JUDGMENT
P.K. Deb, J.
1 .This second appeal has been preferred by the above named appellants who were plaintiffs in original Title Suit No. 63/120 of 1983-87, wherein prayer was made by the plaintiffs having right to partition of their 1/6th share in the suit property as shown in Schedule-A of the plaint. The suit was decreed in the original court by the 6th Subordinate Judge, Ranchi, but on appeal being preferred by the defendants, who are now respondents in Title Appeal No. 51/88, the decree was reversed and the suit has been dismissed by judgment dated 25.7.1995.
2. Briefly, the facts of the case are as follows:
One Chatterjee family originally owned the suit property alongwith other and after the death of original owner Madhusudan Chatterjee, his three sons had inherited the property under the Dayabhaga school of law and on their death, the heirs of the three sons had sold the suit property by different registered sale-deeds to the predecessors of the present defendants in the year 1943. In those sale-deeds which were marked as exhibit-C to exhibit-C/6 several minor inheritors had also parted with their shares in the property through their guardian, some of whom were natural. Guardians and some were de facto guardians and in some deeds although the minor’s name were not mentioned but their shares have been included in the sale-deed by their natural guardians. The plaintiffs in the present suit are the purchasers from those minors in the year 1982 and on such purchase they have come with this suit for partition of their vendors’ shares in the joint family property wherein they have stopped into the shoes of their vendors by the above purchases. It must be mentioned here that before the present suit, there was previously a partition suit between the purchasers i.e. the predecessors of the defendants from the Chatterjee family soon after their purchase in the year 1945 being partition suit No. 99 of 1945. In that suit, the original owners i.e. the members of Chatterjee family including the minors were also made parties and two members of the Chatterjee family had deposed in that suit also confirming the sale-deed of the minor’s shares to the predecessors of the present defendants. That suit was decreed for partition by the Sub-Judge, but in respect of shares of two minors, namely, Timir and Mukti were said to be not sold and it was observed by the learned Sub-Judge in his judgment that in course of allotment of shares of the contesting defendants (Purchasers from the members of the Chatterjee family), the shares of these two minors may be separately allotted either for them or through their mother who happen to be the natural guardian. In appeal being preferred before this Court, the partition suit was-decreed finally before this Court on a compromise petition being filed by the contesting defendants of the suit i.e. the purchasers from the Chatterjee family having allotment of shares in the whole of the property by amicable settlement. On the basis of that compromise being arrived at, the first appeal was disposed of, The first appeal was disposed of in this Court in the year 1958 and after that more than 24 years being passed then the plaintiffs of the present suit purchased the shares of the minors of the Chatterjee family long after their attainment of majority through their attorney and after that, filed this suit. It should also be mentioned here that there were some tenants in the suit property and after the partition decree, there was eviction suit by some of the defendants against their tenants and plaintiffs attempted in futile to get themselves impleaded as intervener but those petitions were rejected.
3. Mr. N.K. Prasad appearing for and on behalf of the appellants have attacked the appellate judgment regarding the shares of Kirti, Sisir and Samir who were minors at the time of sale to Khemraj Marwari on 5.5.43 and their share was being transferred by their second elder brother Barid Baran who was nothing but a de facto guardian as at the relevant time their mother Jyotirmai and eldest brother Bhawatosh were living and according to him such transfer by a de facto guardian was void and as such shares of those minors had never been transferred to the predecessor of defendants. His second contention is with regard to the shares of Timir and Mukti which according to him, had never been sold or transferred to the predecessor of the defendants although their shares were said to be transferred under Exhibit-C/5 by their natural guardian mother Chanchal Bala in the year 1943 to Chhotelal Modi. His contention is that the shares of Timir and Mukti were recognised to be existing by the trying Judge in partition suit No. 99/1945 and their shares were said to be allotted separately in the partition suit while delivering the judgment and his further submission is that compromise decree arrived at in the First Appellate court i.e. this Court had never set aside the observations regarding the shares of these two minors as per observation made by the learned Sub-Judge and the appeal was dismissed against the other defendants i.e. the members of the Chatterjee family, meaning thereby the compromise decree in the first appeal did not taken away the shares of Timir and Mukti over the suit property. His next contention is that the plea of res-judicata was taken for the first time by the learned First Appellate court when there was no such pleading by either of the parties and such plea taken in the appellate court for the first time and decision arrived at is definitely prejudicial to the plaintiffs-appellants.
