1. This is a suit arising out of a mortgage effected on the 15th April 1896 on the Gundepalli Estate. The suit on the mortgage itself was numbered as O.S. No. 25 of 1910, and will be referred to in this judgment by that designation. We are also concerned with a later mortgage but an earlier suit (O.S. No. 21 of 1910) relating to the same property. The plaintiff in this suit and the defendants 1, 2 and 3 belong to the same family i. e., the family originally owning the Gundepalli estate. 5th defendant is the decree-holder both in O.S. No. 25 of 1910 and O.S. 21 of 1910. 6th defendant is alleged to be the stranger auction-purchaser of the mortgaged property in O.S. No. 25 of 1910. So, as matters stand at present, as to 25 of 1910, 6th defendant is the purchaser from the decree-holder, 5th defendant; in O.S. No. 21 of 1910 5th defendant has obtained a decree but the properties remained unsold. The suit from which this appeal arises is O.S. No. 11 of 1916 in the Temporary Subordinate judge's Court of Rajahmundry in which the plaintiff, the son of the 1st defendant, claims a declaration that the auction sale of the Gundepalli estate in O.S. No. 25 of 1910 and all execution proceedings relating thereto are null and void as against him and also to declare the decrees in O.S. Nos. 21 of 1910 and 24 of 1910 (we are not concerned in this appeal with the latter) are not valid and binding against him and his share. As originally framed the suit was based for the most part on immoral consideration for the mortgages. This was found against in both the lower courts and has now been given up before us.
2. Three points are urged in Second Appeal
(1.) That the plaintiff who was a minor in 1910 was not properly represented in O.S. No. 25 of 1910:
(2.) That the guardian ad litem was guilty of negligence in that the following valid defences were not set up on behalf of the minor:
(a) That the mortgage was not valid as not having been legally registered;
(b) That the Court had no jurisdiction under the circumstances to pass the mortgage decree;
(3.) That an amendment should have been allowed to repudiate the 6th defendant's plea that he is a bona fide purchaser for value without notice.
(1) The point of representation in O.S. No. 25 of 1910: The plaintiff who was in that suit the 3rd defendant was at first sued along with his father and guardian the 1st defendant. The father was apparently unwilling to act, and the Court clerk C. Gopala Rao, was appointed guardian on the 21st February 1911. He was appointed on an affidavit sworn by one Sangavarapu Venkataratnam who said he had been conducting the suits and all other affairs of the plaintiff as his 'Tanedar' or Manager: ' I believe there are no other principal guardians for the said minor defendant.' It is, therefore, necessary that the appeal Clerk of this Court, Mr. C. Gopala Rao should be appointed guardian of the said minor 3rd defendant. The appeal Clerk was appointed as stated. The guardian on 30--11--1911 filed a Memorandum asking that it should be recorded that he had no instructions whatever on behalf of the minor 3rd defendant. However, on the 25th November 1911 the guardian put the plaintiff to proof of the claim. The Vakils for defendants 1, 2 and 4 said that they had no instructions. 5th defendant was absent and the result was a decree for plaintiff for Rs. 82,000 odd with costs. It is contended on this state of things that the affidavit of Venkataratnam was clearly false as the minor was living with his uncle at the time and also had a mother alive. Reliance is placed on the deposition of D. W. 2 in the suit. His name is Kapilavaya Padmanabha Swami. He says he was managing 5th defendant's affairs, that he had known the uncle of the minor for some time and the father of the minor for 25 years arid knew the existence of the plaintiff's mother. The point to be borne in mind is that this witness, D. W. 2 is a different person from the Tanedar who swore the affidavit that no other principal guardian was available. In the guardian's evidence as D. W. 2 in the O.S. he states that the father refused to be guardian and did not appear in response to notice. He did not try to get any information from anybody else, but sent a notice to the father, but it was not served. He did not apply for copies of the documents, etc., as he was not put in funds by anybody. It is pointed out that under Rule 118 of the Civil Rules of Practice, the Court might have ordered the plaintiff to provide funds for the guardian to carry on the defence of the minor. This however was not done. Reliance is placed on Ramanunni Kurup v. Raman Somayajipad 32 MLT 107 where the affidavit filed stated that besides the second defendant the plaintiff had no next of kin. The statement was false as there was at least one person Known to the 1st defendant and his brother who was the plaintiff's