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Kachayi Puthiapurayil Kunhi Kuttiali Haji and Vs. Udumpumthala Nalurapattil Kunhi Patha and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported in(1906)16MLJ14
AppellantKachayi Puthiapurayil Kunhi Kuttiali Haji and ;assanampurath Moideen Kutti and ors.
RespondentUdumpumthala Nalurapattil Kunhi Patha and ors.
Cases ReferredBrooke v. Lord Mostyn
Excerpt:
- - 4. we are of opinion that the plaintiffs on whom it lay affirmatively to make out that kutti ammad was a minor in january and august 1891 have failed to do so. 5. as to the next point, which we proceed to consider on the assumption that the district judge's opinion on the question just discussed is the better one, the case of the plaintiffs is still weaker. consequently, the plaintiffs would not have failed to get her to give evidence in their favour in regard to this matter if it had been possible......adopted two females kanhamma and beiyathumma. the former of these died leaving only a son kutti ammad. tne said beiyathumma having n,o issue adopted into the family, the first defendant - the daughterof a natural sister of hers and the first plaintiff, younger than the first defendant, the daughter of the first defendant's sister. the second and third plaintiffs are the minor children of the first defendant whose ages are stated to be 18 and 10 years respectively represented by their next friend, the natural brother of the first defendant. cutti ammad, who became the senior member of the tarwad after beiyathumma, died in september 1891. before his death he had executed three bonds, one for bs. 8,000 on the 28th january 1891 to one vythan kutti, another for rs. 4,000 on the 21st.....
Judgment:

1. The plaintiff and the 1st defendant are Maho-medans following the Marumakkatayam system of law in South Canara. Many years ago when their tarwad was about to become extinct; the then surviving male member Kunhammad adopted two females Kanhamma and Beiyathumma. The former of these died leaving only a son Kutti Ammad. Tne said Beiyathumma having n,o issue adopted into the family, the first defendant - the daughterof a natural sister of hers and the first plaintiff, younger than the first defendant, the daughter of the first defendant's sister. The second and third plaintiffs are the minor children of the first defendant whose ages are stated to be 18 and 10 years respectively represented by their next friend, the natural brother of the first defendant. Cutti Ammad, who became the senior member of the Tarwad after Beiyathumma, died in September 1891. Before his death he had executed three bonds, one for Bs. 8,000 on the 28th January 1891 to one Vythan Kutti, another for Rs. 4,000 on the 21st August 1891 to the 2nd defendant, and a third for Rs. 1,500 on the same day to the 4th defendant, the advances having been, according to the instruments, made for the necessities of the Tarwad. The third defendant who is the assignee of the bond in favour of Vythan Kutti instituted O.S. No. 28 of 1898 for the recovery of the amount due under the bond in the District Court of North Malabar, against the 1st defendant and the plaintiffs. The second defendant brought O.S. No. 41 of 1898 in the same Court for the recovery of the amount due under his bond, against the same parties. The fourth defendant instituted O.S. No. 365 of 1898 in the Court of the District Munsif of Cannanore for the recovery of the amount due to him, impleading the same persons as defendants. In those three suits, the present 1st defendant was appointed guardian ad litem of the present plaintiffs, her co-defendants. In all of them, decrees were passed in accordance with compromises entered into by the respective plaintiffs with the first defendant on her own behalf and on behalf of the present plaintiffs, leave to enter into the compromises having been previously obtained from the Courts. Applications for execution of the decrees by sale of tarwad properties of the plaintiffs and the first defendant were made and granted and properties were advertised for sale. But no sales took place, the same having been adjourned from time to time at the request of the judgment-debtors up to the beginning of the year 1901. On the fourth of March of that year the present suit was instituted for the purpose of removing the first defendant from her position as Karnavathi of the tarwad and restraining defendants Nos. 2 to 4 from selling any of the tarwad properties in execution of their decrees. The District Judge granted decree to the plaintiffs as prayed for. The first defendant has acquiesced in the decree. The present appeals are by the second, third and fourth defendants only.

2. The decision of the District Judge against the appellants is upon the ground that Kutti Ammad was a minor on the dates on which the three bonds referred to were executed and that the first defendant though fully aware of the fact of Kutti Ammad's minority at the time of the execution of those bonds, wilfully refrained from setting up that point in defence in the suits brought by the appellants and in collusion with them entered into the compromises, upon which the decrees were passed. After careful consideration we are unable to accept the conclusions of the District Judge.

