P L D 1960 Dacca 948 (PLP)

6. The defence also challenged the validity of the transfer on the ground that the transfer by the mother as the natural guardian of her minor sons was invalid as there was no legal necessity for the transference of the said land.

7. Both in the trial Court as well as in the Court of Appeal below the question of title to these lands was directly and specifically put into issue and considerable evidence adduced on this point. Some four witnesses were examined on behalf of the plaintiffs and some five on behalf of the defendant. A large number of documents were also put in including the decree in Title Suit No. 59 of 1943 and the writ of delivery of possession in execution of that decree. Certain documents were also filed by the plaintiffs relating to the proceedings taken by Golak Chandra Tikadar under section 145 of the Code of Criminal Procedure including the written objection filed therein by Salaka Dasi and the deposition of Salaka Dasi in the probate case started by Sukhada upon the basis of the will of Panchu Majumdar set up by her. In the written objection it was stated that having fallen into adverse circumstances, Salaka was compelled to transfer the pasta lands to Golak Chandra Tikadar. In the probate case also Salaka clearly stated about the transfer to Golak Chandra. Some documents were also filed to prove that out of the sale proceeds of this transaction, certain other properties were acquired for the benefit of the minors.

8. Upon this evidence, both the Courts below came to the conclusion that the plaintiffs had established their title to the suit lands and hence, the purported transfer by Gokul to defendant No. 1 and Arabindo Biswas by the kabala, Ext. A, did not give any right to the said defendant to cut and take away the paddy from the land.

9. The Court of Appeal below was of the further opinion that the alleged transfer in favour of defendant No. 1 by Gokul was hit also by the provisions of sections 3 and 5 of the East Bengal Transfer of Agricultural Land Act, XXXIII of 1951, which prohibited the transfer of agricultural lands over ten bighas without the necessary permission of the appropriate authority.

10. With regard to possession also, the Courts below accepted the plaintiffs' oral evidence and decreed the suit for a sum of Rs. 633 as the price of 76 maunds of paddy at the rate of Rs. 8 per maund inclusive of Rs. 25 as the price of the straw.

11. The lower Appellate Court further found that the plaintiffs were in possession of the suit lands and that it was they who had grown the paddy which defendant No. 1 with the help of the other defendants removed by force.

12. It is against this decision that the said defendant No. 1 has now come up on second appeal toe this Court and on his behalf it has been urged that the Courts below erred in holding that the transfer by the mother Salaka Dasi on behalf of her minor sons was also binding on the said minor sons. In this connection my attention is drawn to the provisions of section 27 of the Guardians and Wards Act, but I must point out that the Guardians and Wards Act does not interfere with the personal; laws of Hindus and Muslims. Section 6 of the said Act itself makes it clear that the power of appointment of a guardian under the personal laws of Hindus and Muslims has not been taken' away. According to Sir Dinshaw Fardunji Mulla in his book on Hindu Law, at page 593 of the tenth edition, the Guardians and Wards Act does not alter or affect the rights of natural guardians, under the Hindu Law and the powers of the natural guardians of a; Hindu minor are larger than those of a guardian appointed under that Act. A natural guardian may alienate the minor's property even without the sanction of the Court, provided the alienation is one for necessity or for the benefit of the estate.

13. This view of Sir Dinshaw Fardunji Mulla appears also to be supported by a Full Bench decision of the Calcutta High Court in the case of Kand Chunder Goswami v. Bisweswer Goswami and others (I L R 25 Cal. 585.). It is clear, therefore, that the mother, being the' next natural guardian, in the absence of the father, under the Hindu Law, had the power to transfer the properties of the minors for legal necessity and for the benefit of the minors. Both the Courts below have found that the legal necessity and the benefit existed. They have relied upon the earlier admissions of the mother Salaka herself in the 145‑criminal proceedings and the probate proceedings to the effect that having fallen into adverse circums tances she was compelled to transfer the patta lands to Golak Chandra Tikadar. Some of the documents produced have also been held to show that out of the sale proceeds, other properties were acquired on behalf of the minors and for their benefit.