next of kin. Yet this information was suppressed. I find it extremely difficult to say that because P. W. 2 knew the mother and the uncle of the present plaintiff it must be held that the plaintiff in O.S. No. 25 of 1910 and his Tanedar who swore the affidavit must have had the same knowledge. It is nowhere alleged that either of these persons had such knowledge, and I am quite unable to see how under these circumstances it can be said to have been proved that the affidavit of Venkataratnam must have been false to his knowledge. It may here be pointed out that it is not as if the appointment of a Court guardian was prima facie illegal. Order 32, Rule 4 (4) authorises the Court to appoint any of its officers as guardian where there is no other person fit and willing to act as guardian for the suit. Neither the mother nor the uncle came forward on behalf of the minor and it is to my mind impossible to say that either the plaintiff in O.S. 25 of 1910 or the Court had reason to believe that there was any other person fit and willing to act. In Nachiappa Chetty v. Chinniah Amabalam (1916) 4 LW 362, Mr. Justice Srinivasa Aiyangar sitting alone, laid down that in the case of a contemplated appointment of a Court guardian notice must always go to the natural guardian (as it did in this case according to P. W .2) or the person with whom he lives. It is not brought to our notice that the Court guardian knew that the minor was in 1910 living with his uncle. Another case relied on is Bhagwan Dayal v. Param Sukh Das ILR (1915) A 179, which to my mind is a much stronger case than this because the uncle who was originally named as a guardian ad litem in refusing to act said that the minors lived with their mother. No notice was served upon the mother and a Court guardian was appointed. The judgment seems to have relied largely on the fact that there was a decree without notice to the minors. This, as pointed out is not now necessary. [See Ramaswami Chetti v. Doraiswami : AIR1923Mad465 . As pointed out there, the absence of notice to the father of the appointment of the Head Clerk was only an irregularity which would not affect the validity of the proceedings in the absence of fraud or gross negligence on the part of the person appointed. (See page 302). The case cited in Rashid-un-nissa v. Muhammad Ismail Khan 19 MLJ 631 (PC) was a case where minors were held not to have been represented at all, one being represented by a married woman, which was illegal and the other being represented by a person whose interest was manifestly adverse to that of the minor. in M aruthamalai, v. Palani ILR (1912) M 535, the plaintiff asked that the father should be appointed guardian ad litem. He refused. The Head Clerk was thereupon appointed. The fraud charged was that the plaintiff knew very well that the minor was living with his mother under the protection of his maternal grandfather and the latter ought to have been appointed guardian. The learned Judges held that the statement in the affidavit amounted to no more than that in the view of the deponent there was no fit and proper person to be appointed. They point out that the Court may have been under the duty of making further enquiry before acting on the affidavit, but that the appointment was the result of a judicial order based on evidence which the Court considered sufficient. It was not alleged that there was any collusion between the Head Clerk and the plaintiff in pursuance of which the latter applied for the appointment of that officer as guardian. Nor is there any proof of any such collusion here. In Ramaswami Chetti v. Perumal : AIR1923Mad465 , the case already referred to, it was held that the plaintiff was not bound to make exhaustive enquiries. The learned Judges say at page 301 : Putting a reasonable construction on the rule we are not prepared to say that the plaintiff in this case failed in his duty, especially as there is nothing (so far as we have been shown) regarding the uncle of the minors, his residence, the plaintiff's knowledge of his existence, his interest in the minors' affairs or what is more important regarding any subsequent attempt by him to protect their interest. ' In Walian v. Banke Behari Pershad Singh LR 30 IA 182 (PC), their Lordships held that although there was no formal order appointing a guardian ad litem and no notice to the mother who was so appointed or to an adult male member of their family, these facts were nothing but irregularities which did not affect the validity of the proceedings. On this state of the authorities I am of opinion that the appellant has not succeeded in making out a case of non-representation in Suit No. 25 of 1910. Assuming that the same state of things prevailed in Suit No. 21 of 1910, as to which I am not quite certain for reasons to be stated later on, the same argument applies there also.
