1. This appeal has been preferred by defentants Nos. 1 to 3 and it arises out of a suit instituted by the plaintiff for declaration of title to and for recovery of possession of the property involved in this litigation. The plaintiff's case is as follows:—It is said that the property in suit had belonged to one Indrajit Lohar, who had a son named Ramnichhatar and a daughter named Ramraja. The son was married to one Mosst. Sahaji. Ramrajia was married to Rajbansi Lohar. Ramrajia died in the lifetime of her father, leaving behind a son named Anand, who is the plaintiff in this suit. Ramnichhatar died leaving no issue, and after his death, when Ramrajia was also dead, Indrajit got Sahaji married to Rajbansi. When Indrajit was alive, he and Sahaji jointly executed a deed of gift on the 22nd November, 1955, in favour of Anand giving him Indrajit's property including the disputed land. Before this deed of gift could be registered, Indrajit had died. The document was registered after his death. Thus, according to the plaintiff, he had come in possession of the property of Indrajit and the defendants started to interfere with his possession with the result that a proceeding under Section 144 of the Cr PC had commenced. This proceeding had ended in the plaintiff's favour thereafter, it appeared that in the Government Serishta the name of Dhanushdhari original defendant No. 1, was mutated in collusion with the Karamchari and the plaintiff was dispossessed from the disputed land in Baisakh 1365 Fasli. Thus, this suit had to be instituted for possession with mesne profits according to the plaintiff who is a minor, his step-mother Mosst. Sahaji was not well disposed towards him with the result that his father. Rajbansi had adverse interest to the minor and, therefore, the suit had been instituted with the uncle as the minor's next friend.
2. The substance of the defendants' case is as follows: The relationship of the plaintiff with Indrajit Lohar was denied and the validity of the deed of gift has been challenged. According to a separate genealogical table given by the defendants. Indrajit and the defendants had descended from a common ancestor. It was admitted that Indrajit had a son named Ramnichhatar but it was denied that he had any daughter at all. According to the defendants, after the death of Ramnichhatar his widow. Sahaji had married Rajbansi, father of the plaintiff Rajbansi's first marriage was with a lady of some other village and the plaintiff is the son of Rajbansi and that wife. It was denied that the plaintiff was the son of Rajbansi and Ramrajia daughter of Indrajit Lobar. Thus, according to the defendants, they were agnates of Indrajit and the plaintiff was unconnected with his family it is alleged that the present suit has been collusively brought and a deed of gift has been fabricated. The defendants claimed to be in possession of the disputed property after Indrajit's death. On a consideration of the materials on record, the suit was decreed by the trial Court and an appeal was carried in the Court of appeal below by the present appellants. The appeal has failed. The trial Court had held that the plaintiff was the daughter's son of Indrajit and the Court had also upheld the validity of the deed of gift dated the 22nd November, 1955. The plaintiff's title and possession until dispossession by the defendants were accepted. But, it was held that the defendant were agnates of Indrajit, as was their case, in the Court of appeal below, all the findings of the trial Court have been affirmed, except that the learned Subordinate Judge has held that the defendants-appellants have failed to prove that they were agnales of Indrajit Lohar. That is why in the order portion of the judgment of the Court of appeal below it has been mentioned that the judgment and decree of the trial Court are affirmed, but with modification. The real effect of the decree of the appellate Court is that the decree of the trial Court has been upheld in full.
3. Several points have been urged in this Court by learned counsel for the appellants and I will consider them in tile order in which they have been argued. The first contention raised is that in view of Section 11 of the Hindu Minority and Guardianship Act, 1956 (Central Act No. 32 of 1956), the plaintiff's suit with the uncle as the next friend was not maintainable. Section 11 of the Act reads thus:
“After the commencement of this Act no person shall be entitled to dispose of, or deal with the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor.”
4. I do not, however find any merit in this contention. Institution of this suit by the minor with the uncle as the next friend cannot come within the prohibition laid down by S. 11, where it states that no person shall be entitled to dispose of or deal with the properly of a minor on the ground of his being the de facto guardian Under O. XXXII, R. 4(1) of the CPC, any person who is of sound mind and has attained majority may act as next friend of minor in a suit. The plaintiff had alleged in the plaint the circumstances under which he had instituted this suit with the uncle as the next friend and I do not think that the contention of the learned counsel for the appellants based on Section 11 of the Act, mentioned above, can be accepted for holding that the suit was not maintainable, as the plaintiff had filed the suit with the uncle as the next friend.