14. It was suggested that since these documents filed only proved the acquisition of lands of very small value out of the said consideration of Rs. 2,000, the benefit had not been established. The transfer in the present case was for legal necessity, and, there fore, the test is not whether lands of equivalent value or higher value were acquired but whether the existence of the legal necessity was satisfactorily established and action was taken for the benefit of the minors concerned. I have not been shown anything from the evidence which would suggest that the absence of legal necessity was even attempted to be established by the defendant. The evidence relating thereto adduced on behalf of the plaintiffs was not even challenged in cross‑examination. Indeed, even in the grounds of appeal in this Court no specific ground has been taken to the effect that the Courts below were wrong in finding that the legal necessity for the transfer existed. In this view of the matter, the first ground urged before me fails.

15. The decision relied upon by the learned Advocate in support of his last contention in the case of Deivachila Aiyangar v. Regupathi Venkatachariar and others (A I R 1926 Mad. 46) is of no assistance to him in the present case, for, there the guardian was a testamentary guardian appointed under a will but had purported to transfer without the permission of the Court. But nevertheless, in this case, it was pointed out that if a mother acted bona fide, in the capacity of the natural guardian of her son, any disposition made by her would not be invalid, merely for the reason that other persons who were also authorised under the will to deal with the property joined in the transaction. The Court then went on in that case to consider, regarding the mother as a natural guardian of a minor, whether it was a prudent act on her part which could be justified and came to the view that the buying of an uncertain claim for future maintenance for life by making a gift of ancestral property in perpetuity was not such a prudent act and, therefore, it constituted a breach of trust but, nevertheless, the Madras High Court still took the view that such alienation was only voidable and not void. This decision, therefore, does not assist the learned Advocate so far as this last question is concerned.

16. It is next urged that the Courts below were wrong in taking the view that Salaka and the minors were bound by the earlier decision in Title Suit No. 59 of 1943, as they were merely made pro forma defendants in the said suit, the contention being that as no relief was claimed against them, their title was not in jeopardy in that suit and, therefore, the decision therein could not operate as res judicata against them.

17. With this view again, I am unable to concur. Even in the case of pro forma defendants, in my view, they are ordinarily bound by a decree which has been obtained in their presence. The decision in a former suit to which the pro forma defendant was a proper party and which affected the interest of the pro forma defendant as well operates as res judicata in a subsequent suit between the same parties, even if no relief was claimed against the pro forma defendant in the earlier suit.

18. This view appears to be supported by the decision of the Privy Council in the case of Maung Sein Done v. Ma Pan Nyun and others (59 I A 247). There also in the earlier suit Ma Pan Nyun was joined as a formal defendant as an heir of one Ma Myit, a Burmese Buddhist. The relief claimed in the suit included administration of the estate of the deceased, accounts, against the sons as executors de son tort of the deceased and the appointment of a receiver of the estate. Ma Pan Nyun did not contest that suit and filed no written statement but she gave evidence on behalf of the plaintiff in support of her claim. The suit was dismissed upon the ground that the Chinese customary law governed the succession to Ma Myit's property and that under that law no female could inherit in the presence of male issues. After this a daughter of Ma Pan Nyun some years later again filed a suit against the then heirs of Ma Myit including the plaintiff in the former suit and some of the defendants in that suit for the establishment of the plaintiff's right to one‑fourth share in Ma Myit's estate and the administration of the same estate. In this suit, a preliminary issue was raised as to whether the suit was barred by the doctrine of res judicata. Their Lordships of the 'Judicial Committee referred to two of their own earlier decisions and observed as follows: " It was urged that the doctrine of res judicata could not apply as between co‑defendants to a previous suit, if no relief had been granted to the plaintiff in that suit. Their Lordships are aware of no principle or authority which justifies this contention. In Ma Sein's suit, there had necessarily to be an adjudication upon the issues involved before the suit could have been dismissed. It was not any less an adjudication, because its consequence was the dismissal of the suit, than it would have been if its tenor had been the other way. The issues involved in the present suit of Ma Pan Nyun are identical with the issues in the earlier suit, and their Lordships are of opinion that in regard to those issues (1) there was in the earlier suit a conflict of interest between Ma Pan Nyun and her brothers ; (2) this conflict would necessarily have had to be decided in order to give Ma Sein the relief which she claimed, and (3) the question between Ma Nyun and her brothers (namely, whether she was entitled to any share in her mother's estate) was finally decided. It follows, therefore, that the plea of res judicata raised in the present litigation ought to have been successful and the suit of Ma Pan Nyun ought, on that ground, to have been dismissed." It will thus be observed that if the three conditions laid down by their Lordships of the Judicial Committee are satisfied, namely, that in the earlier suit, there is a conflict of interest between the pro forma defendant and the other parties in the suit and this conflict has necessarily to be decided in order to give the relief claimed in the plaint and the question has been decided then the principle of res judicata applies as much to a pro forma defendant as to any other defendant in the case."

