IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1012 OF 2013
(Arising out of Special Leave Petition (Civil) No.15996 of 2007)
Sudish Prasad & Ors. … Appellant(s)
Babui Jonhia alias Manorma Devi & Ors. … Respondent(s)
J U D G M E N T
2. Aggrieved by the judgment and decree dated 16.04.2007
passed by the Division Bench of the Patna High Court in LPA
No. 58/1993, the defendant-appellant preferred this appeal
before this Court. By the impugned judgment, the Division
Bench allowed the appeal holding that the plaintiff-respondent
became the absolute owner of the suit properties.
3. The plaintiff-Respondent No.1 filed Title Suit No.12/3 of
1965/71 in the Court of Subordinate Judge, Siwan for
declaration of title over the suit property. The case of the
plaintiff, inter-alia, is that Sukai Mahto is last male holder of the
properties described in Schedule 1 , 2, and 3 of the plaint. He
died leaving behind his widow Mst. Parbatia and one daughter,
that is the plaintiff of this suit.
Mst. Parbatia after the death of
Sukai Mahto remarried in Sagai Form with Mahadeo Mahto son
Ramsharan Mahto. Hurdung @ Bacha Mahto who is
defendant No.12 in this suit was born out of the wedlock
Mahadeo through Parbatia after he remarried.
died about 12 to 16 years ago. Mst. Dhanwatia was the first
wife of Mahadeo Mahto. Now, after the death of Mahadeo
Mahto both his widows Mst.Dhanpatia and Mst. Parbatia
remarried in Sagai Form with Gopal Mahto defendant.No.2 and
Bal Kishun Mahto.
Plaintiff’s further case was that Bal Kishun
Mahto who was Chachera uncle of Sukai Mahto was appointed
guardian of Sukai Mahto by the order of district judge in the
year 1930 to look after the person and properties of Sukai
Mahto during his minority.
Bal Kishun Mahto as guardian of
Sukai Mahto had instituted a suit against one Keshwar Mahto
which was numbered as T.S. No. 35/33. That suit was
compromised whereby Keshwar Mahto gave the property
described in Schedule 1 of the plaint to Sukai Mahto. Sukai
Mahto was not a prudent man and was not sufficiently
intelligent to understand his interest as Bal Kishun continued to
look after his properties even after he attained majority.
Besides that he was minor according to law because Bal
Kishun was appointed guardian through the court. Balkishun
taking advantage of his position got executed two zerpesgi
deed dated 26.06.1940 in favour of his nephew Mahadeo
Mahto and also in favour of Deoraj Mahto without
consideration. Even after Sukai Mahto attained majority Bal
Kishun Mahto continued to look after his properties. Sukai
Mahto died in the year 1946 at the age of 23 years and at the
time of his death the plaintiff was only three years of age. Now
after the death of Sukai Mahto his properties were inherited by
his widow but his widow Mst. Parbatia remarried after three to
four months after Sukai’s death. So the properties were
inherited by the plaintiff after Parbatia’s remarried. Bal Kishun
defendant No.1 continued to look after the properties of the
plaintiff even after remarriage of Mst. Parbatia. Hence the
possession of Bal Kishun allegedly continued as a constructive
trustee on behalf of the plaintiff. Defendant No.1 has sold many
of the costly trees of sesam, mango and mahuwa. Now the
plaintiff was married on 08.07.61 and the plaintiff’s gawana took
place in 1962 and since then the plaintiff is living in her sasural.
Plaintiff seeing dishonest intention of defendant No.1
demanded possession of the properties but defendant No.1
failed to do so. Hence this suit has been brought.
4. The suit was contested by the defendant-appellant by
filing written statement. Defendant Nos.1 to 3 have filed a joint
written statement. These defendants have stated in para 5 of
the written statement that they do not deny the statements
contained in para 1 to 4 of the plaint i.e. statements contained
in paras 1 to 4 are admitted specifically. In para 3 of the plaint
the plaintiff has said that Sukai died leaving behind his widow
Mst.Parbatia and a daughter i.e. the plaintiff. They have further
stated that Mst. Parbatia remarried with Mahadeo soon
thereafter Sukai had become major before institution of T.S.No.