5. The second contention raised is that the court of appeal below has not independently applied its mind to the evidence on record in arriving at the conclusion that the plaintiff was the daughter's son of Indrajit Lohar Learned counsel has referred to paragraph 12 of the judgment of the Court of appeal below and has argued that in this paragraph the learned Subordinate Judge has merely stated what the trial Court had held and no portion of the judgment shows that the learned Subordinate Judge has applied his mind to the oral evidence of the plaintiff's witnesses in connection with the alleged relationship with Indrajit. Learned counsel for the appellants has relied upon the case of Sailajananda Pandey v. Lakhichand Sao, AIR 1951 Patna 502 in this connection in my opinion, this contention is also not valid it appears from Paragraph 12 of the judgment of the lower appellate Court that the learned Subordinate Judge has really dealt with the evidence of the plaintiff's witnesses and it is not possible to hold that in this part of the judgment the learned Judge was merely repeating the observations of the trial Court, unmindful of the record of the case. If Paragraph 12 of the appellate Court judgment is considered along with paragraph 14 of the trial Court judgment, it will be clear that the trial Court had accepted the evidence of plaintiff's witnesses No. 7 and 9 upon the question of the plaintiff's relationship and the learned Judge on appeal was also accepting the evidence of P.Ws 7 and 9. In any case, the learned Subordinate Judge was accepting the evidence of P.W 9 referring to him as a common relative holding that this evidence was sufficient to prove the plaintiff's relationship with Indrajit. Merely because the learned Subordinate Judge has stated that he need not repeal the evidence of the plaintiff's witnesses because the learned Munsif had scrutinised their evidence at a great length, cannot be sufficient for holding that the learned Subordinate Judge did not independently apply his mind to the evidence on record. The principle laid down by this Court in Sailajananda Pandey's case, AIR 1951 Pat 502, relied upon by learned counsel for the appellants, cannot be disputed, but all that Narayan, J. in his decision said was that it must appear from the judgment of the lower appellate Court that it has made an endeavour to make proper appraisement of the merits of the cases preferred by the parties Having considered this question raised by learned counsel for the appellants. I am not prepared to hold that the judgment of the learned Subordinate Judge can lead to the conclusion that he had not applied his mind to the records of the case.
6. Thirdly, it has been argued by learned counsel for the appellants that the deed of gift was not validly registered in view of Section 32 of the Indian Registration Act and, therefore, the plaintiff could not have based his title thereon. This question is really academic in this case, once if is held by the Court of fact that the plaintiff was the daughter's son of Indrajit and the defendants were not his agnates, because the plaintiff must succeed even apart from the deed of gift. But, in any event, the contention raised upon Section 32 of the Indian Registration Act is also not valid. The argument of learned counsel for the appellant is that Mosst. Sahaji had no title to the property conveyed by the deed of gift and the registration of the document, on her own admission, after (sic) the death of Indrajit, was an invalid registration Section 36 of the Registration Act to, however, a complete answer to this contention. It appears that after the death of Indrajit, the deed of gift had been presented for registration by Mosst. Sahaji and the registering authorities had accepted her representation of Indrajit. This matter has been mentioned in Paragraph 16 of the judgment of the Court of appeal below, and in my opinion, the learned Judge's approach to this point is quite correct. Mosst. Sahaji had appeared before the registering authority as an executant of the document as also as a representative of Indrajit. The endorsement of the registering authority states that he was satisfied about the authority of Mosst. Sahaji and, therefore, it is quite clear that under Section 35 of the Registration Act, the registering authority was competent to register the document.
7. Then, it has been argued by the learned counsel that upon the question of possession, the Court of appeal below has not considered the entire evidence on record. There is no validity in this contention either. In paragraphs 17 and 18 of the judgment of the Court of appeal below the question of possession of the parties has been adequately dealt with Lastly, it has been contended by the learned counsel that the Court of appeal below was not entitled to modify a finding arrived at by the trial Court in favour of defendants Nos. 1 to 3, that they were agnates of Indrajit Lohar. There is no validity in this contention either.
8. The plaintiff respondent in the Court of appeal below had supported the decree of the trial Court and the plaintiff could have raised the question that one of the findings given by the trial Court was erroneous in my opinion, nothing wrong has been done by the Court of appeal below in reversing a finding of the trial Court in affirming the decree.
9. For the reasons given above, it must be held that the appeal is without any merit. It is, therefore, dismissed with costs to the plaintiff-respondent.
AJ/AGT/D.V.C
10. Appeal dismissed.