4. Mr. M.Y. Eqbal appearing for and on behalf of the respondent (by filing caveat) have contended that none of the points as raised by Mr. N.K. Prasad, raise any substantial question of law which requires to be adjudicated in this second appeal. He has averted the submission of Mr. Prasad by submitting that the shares of Kirti, Sisir and Samir, even if being transferred by a de-facto guardian i.e. the second eldest brother Barid Baran Chatterjee, the said sale was ratified by the de jure guardians i.e. the mother and elder brother Bhawatosh, when they filed the written statement in the Partition Suit No. 99 of 1945 stating that the shares of these minors had been transferred validly to the predecessor of the defendants and accepted by the Trial Judge. Regarding the shares of Tamir and Mukti, it is submitted by him that they were represented by guardian admitted in the partition suit and it was contested by them in suit and in their presence, compromise was arrived at in the First Appeal and the decree was passed on the basis of compromise long ago in the year 1958 and these Timir and Mukti had obtained their majority long ago but within three years of their obtaining of majority or within 12 years as per Sections 64 and 65 of the Limitation Act, they have never raised any plea to the effect that their shares had never been affected by the partition decree passed in the First Appeal in the year 1958 and as such there is no scope of the minors even if the decree in partition suit was illegally obtained on compromise to revive their interest in the suit property and their interest in the suit property and their shares can not be said to be existing for every when the partition decree was not challenged within, the prescribed period of limitation.
5. On the point of res-judicata, it is the submission of Mr. Eqbal after referring to Privy Council decision and the Supreme Court decision that plea of res-judicata is not required to be taken specifically in the pleadings and if on the materials and facts it appears that such plea is required to be decided, the same can be decided by the appellate court on the materials on record and the same can not said to be prejudicial to either of the parties as this point of res-judicata is a legal plea touching the maintainability of the suit.
6. Mr. N.K. Prasad appearing for and on behalf of the appellants in support of his first contention regarding the shares of Kirti, Sisir and Samir has referred to the provision of Dayabhaga school under the Hindu law to the effect that if the shares of the minors are transferred by a de facto guardian then the said transfer is void and the same not being voidable one, it is not necessary that the minors should come up with a suit for declaration of the sale as void regarding their shares as is required in case of transfer by de jure and natural guardians within the prescribed period of limitation. Such transfer can be avoided by the minors on attainment of their majority by sale to other persons.
Mayne’s Hindu Law made following observations:
An improper alienation of property belonging to a Hindu minor by his de facto guardian can not be held to be binding on the minor until it is set aside although it may be voidable in the sense that he may elect either to ratify it or avoid it by treating it as nullity.
7. In 1983 Calcutta page 76 Hari Satya Banerjee and Ors. v. Mahadeo Banerjee and Ors. it has been held that in the case of transfer by the de facto guardian it is not necessary to have a judicial rescission of such a transfer because the authorized persons is not rendered valid except upon ratification. In that case, the sale was by a de facto guardian during the minority of the share holders under the Dayabhaga school of law. But soon after their attainment of majority i.e. within the three years of attainment of majority the minors had sold their shares to a third party and there was a suit between the purchaser on attainment of majority by the minors and the previous purchaser from de facto guardian and it was held that there was no necessity of judicial rescission as the minors opted not to ratify the sale by their de facto guardian and they could have sold their shares soon after their attainment of majority to a third party and the sale was decided, to be valid, The present case does not fit in with the circumstances of the reported case of Calcutta. In that case, the minors had opted not to ratify the sale soon after the attainment of majority and then sold it to a third party. But in the present case, the minors’ sale were ratified by de jure guardian by filing written statement in the subsequent partition suit and such ratification was accepted by the court as is clear from the decision of the Sub-Judge in that partition suit and the partition suit was decreed in favour of the purchasers holding that they have acquired the shares of those minors also. Mr. Prasad has submitted that filing of written statement ratifying the sale of the minors by de facto guardian and by the de jure guardian can not take away the minor’s share. But when a decree has been passed wherein virtually the sale of the minor’s share by the de facto guardian, was ratified then there is in scope of questioning the said ratification at this stage that too after long 40 years.