35/33 and he had taken possession of his properties from Bal
Kishun Mahto and had taken accounts from him. Therefore,
nothing is due against Bal Kishun during minority of Sukai
Mahto. Balkishun had properly managed his properties and
performed sharadh of his mother. Hence after Sukai attained
majority, he orally gifted 1 B 14 dhurs to defendant No.1 in
presence of panchas in lieu of his services as guardian and
also in lieu of performing his sharadh. After the death of Sukai
his properties were inherited by his widow Mst. Parbatia. Now
Mst. Parbatia remarried with Mahadeo and since then the
plaintiff and Mst. Parbatia started residing with Mahadeo.
There was no question of defendant No.1 managing the
properties as a trustee. Sukai Mahto had executed zerpesgi
deed and got consideration. He had also executed another
zerpesgi dated 26.04.40 in favour of Mahadeo Mahto and
consideration was duly paid. The zerpeshgies were genuine
transactions and it is not a fact that Mahadeo Mahato got it
executed by Sukai by undue influence. Defendant No.1 was
never in possession of the properties of Sukai after his attaining
majority, as a trustee. He was never in possession as a trustee
after the death of Sukai on behalf of the plaintiff. Now these
defendants have stated in para 35 of the written statement that
except the properties described in Schedule Ka of the written
statement, other properties after the death of Sukai came in
possession of his widow Mst. Pabatia and after her sagai the
properties were inherited by the plaintiff and is coming in
possession of the plaintiff.
5. Defendant No.12 has filed separate written statement.
Substance of the defence is that the suit is not maintainable;
the plaintiff has no cause of action for the suit; that the suit is
barred by limitation; the plaintiff has no right, title and interest to
the suit land. The genealogical table given in the plaint is not
correct. The plaintiff is not the daughter of Sukai but the
plaintiff is the daughter of Mahadeo through Mst. Dhanwatia
defendant No.10. The plaintiff has no title nor the plaintiff was
ever in possession of the suit land. Defendant No.12 Hurdung
Mahto is the son of Mahadeo Mahato through Mst. Parbatia. It
is correct that Sukai died in 1946 leaving behind his widow Mst.
Parbatia and Mst. Parbatia came in possession over all his
properties. Mst. Parbatia remarried with Mahadeo in sagai form
two to three months after the death of Sukai. Now Mst.
Parbatia gave birth of defendant No.2 through Mahadeo Mahto.
Now this defendant Hurdung Mahato became major during the
pendency of his suit. Now mother of Hurdung died during his
childhood. The mother of Hurdung died more than 10 years
ago. After the death of his mother Parbatia, the step mother of
Hurdung, that is, Dhanwatia looked after the affairs of
defendant No.12 after the death of his father. After sagai of
Dhanwatia the entire properties of Sukai came in possession of
Mahadeo Mahto and so long as Mahadeo was alive he
remained in possession. After the death of Mahadeo, Hurdung
came in possession. Dhanwatia is the step mother of Hurdung.
Now she has remarried with Gopal Mahato. Now under
influence of Gopal Mahto, Dhanwatia wants to deprive
defendant No.12 Hurdung from his properties and Gopal wants
to acquire those properties for his son defendant No.10.
Defendant No.1 is old man. Now defendant No.2 by bringing
father of defendant No.1 and Jagdeo in collusion want to grab
the properties of this defendant. Now this suit has been filed by
the plaintiff at the instance of Gopal Charbaran Mahato was the
Mukhia Gopal was created some documents by bringing Mukea
in his collusion. Sukai was never illiterate. Defendant No.1 had
given up possession of the properties of Sukai during the life
time of Sukai. He had also rendered all his accounts and the
suit was brought surreptitiously without knowledge of the
defendant No.12 and that defendant No.12 came to know about
the suit then he filed this written statement. The plaintiff was
not born in Magh, 1252F, but the plaintiff was born in Falgun,
1947 and the plaintiff was not major at the time of filing of this
suit. The age of the plaintiff was not 20 years at the filing of this
6. On the basis of the pleadings of the parties, the trial court
framed the following issues:
1. Whether the suit as framed is maintainable?
2. Whether the plaintiff has cause of action for the suit?
3. Whether the suit is barred by law of limitation?
4. Whether the plaintiff has subsisting title over the suit
5. Whether the plaintiff is entitled to recover possession from
any of the defendants who is held to be in possession
over the suit land?