19. The Calcutta High Court also in the case of Hafiz Mohammad Fateh Nasib v. Sir Swarup Chand Hukum Chand Firm and another (A I R 1942 Cal. I) also took the same view and, after reviewing a large number of decisions of the Privy Council, observed as follows: "As pointed out by the Judicial Committee of the Privy Council, if, a pro forma defendant is a proper party to a suit, he has every right to be heard, and it would follow that, if he refrains from putting his case before the Court, he does so at his own risk and he cannot afterwards complain if his rights in connexion with the subject‑matter of the suit are placed in jeopardy by reason of his neglect."

20. It was next urged that in so far as the major portion of the property in dispute, namely, one plot, No. 484, of the plaintiffs' patta, Exh. 1, is not the same as plot No. 484 of the defendant's kabala, Exh. A, the suit should not have been decreed in favour of the plaintiffs, particularly, since this aspect of the matter was not noticed by either of the Courts below. It has to be observed that if this is intended to be a question relating to the identity of the suit lands, it was not raised either directly or indirectly in any of the Courts below. Indeed, even in the Memorandum of appeal preferred in this Court, this point has not been taken in the specific form. I cannot, therefore, allow this point to be raised for the first time in second appeal, because it necessitates the taking of evidence for the identification of the land. It should have been taken at the earliest opportunity so that evidence could have been adduced either in favour of it or against it. That not having been done, it cannot be allowed to be raised for the first time in second appeal and that, too, at the stage of arguments.

21. Lastly, it is urged that the finding of possession in favour of the plaintiffs having been based purely upon the evidence of interested witnesses, the same should not be accepted as a sufficient finding of fact. It appears from the judgment of the Court of Appeal below that out of the three plaintiffs' witnesses who gave evidence on this question (P.W. 2 did not give evidence relating to possession), P.W 3 does not appear to be related to any of the parties but he admitted in cross‑examination that he had great respect for Golak Chandra Tikadar, the father of the plaintiffs, and that he used to call him Guru. P.W. 4 is admittedly a close relation of the plaintiffs and lives in the same house. 'It will thus appear that so far as P.W. 3 is concerned, all that has been dis covered is that he respected the father of the plaintiffs and used to call him Guru. This does not, in my view, show that he must necessarily be an interested witness. Respect for the father does not necessarily mean that the respect must also extend to the sons of the said person and must also go to the extent of giving false evidence in their favour. I am not, therefore, inclined to agree with the learned Advocate that the finding of the Court of Appeal below with regard to possession is based solely on the evidence of interested witnesses.

22. In this view of the matter, it is unnecessary to go into the question of the invalidly of the transfer in favour of defend ant No. 1 by Gokul by reason of the provisions of East Bengal Act XXXI of 1951, for, as I have agreed with the view of the Court of Appeal below that the defendants in the suit were bound by the decision in Title suit No. 59 of 1943, no question can now arise of Gokul, notwithstanding the said decree, retaining any further right, title or interest in himself to be able to transfer the lands to defendant No. 1.

23. So far as possession is concerned, it has been rightly urged on behalf of the respondents in this appeal that it has been concluded by a concurrent finding of fact of both the Courts below and I should not in any event disturb that finding, even if that finding has been incorrectly arrived at. I have, however, given my reasons for holding that even that finding cannot be said to be based on no evidence at all, for there is at least one witness who is sufficiently neutral to be relied upon.

24. In these circumstances, all the points urged in support of this appeal have failed and the appeal is accordingly dismissed with costs.

25. The connected Rule staying the execution case is also discharged but there will be no order as to costs therein.

26. Leave prayed for under Clause 15 of the Letters Patent is refused. K.B. A Appeal dismissed.