Point 2: The case relied on with regard to the negligence of the guardian generally in this case is Punnayyah v. Viranna 42 MLJ 429, where it was held that it was gross negligence not to defend the suit if there was a valid defence available. In that case the mortgage was by a guardian of the immoveable property of a minor for the purpose of lending money to another for carrying on a trade not ancestral on behalf of the minor. It was held that the guardian ad litem ought to have resisted the suit brought on the transaction on the ground that it was not for the minor's benefit. Ought the guardian ad litem to have set up either of the suggested defences in this case; and could he have hoped to succeed if he had done so? To consider the point of registration first:
The mortgage, Ex. IX, comprises the whole of the estate or Gundepalli in the sub-district of Yernagudem, Yernagudem Taluq, Godavari District to which is added one acre of wet land en the eastern side in Jiroyiti No. 458 in the village of Katrenikona in the Sub-district of Mummudivarem, Godavari District. The mortgage was registered in the Sub-District of Mummidivaram in which the one acre was situated. It is alleged that this latter was included in the mortgage for the very purpose of its being registrable in this Sub-Registry and this is very likely the fact. It turns out that the mortgagor though he owns something like 300 acres in Katrenikona does not own No. 458 and never did. It is therefore said that the whole mortgage is invalid as the mortgagor had no title to this Mummidivaram one acre of land. The allegation contained in para. 12 of the plaint is that the mortgagor had no interest in the said one acre, which was known to all the parties to the mortgage at the time of the registration to which the defendants 6 to 10 reply in paragraph 13 of their written statement that the one acre belongs to the mortgagors and that it was intended to be mortgaged and was not illegally included. For this part of the case, the appellant relies on Harendra Lal Roy v. Haridasi Debt 27 MLJ 80 (PC). That was a well known case of an attempt to mortgage a property absolutely non-existent, there being no such house as 25, Guru Das Street. Their Lordships held that ' that parcel was in fact a fictitious entry and represented no property that the mortgagor possessed or intended to mortgage, or that the mortgagee intended to form part of his security. ' In this case the evidence is that the mortgagor himself verbally mentioned this one acre when the mortgage deed was being drawn up and that as a matter of fact it is a mistake for 548 which admittedly belongs to the family of the defendants 1 and 2 in Suit No. 25 of 1910. The cases on this subject show that in order to nullify a registration on this ground the parties must have colluded. If the cases support this view as I shall show presently, it must be said that there is no evidence whatever to show that the mortgagee knew that the mortgagor possessed no such land as No. 458. Pahladi Lal v. Musammat Laraiti ILR (1918) A 22 lays down, following the Privy Council case in Harendra Lal Roy v. Haridasi Debt 27 MLJ 80 (PC) : 'It is really a question of fact whether the parties have intentionally by a Mutual collusive arrangement inserted in the deed property which either does not in fact exist or which while in existence is not intended by either of the parties to the suit to be a part of the security. ' A Bench of the Patna High Court in Ramedi v. Chunder Bali Bibi (1917) 44 IC 399, have come to a similar conclusion: 'If there is no collusion, the circumstances are not sufficient to invalidate registration. ' In a recent case in Biswanatha Prasad v. Chandra Narayan Chowdhury 63 IC 770 (PC), the defendant asserted that the statement in the bond that it comprised a certain share in property was to the knowledge of both parties, a mere fiction introduced for the purpose of getting registration in the Mozufferpore District. There it was held that ' none of the parties ever intended that the share should vest in Udit, or pass by the mortgage from him to the mortgagee. This case differs toto coelo from the case suggested in argument of a mere failure to make a good title to property dealt with by the instrument, and which both parties had intended should form part of the security. ' It appears to me that in the absence of evidence of participation by the mortgagee either as regards the insertion of the item in the deed or of intention that the one acre should not form part of the security this point must be decided against the appellant. It was contended that the ground of mistake was not open to the defendant here as the only plea raised by the pleadings was with regard to title. It does not matter whether No. 458 was in fact a mistake for No. 548, since, as pointed out above, unless it can be proved that the mortgagee was a party to the fraud (putting it at the highest) it cannot affect the validity of the registration. It is therefore clear that with regard to registration no valid defence was open to the Court guardian which he could have set up in favour of the minor.
(b) It was faintly argued that there was no jurisdiction in the Sub-Court to pass the decree or order for sale, as Ex. IX was not validly registered, and that the Court that had territorial jurisdiction over the Gundepalli Estate was the Ellore Sub-Court and not the Godavari District Court. This can be shortly disposed of by reference to Section 21 of the Civil Procedure Code which shows that it is too late to take this objection in Second Appeal.