3. Their Lordships then proceeded to discuss the evidence on the points: - Ed.

4. We are of opinion that the plaintiffs on whom it lay affirmatively to make out that Kutti Ammad was a minor in January and August 1891 have failed to do so.

5. As to the next point, which we proceed to consider on the assumption that the District Judge's opinion on the question just discussed is the better one, the case of the plaintiffs is still weaker. The first defendant as junior in age to Kutti Ammad was necessarily dependant for information on others as to his age. There is not an iota of evidence in the case that when it devolved on her to undertake the management of the tarwad property as Karnavathi in succession to Kutti Ammad she had been told by anybody or was otherwise aware that his representations in the matter were incorrect or false. There is not the slightest doubt that she is acting in collusion with the plaintiffs in the present suit which is financed by her own riatural brother. Consequently, the plaintiffs would not have failed to get her to give evidence in their favour in regard to this matter if it had been possible. The conclusion, therefore, cannot be avoided that the suggestion, that she purposely omitted to contest the suits brought by the appellants by setting up Kutti Ammad's minority, is entirely unfounded, Surety it is difficult to see what could possibly have operated on her so to act to her own prejudice and to the prejudice of her children, the 2nd and 3rd plaintiffs.

6. In the view we take of the grounds on which the decision of the District Judge rests, it follows that the decree made by him against the appellants could not stand unless a different result must ensue with reference to the objection urged by Mr. Richmond that the present plaintiffs are not bound by the compromise decrees as their guardian ad litem was at the time a married woman. That she was a married woman is, we think, true. How nevertheless she came to be appointed as guardian ad litem does not appear. Most probably, her status as a married woman was treated as immaterial on account of the fact that she was the undoubted head of the Tarwad and as such entitled to represent all the members thereof in spite of her marriage. Or, it may be, that her married state was overlooked because of the non-recognition of marriage as a legal institution in the case of the large majority of persons following the Marumakkattayam system of law. However this may be, the appointment of the first defendant as guardian ad litem of her co-defendants, the present plaintiffs, was doubtless a departure from the provisions of the Civil Procedure Code on the point. The objection to a married woman being appointed guardian ad litem in England owes its origin chiefly to the incompetence of a married woman to sue and be sued and to be answerable for costs. See in re Duke of Somerset Thynne v. St. Maur (1887) L.R. 34 Ch. D. 465. And though the objection finds a place in our Code of Procedure it, is to be noted that the draft Code now before the Legislative Council proposes to modify the law by removing such disability on the part of married women in this country. (Select Committee's Report, Clause 445). It may be added that the disability in question exists here only in respect of a married woman's appointment as guardian ad litem, and not in respect of her acting as next friend as is the case in England. The appointment of the first defendant must, therefore, be held to be a mere irregularity, Cf. Mussummat Bibi Walian v. Banke Behari Pershad Singh which did not prejudice and could not have prejudiced the plaintiffs in the slightest degree. That the compromises affected the first defendant as much as they did the plaintiffs is a circumstance pointing to their having been come to bona fide. Further, the terms thereof were arrived at with the assistance of third persons who befriended both sets of parties and apparently through their mediation the appellants consented to make considerable reductions in the amounts claimed by them according to the terms of their bonds. And lastly, the leave of the Court was duly obtained in the case of each compromise. Now it is clear law that a compromise sanctioned by court on the part of an infant cannot be set aside by him on any ground which would be insufficient to set aside a compromise between persons sui juris. Brooke v. Lord Mostyn (1864) 2 De. Gex. Jones & Smith page 373 at p. 416. The reversal by the House of Lords of the decision of the Lords Justices in that case was on the facts and did not touch the statement of the law to the above effect by Lord Justice Turner, see L.R. 4 H. 304. Though there is a vague statement in the plaint that the first defendant acted in collusion with the appellants in obtaining the decrees in question, no specific ground or grounds which would invalidate the leave granted by the Courts and avoid the decrees made in pursuance of such leave, are alleged and none proved. How then can the appellants be restrained from executing the decrees against the tarwad properties?

7. For all the foregoing reasons, we allow the appeals and modify the decree of the District Judge by dismissing the suit in so far as the appellants are concerned with costs in this and in the lower Court.


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