6. Whether Sukai Mahato had made oral gift of 1B 14 dhurs
in favour of Balkishun defendant No.1 and whether
Balkishun remained in possession of that land and
whether his title is perfected by adverse possession over
7. Whether the plaintiff’s is entitled to demand account from
Balkishun Mahato and also recovery of dues from
Balkishun as claimed in the plaint?
8. Whether the plaintiff is entitled to recover mesne profits
from any of the defendants?
9. Whether the plaintiff is entitled to any relief or reliefs?
7. While deciding issue No.4 as to whether the plaintiff has
subsisting title over the suit land, the trial court after discussing the
evidence proceeded to decide the legal issue and held that after
remarriage Parbatia lost her title and interest in the estate of her
previous husband but she continued in possession of the property
even after remarriage hence her possession according to law
continued to be that of trespasser. The trial court further held that
possession of Parbatia even after remarriage cannot be said to be as
a constructive trustee of the plaintiff and she was holding the property
independently treating the property as her widow’s estate. The trial
court consequently held that she acquired a right of widow’s estate by
8. While deciding issue Nos. 3 and 5 the trial court held that
since the suit was filed within 12 year from the date of death of Mst.
Parbatia the suit is not barred by limitation and the plaintiff is entitled
to half share in the suit property. Curiously enough, while deciding
issue No.6 regarding the validity of oral gift, the trial court held that
Bal Kishun being in possession of property allegedly under the oral
gift, the plaintiff is not entitled to recover possession of the same.
Hence the suit was decreed in part.
9. Aggrieved by the said judgment and part decree both
parties preferred appeals before the High Court which were disposed
of by a common judgment. The learned Single Judge concurred the
finding recorded by the trial court and dismissed the appeal. The
plaintiff respondent then filed Letters Patent Appeal before the Patna
High Court against the judgment of a learned Single Judge passed in
appeal and the same was registered as LPA No.58/1993. The
Division Bench of the Patna High Court after elaborate discussion of
the evidence and facts and also the law allowed the appeal and set
aside the judgment and decree passed by the trial court and the first
appellate court. The Division Bench declared title and ownership of
the plaintiff-Respondent in respect of the entire suit properties left by
Sukai. Hence this appeal by defendant-Appellant.
10. Mr. Sunil Kumar, learned senior counsel appearing for the
Appellants assailed the impugned judgment rendered by the Division
Bench as being illegal, perverse in law and contrary to facts and
evidence available on record. Learned senior counsel firstly
contended that the Division Bench erred in law in not holding that the
guardianship ceases automatically, on minor attaining majority and
no order by the court is necessary for declaring Sukai Mahto as
major. He further submitted that Mst. Parbatia, widow of Sukai
Mahto remained in possession of her previous husband’s estate even
after remarriage claiming title by adverse possession. Learned
counsel strenuously contended that Bal Kishen Mahto, uncle of Sukai
Mahto was appointed guardian in the year 1930 to look after the
properties of Sukai Mahto during minority and, the moment Sukai
Mahto became major, the guardianship ceases automatically.
According to the learned counsel even Bal Kishun Mahto having been
in continuous possession of the suit property acquired title by adverse
possession in respect of 1B 4 Dhurs of the land and building. The
Division Bench committed serious illegality in so far as it failed to take
into consideration that Mst. Parbatia was holding the properties
independently and not as a trustee. Consequently, Hurdung came in
possession after the death of his mother Mst. Parbatia. In the result,
the suit filed by the plaintiff-respondent ought to have been dismissed
as barred by limitation and adverse possession.
11. We do not find any substance in the submission made by the
learned counsel for the appellant.
12. Indisputably defendant No.1 Bal Kishun Mahto was appointed
as Guardian of Sukai by the order of District Judge.
