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[REPORTABLE]

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)

Vs.

Babui Jonhia alias Manorma Devi & Ors.            …       Respondent(s)

J U D G M E N T

M.Y.EQBAL,J.

       Leave granted.

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  

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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.  Mahadeo Mahto  

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  

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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  

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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,  

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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  

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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.  

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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  

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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  

suit.  

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  

land?

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?

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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  

that area?

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  

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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  

adverse possession.

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  

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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  

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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.

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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.

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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  

Sukai  Mahto.   The  Division  Bench  rightly  came  to  the  following  

conclusion:

“In the instant appeal, the plaintiff-appellant is  contending  that  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  legis. 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  possession. 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  inheritance.   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  

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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.  Inasmuch  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.  As a  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.

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17. For the reasons aforesaid, there is no merit in this appeal which  

is accordingly dismissed.

…………………………….J. (Surinder Singh Nijjar)

           …………………………….J.                     (M.Y. Eqbal)

New Delhi, February 7, 2013

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