SUDISH PRASAD & ORS.versusBABUI JONHIA ALIAS MANORAMA DEVI & ORS.

                        (2013] 1 S.C.R. 801


                    SUDISH PRASAD & ORS.                                 A
                                   v.
       BABUI JONHIA ALIAS MANORAMA DEVI & ORS.
               (Civil Appeal No.1012 of 2013)
                        FEBRUARY 7, 2013
                                                                         B
      [SURINDER SINGH NIJJAR AND M.Y. EQBAL, JJ.]

        Suit - Title suit - Plaintiff claiming title over the property
  left by her father - Allegation that defendant appointed as
  guardian of her father was in possession of the property even          C
  after the death of her father- Plea that after the mother of the
  plaintiff remarried after her father's death, plaintiff became the
  sole owner- Defendant stating that he was not in possession
  of the property and that some portion of the property was orally
  gifted to him by the father of the plaintiff - Trial court partly      D
  decreed the suit holding that she was entitled to only half
  share, as for half share her mother acquired the right of widow's
  estate and that she was not entitled to the part of property
  gifted by her father to the defendant - First appellate Court
  affirmed the decree - Division Bench of High Court set aside           E
  the decree holding that the plaintiff was entitled to the entire
  property - On appeal, he(d: Plaintiff was entitled to decree in
  her favour - Defendant No. 1 was in the helm of affairs
  pertaining to the property for the benefit of widow and the
  plaintiff after the death of the owner and for the benefit of          F
  plaintiff after the civil death of the widow (due to her
  remarriage) - The claim of defendant by way of oral gift has
  no sanctity.
       Plalntlff-respondent No. 1 field a suit for title over the
  suit property. The case of the plalntlff was that the suit             G
  property orlglnally belonged to her father 'S'. The
~ property was being managed by defendant No. 1 as he
  was appointed as guardian of 'S' by the Court. Defendant
  No~ 1 taking advantage of his position, got executed two
                              801                                        H
      802      SUPREME COURT REPORTS            [2013) 1 S.C.R.


 A 'zerpesgi' deeds, one in favour of his nephew 'M' and
   another in favour of one 'D' without any consideration.
   After the death of 'S', the property was in possession of
   his widow 'P' and the plaintiff was a minor. After 2 to 3
   months of the death of 'S', 'P' married 'M', and after the
 B remarriage, plaintiff inherited the suit property. Defendant
   No. 1 was still in possession of the property.

        The defendants contested the suit, stating that 'S'
    had taken possession of his property after attaining
  C majority. 'S' orally gifted some part of land to defendant
    No. 1 in lieu of his services as guardian and also for
    performing shraddh of his mother, and that 'zerpeshgies'
    were genuine transactions.
         Trial court decreed the suit in part holding that
  D plaintiff was entitled to half share in the property and for
    half share her mother 'P' acquired the right of widow's
~   estate by adverse possession. The Court also held that
    plaintiff was not entitled to recover the possession of that
    part of the property which was orally gifted by 'S' to
  E defendant No. 1.
          Single Judge of High Court affirmed the judgment of
    trial court. In LPA, Division Bench of High Court uet aulde
    the decree pasued by courts below and declared title and
  F owneruhlp of the plaintiff In respect of the entire suit
    property left by 'S'. Hence the present appeal by
    defendant-appellant.
            Olumluulng the appeal, the Court
  G       HELD: 1. Once a peruon lo appointed by the Court
     to be a Guardian of the property of ward, he lo bound to
     deal with the property au carefully ao a man of ordinary
     prudence would deal with It, If It were hlu own property.
     He lo bound to do all actG for the protoctlon and benefit
  H rof the property. A Guardian appointed by court cannot
 SUDISH PRASAD & ORS. v. BABU! JONHIA ALIAS 803
          MANORAMA DEVI & ORS.
deal with the property by way of sale, mortgage, charge A
or lease without the permission of the court and against
the interest of minor. 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 B
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. [Paras 12 and
13] [811-B-E]                                              C
      2. Defendant No. 1, immediately after the
 appointment as Guardian of 'S' started dealing with the
 property against his interest. 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 D
 'M' and also in favour of one 'D' without the permission
 of court and without any consideration. After the death
 of 'S' in 1946 at the age of 23 years, leaving behind the
 plaintiff who was only 3 years old, he continued in
 possession of the suit property as trustee. He claimed to E
 have acquired a portion of the suit property alleged to
 have been orally gifted to him by 'S' lieu of his services
as Guardian. The said claim by way of oral gift has no
sanctity In the eye of law. The Division Bench of the High
Court has considered all these facts and also the claim F
of widow of 'S' over the suit property although she
remarried 2-3 months after the death of 'S'. The Division
Bench rightly came to the conclusion that the question
of anyone acquiring any Interest In any part of the said
estate through adverse possession never arose G
Inasmuch as the property In question remained In the
custody of the guardian ~II throughout and through the
custody of the guardian, the property was In fact custodla
leg/s. The properties of 'S' remained custod/a legls all
throughout and, accordingly, there was no question of H
 '
    804      SUPREME COURT REPORTS                  [2013] 1 S.C.R.

