 1878, and en joyed it till the institution of the suit He also set up the Statute of limitation. In this connection it should be further noted that the suit was instituted more than 3 years after the cessation of the disability. On these facts it was held as follows : "The appellant could not have sued after three years had expired from his attainment of majority, and by section 28 his separate right to the property (if any) was extinguished." The point which escaped the notice of the Court below being a question of law to be decided with reference to the pleadings and evidence, I feel, I should send back the case on remand for adjudication of the question of limitation with reference to sections 6, 8 and 28 of the Limitation Act. The question whether possession of guardian or other persons entering on the infant's estate is adverse or not was subject matter of various cases but the learned Advocate have furnished me only two authorities and those again appear to be beside the point. I propose to make a brief reference to cases which escaped their notice by way of helping the Court below in arriving at a correct decision. When a guardian whether de jurf or de facto takes possession of property owned by the minor a very strong presumption arises that possession is taken on behalf of the minor but the presumption is not irrebutable As the possession 1 of a guardian is the possession of his ward, if the guardian retains possession after the ward has come of age, he is presumed to retain it as guardian until something has been done to alter the character of his possession. In the case of Morgan v. Morgan (1737 I A 489.), Lord Hardwick said "Where any person whether father or stranger enter upon the infant's property and continues possession, the Court will consider such person entering as a guardian to the infant." This principle was followed in Howard v. Shrewsbury (1874, 17 Equity 378 (399)) and several Indian cases, references of which will be available in the cases reported in 51 Mad. 977, at page 986, and 57 Bom.

488. It seems tha4 the rule laid down in the cases of Morgan v. Morgan (supra) and Howard v. Shrewsbury (supra) is (for the purposes of limitation) somewhat too broadly stated. It is of course right that a father or a person in a like fiduciary posi tion or any other person entering avowedly as a guardian and on the infant's behalf should be deemed to be entering as the infant's guardian but I am not prepared to lay down that an infant can in all cases treat a stranger as a bailiff or agent for the purpose of escaping from the Statute of limitation. In fact in Hagely v. West (L J Ch. O S 63.) it was held (by Sir J. Leach) that the rule did not apply to a stranger who made an adverse entry. The Vice‑Chancellor of Ireland in the case of Quinton v. Frith (1868 Ir. Rep. 2 Eq. 396.) considered that the rule only applied where the person who entered was (a) natural guardian of the infant, or (b) so connected with him by relationship or otherwise as to have imposed on him the duty to protect, or at any rate not to prejudice the infant's right, or (c) when he took possession with knowledge of the infant's right. In the case of Hobbs v. Wade (36 Ch. D 533.) a father (who had taken possession of his infant son's property) continued in possession for over 12 years after the son attained majority and it was held that the son was not thereby barred. Possession held by the mother on behalf of both her minor sons could not be deemed to be adverse to either of them. In the case of Vasundeo Atmaravi Joshi and another v. Eknath Balkrishna Thite and others (I L R 35 Bom. 79.), the owner died leaving behind minor sons but possession of his property was taken by his mistress, On this same fact it was held that even though the mistress was not guardian she should be held to have taken possession on behalf of the minor sons of the man whose mistress she had been. The earlier decisions did not make any distinction between the possession of stranger and that of de facto or de jure guardian but the latter decisions as already pointed out are not uniform on the point. To my mind it seems it will be unsafe to lay down as general proposition that there could be no adverse possession of property which belongs to the lunatic or minor during the continuance of the lunacy or minority of the owner. The question has in each case to be decided with reference to the anterior relationship between the person taking possession and the lunatic or minor, and to whether any circumstances exist which would entitle the Court to hold that the person who entered into possession did so under circumstances which would in law make him only an agent or bailiff of the lunatic or minor. In cases where it is clear that the person entering into possession was under no duty to the lunatic or minor and entered into possession for his own benefit and in assertion of a title hostile to that of the lunatic or minor, limitation would begin to run from the date when he so took possession, though the lunatic or minor would be entitled to file a suit within 3 years from the date when his disability ceases (vide sections 6 and 8). Next comes the third point. The learned Advocate for the appellant contends that the lower Appellate Court erred in law in holding that though a notice under section 70 of the Wakf Act was not given, the suit would not fail. In support of his contention he has relied on the case of Benoy Kumar Acherjee Choudhury v. Ahmad Ali (75 C L J 33.). That case arose out of a suit instituted by a certain Muhammadan of the district of Mymensingh for a decla ration that a certain property was a Wakf property. The learned Subordinate judge dismissed the suit on the finding that the plaintiff had no cause of action and that the suit was barred by the provisions of section 42 of the Specific Relief Act inasmuch as the plaintiff had not prayed for consequential relief. In course of the argument before a Division Bench of the Calcutta High Court it came to light that no notice was issued to the Commissioner of Wakf. On account of this omission the Hon'ble judges set aside the order of the Courts below on the finding that it was void and further directed that the suit should be heard de novo by the trial Court on all the points after the issue of notice to the, Commis sioner of Wakf in accordance with the provisions of section 70: A different view. however, was taken by another Bench of the same High Court in the case of Musafar Ahmed v. Indra Kumar Das (A I 12 1944 Cal. 40.) wherein it was held as follows The provisions of section 70 do not mean that an appeal is not competent without the Commissioner of Wakf being made a party, and the decree in the appeal to which he is not made a party is certainly not void: It is only voidable Having regard to the provisions of subsections (I) and (4) of section 70, I am of opinion that the law laid down in the case relied on by the learned Advocate for the respondent is a good law and the decree appealed from is voidable and not void. If the Commissioner feels aggrieved by the decree the law authorises him to have it set aside within one month of his knowledge. This is the spirit of subsections (1) and (4) of the section. The net result of my above finding is that the finding of the lower Appellate Court stands on all points except on the question of limitation. The appeal is thus allowed in part and the judgment and decree of the lower Appellate Court are affirmed on all points except on the question of limitation and the case is sent back to that Court on remand for recording a decision on the question whether this suit is hit by section 6 read with section 8 of the Limitation Act on the pleadings and evidence on the record. Parties shall .not be. allowed to adduce fresh evidence. I make no order as to costs on this appeal. Future costs will abide the final result. A. H. Appeal partly allowed rind case remanded.