Once a person is
appointed by the Court to be a Guardian of the property of ward, he is
bound to deal with the property as carefully as a man of ordinary
prudence would deal with it, if it were his own property. He is bound
to do all acts for the protection and benefit of the property. A
Guardian appointed by Court cannot deal with the property by way of
sale, mortgage, charge or lease without the permission of Court and
against the interest of minor.
13. It is well settled law that a Guardian stands in a fiduciary relation to his ward and he is not supposed to make any profit out of his office. On being appointed as Guardian of the property of minor, he is to act as a trustee and he cannot be permitted to gain any personal profit availing himself of his position and such action of the Guardian while dealing with the property against the interest of ward would be voidable in the eye of law.
14. Coming back to the instant case it appears that Bal Kishun
Mahto immediately after the appointment as Guardian started dealing
with the property against the interest of Sukai. Not only he entered
into a compromise in a suit filed in 1933 but executed two zerpesgi
deed in the year 1940 in favour of his nephew Mahadev Mahto and
also in favour of Dev Raj Mahto without the permission of Court and
without any consideration. After the death of Sukai Mahto in 1946 at
the age of 23 years leaving behind the plaintiff who was only 3 years
old, he continued possession of the suit property as trustee.
Curiously enough the said Bal Kishun Mahto claimed to have
acquired a portion of the suit property alleged to have been orally
gifted to him by Sukai in lieu of his services as Guardian. The said
claim by way of oral gift has no sanctity in the eye of law.
15. The Division Bench of the High Court in the impugned judgment
has considered all these facts and also the claim of Parbatia over the
suit property although she remarried 2-3 months after the death of
The Division Bench rightly came to the following
“In the instant appeal, the plaintiff-appellant is
the question of anyone
acquiring any interest in any part of the said
estate through adverse possession never
arose inasmuch as the property in question
remained in the custody of the guardian all
throughout and through the custody of the
guardian the property was in fact custodia
Having regard to the fact that Bal Kishun
was, admittedly, appointed as a guardian of
the person and the property of Sukai and,
admittedly, there being no order of discharge,
in law, it must be held that the properties of
Sukai remained custodia legis all throughout
and, accordingly, there was no question of
anyone acquiring the same by adverse
Bal Kishun, as the guardian of the person and
property of Sukai, was holding the same for
the benefit of Sukai during his lifetime and
upon his death for and on behalf of the person
who was entitled to inherit the property of
Sukai in accordance with the laws of
Inasmuch as the properties in
question were not coparcenary properties, the
widow was entitled to inherit before the
daughter, but on the civil death of the widow,
the properties vested in the daughter, i.e. the
plaintiff. Thus, Bal Kishun, during his lifetime,
was holding the properties in question initially
for the benefit of Sukai and upon his death for
the benefit of his widow and upon her civil
death for the benefit of the plaintiff.
as the court did not authorise dealing of any
part of the estate of Sukai in any manner
whatsoever, neither Sukai, during his
liefetime, nor Bal Kishun in his life time and at
the same time not even the widow of Sukai,
namely, Parbatia or the plaintiff, upon the civil
death of Parbatia, could deal with the said
properties in any manner whatsoever.
result, the conclusion would be that Bal
Kishun remained accountable in respect of the
properties in question to the true owner
thereof until his death, when in fact he stood
discharged in law from the guardianship of the
properties of Sukai,although by reason of
death of Sukai, Bal Kishun stood discharged
of the guardianship of the person of Sukai
from the date of the death of Sukai.
In those circumstances, the one and the only
logical conclusion that could be arrived at one
the basis of the evidence on record that Bal
Kishun continued to be in the helm of the
affairs pertaining to the properties of Sukai for
the sole benefit of the plaintiff after the civil
death of Parbatia and, accordingly, the suit
ought to have been decreed in favour of the
plaintiff directing discharge of Bal Kishun with
a further direction to furnish accounts
pertaining to the properties in question.”
16. In our considered opinion, the Division Bench rightly allowed
the appeal and set aside the judgment and decree passed by the trial
court and the first appellate court which were totally perverse in law.
17. For the reasons aforesaid, there is no merit in this appeal which
is accordingly dismissed.
(Surinder Singh Nijjar)
February 7, 2013