A anyone acquiring the same by adverse possession. On
  the civil death of the widow, the properties vested in the
  daughter, i.e. the plaintiff. Thus, defendant No. 1 during
  his lifetime, was holding the properties in question initially
  for the benefit of 'S' and upon his death for the benefit of
B his widow and upon her civil death for the benefit of the
  plaintiff. He continued to be in the helm of the affairs
  pertaining to the properties of 'S' for the sole benefit of
  the plaintiff after the civil death of the widow and,
  accordingly, the suit ought to have been decreed in
c favour of the plaintiff directing discharge of defendant No.
  1 with a further direction to furnish accounts pertaining
  to the properties in question. [Paras 14 and 15] [811-F-
  H; 812-A-E, G; 813-D-E]
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.
D 1012 of 2013.

        From the Judgment & Order dated 16.4.2007 of the High
    Court of Judicature at Patna in LP.A. No. 58 of 1993.

          Sunil Kumar, Anil K. Jha, Rohini Prasad for the Appellants.
E
       A.N. Choudhary, Chander Shekhar Ashri for the
    Respondents.

          The Judgment of the Court was delivered by
F
          M.Y. EQBAL, J. 1. 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
G 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
H 1965/71 in the Court of Subordinate Judge, Siwan for
 SUDISH PRASAD & ORS. v. BABUI JONHIA ALIAS                       805
    MANORAMA DEVI & ORS. [M.Y. EQBAL, J.]
declaration of title over the suit property. The case of the plaintiff,   A
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 Saga( Form with Mahadeo Mahto                    B
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                    c
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          D
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               E
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             F
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               G
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               H
    806      SUPREME COURT REPORTS                   [2013) 1 S.C.R.

A   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,
B   mango and mahuwa. Now the plaintiff was married on 08.07.61
    and the plaintiffs 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
C   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
D   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
E   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
F   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
G   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
H   26.04.40 in favour of Mahadeo Mahto and consideration was
 SUDISH PRASAD & ORS. v. BABUI JONHIA ALIAS                     807
    MANORAMA DEVI & ORS. [M.Y. EQBAL, J.]
duly paid. The zerpeshgies were genuine transactions and it             A
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             B
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          c
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    D
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 n0title nor the plaintiff was ever in
possession of the suit land. Defendant No.12 Hurdung Mahto              E
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         F
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 1-:lurdung, that       G
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.                 H
    808        SUPREME COURT REPORTS                  [2013] 1 S.C.R.


A 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
B 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
c 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
D 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
E court framed the following issues:

          1.     Whether the suit as framed is maintainable?

          2.     Whether the plaintiff has cause of action for the
                 suit?
F
          3.    Whether the suit is barred by law of limitation?

          4.    Whether the plaintiff has subsisting title over the suit
                land?
G         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
H               dhurs in favour of Balkishun defendant No.1 and
  SUDISH PRASAD & ORS. v. BABUI JONHIA ALIAS 809
     MANORAMA DEVI & ORS. [M.Y. EQBAL, J.]
             whether Balkishun remained in possession of that           A
             land and whether his title is perfected by adverse
             possession over that area?

      7.     Whether the plaintiffs is entitled to demand account
             from Balkishun Mahato and also recovery of dues            8
             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         c
             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     D
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        E
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        F
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       G
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 judgme'1t and part decree both
parties preferred appeals before the High Court which were              H
    810      SUPREME COURT REPORTS                    [2013] 1 S.C.R.


A 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
B 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
c ownership of the plaintiff-Respondent in respect of the entire
  suit properties left by Sukai. Hence this appeal by defendant-
  Appellant.

          10. Mr. Sun ii Kumar, learned senior counsel appearing for
    the Appellants assailed the impugned judgment rendered by
D   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
E   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
F   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
G   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
H   after the death of his mother Mst. Parbatia. In the result, the suit
 SUDISH PRASAD & ORS. v. BABUI JONHIA ALIAS                  811
   MANORAMA DEVI & ORS. [M.Y. EQBAL, J.]

filed by the plaintiff-respondent ought to have been dismissed      A
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           B
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           C
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.
                                                                    D
     13. It is well settled law that a Guardian stands in ~
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 E
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          F
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.      G
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     H
    812       SUPREME COURT REPORTS                   [2013] 1 S.C.R.

A 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
8
  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
c         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,
D         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
E         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
F         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
G         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. Inasmuch as the court did not authorise dealing
          of any part of the estate of Sukai in any manner
H         whatsoever, neither Sukai, during his liefetime, nor Bal
 SUDISH PRASAD & ORS. v. BABUI JONHIA ALIAS 813
    MANORAMA DEVI & ORS. [M.Y. EQBAL, J.]
    Kishun in his life time and at the same time not even the A
    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 B
    his death, when in facflle" 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.                                           c
     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      D
     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."
                                                                     E
      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.
                                                                     F
    17. For the reasons aforesaid, there is no merit in this
appeal which is accordingly dismissed.
K.K.T.                                       Appeal dismissed.,