8. The same view of the Calcutta High Court was there in the decision of our High Court as reported in 1938 Patna page 337 Jagdamba Prasad talk and Anr. v. Anadi Nath Roy and Ors. It has been observed that a transaction which is voidable at the instance of the minor may be repudiated by any act or commission of the late minor, by which he intends to communicate the repudiation, or which has the effect of repudiating it and the same repudiation can be done without judicial rescission by merely transfer to a third party. In the present case, the decisions mentioned above of the Patna and Calcutta High Court are not tenable in the facts and circumstances of the case.
9. Regarding the shares of Timir and Mukti, I am not in a position to accept the submission of Mr. N.K. Prasad. It is true that there, was ‘observation by the Sub-Judge in partition suit regarding allotment of shares of these two minors at the time of actual partition, but it appears that such judgment of the Sub-Judge had merged into a compromise decree in the First Appellate Court while accepting the compromise between the parties. The fact remains that the shares of these two minors have been included within the compromise decree and that those minors being represented by GAL was there in the First Appellate Court also, no objections were raised and even after the partition decree was confirmed, for the long 24 years the minors remained silent. They had neither challenged the decree nor shown their intention of repudiating the decree by way of challenge in a court of law. Even if, it is construed that the compromise decree was illegally obtained including the shares of the minors then also until and unless that decree is set aside by a competent court, it can not be said that the minors’ share remained intact even after that decree too.
10. Lastly, a feeble submission has been made by Mr. N.K. Prasad to the effect-that the compromise decree is only a decree on the basis of agreement and such compromise decree can have no validity regarding inclusion of minors share in the decree itself when compromise agreement was never registered. This plea is not tenable as the decree of compromise was effected on the suit property itself and no outside property have been included within the compromise and as such question of registration of compromise/agreement does not arise at all. Moreover, as there were contrary judicial decisions regarding the validity or otherwise of the compromise decree, by the amendment of the Civil Procedure Code in the year 1976, a new provision has been included under Order XXIII, Rule 3-A to the effect that compromise decree is a valid decree and at par with that of the contested decree. On this proposition also the shares of Kirti, Sisir and Samir can not be said to be re-opened by the minors when the compromise decree was arrived at in the previous partition suit including the shares of minors of Chatterjee family. Thus, I do not find any force in the submission made by Mr. N.K. Prasad in respect of the shares of the minors being alive even after the partition decree rather the learned First Appellate Court was found to be proper and justified in accepting the legal position in dismissing the plaintiffs suit on that ground.
11. Regarding the plea of res judiciata The State of Punjab v. Bua Das Kaushal may be referred to wherein their lordships have held that there can not be a waiver of plea of res-judieata, such plea can not be said to be waived if necessary facts were present in the mind of the parties and gone into by court.
12. Similar is the view taken by the Supreme Court as Iftikhar Ahmed and Ors. v. Syed Meharban Ali and Ors. relying on the decisions of the Privy Council as reported in AIR 1950 PC page 17 : AIR 1916 PC page 78. Already the suit properties had been partitioned between the purchasers from all the heirs of Chatterjee family who were the original owners and when no share of the Chatterjee family have been left to be purchased by the plaintiff, they had no scope to come up in a partition suit on the basis of any share holders of Chatterjee family because the previous suit has been decreed in presence of all the members of the Chatterjee family and as such the previous decree in the partition suit although a compromise decree stands as res-judicata in the present suit. This point of res-judicata is intermingled question of facts and law when facts are admitted about the previous partition suit by both the parties and when these materials have been brought on record, then it was definitely known to the plaintiffs regarding this point of res judicata and if the same plea has not been specifically raised by the defendants, it can not be said that they have waived the same. They have raised the question of maintainability in their written statement and such question was also made an issue, which according to me, can cover this point of res judicata too.
13. Thus, I find that there is no material in this second appeal to be gone for adjudication on any substantial question of law and hence, this second appeal is rejected under Order II, Rule 11, C.P.C.