Point 3. When the appeal first came before the District judge, Mr. Fernandez, that learned Judge remitted certain issues to the lower Court for findings and ' such other issues as the Court may deem it necessary to frame after hearing the parties again. ' We are only concerned with the first, which was settled before the vacation, viz., ' Whether the 6th defendant is a stranger bona fide purchaser for value of the Gundepalli Estate in execution of the decree in O.S. No. 25 of 1910 on the file of this Court and such purchase of his is valid against the plaintiff in spite of any defects of the kind alleged attaching to the suit and execution proceedings which culminated in that purchase? ' The vacation then supervened and when the appeal came on for hearing again after the re-opening of the Court this issue was modified after hearing Counsel on both sides as follows: 'In spite of any defects of the kind alleged in the plaint as attaching to the suit in which that decree was passed. ' There is thus a distinct omission in the new issue as finally settled to be remitted to the lower Court of any defects attaching in execution proceedings. The appellant wishes us to revise that amended issue and restore the issue as originally framed as he desires to be heard to say that it was only in execution proceedings when Ex. XX was produced (i. e. the sale certificate under Order 21, Rule 94, C.P.C.) that he learnt that he was described therein as being still a minor and still represented by the Court guardian. The Sub-Court on the amended issue went into the various grounds which were alleged against the bona fides of the purchase of the 6th defendant and found that the 6th defendant was a stranger purchaser for value but that he was not a bona fide purchaser, in that he was either aware or presumed to have been aware that the plaintiff was a major at the auction though not by reason of his knowledge of defects in the decree itself. As the learned Judge, Mr. Thiyagaraja Aiyar, justly observes ' the lower Court was wrong in having gone into this question as the lower Court after hearing both sides clearly intended to limit the enquiry to the defects of the kind alleged in the plaint and not to extend it to an irregularity in the execution proceedings of which there is absolutely no allegation in the plaint.' I entirely agree with his view. Mr. N. S. Narasimhachari who argued this part of the appeal frankly admitted that what he was asking for was really an amendment of the plaint at this stage. In this view it is not necessary and in fact it is impossible to come to any conclusion as to whether the plaintiff who became a major in 1913, the sale being in 1915, was not actually aware of what was going on. The matter was carefully gone into by Mr. Fernandez, and the question of defects in execution proceedings was expressly eliminated by him after hearing both sides. Speaking for myself I am entirely opposed to reopen this question in Second Appeal by allowing the appellant to amend the plaint in a suit of 1916. I would therefore find the third point also against the appellant.
3. I have assumed throughout, as stated above, that the suit 21 of 1910 is governed by the same consideration as 25 of 1910. As Mr. A. Krishnaswami Iyer for the 5th respondent (5th defendant) points out with regard to the mortgage involved in the former suit the question of the invalidity of the registration does not arise, so that no defence was available as to this. He contends that according to the plaint only immoral debts incurred by the 1st defendant is pleaded and this has gone. This is not perfectly clear although I am disposed to think that the learned Vakil's view is right. But if in 21 of 1910 the question of representation is involved, then in my view it stands in exactly the same position as the question dealt with above with regard to 25 of 1910.
4. In my view the Second Appeal fails and must be dismissed with costs, two sets (5th respondent one set and 7th and 10th respondents one set).
5. On the point of partition of the other properties not subject to these alienations which was raised by Mr. Anantakrishna Iyer alone, I agree with the order proposed by my learned brother.
6. The suit was for partition and incidentally for declaration of invalidity of the decrees in O.S. Nos. 25 of 1910, 24 of 1910, and 21 of 1910, on the file of the District Court of Godavari. In this appeal we are not concerned with the decree in O.S. No. 24 of 1910.
7. In the plaint, it is not alleged that plaintiff was not properly represented in O.S. No. 21 of 1910 and it has been suggested on behalf of the respondents that the reason is that the defence as to defective registration was not available in that suit. However that may be, I am satisfied that the plaintiff was properly represented in both the suits. The contention is that the Court guardian was appointed by reason of a false affidavit; and further that there was gross negligence on his part because he did not in O.S. No. 25 of 1910 set up the defence that the mortgage deed was invalid on account of defective registration. I do not think it can be said that there was a false affidavit. It v. as stated therein ' I believe there are no other principal guardians for the same minor defendant. ' It is not clear what exactly is meant by ' principal guardians ' but very likely it means nothing more than ' fit and proper guardians '. The minor was living at the time with his uncle and there was also his mother. But the mother and uncle made no attempt to intervene at any time on the minor's behalf and never showed any interest. There is no allegation of collusion between the plaintiff and the Court guardian. The facts of the case are similar to those in Maruthamalai v. Palani ILR (1912) M 535, where the propriety of the appointment of the Court officer as guardian-ad-litem was upheld. The case in Ramanunni Kurup v. Raman Somayajipad (1923) 32 MLT 107, (relied on by the appellant) was a case in which there was a deliberate misstatement of fact in the affidavit.
8. The plaintiff therefore was properly represented in both suits O.S. Nos. 25 of 1910, and 21 of 1910. With regard to the suit O.S. No. 25 of 1910, it has to be considered whether there was a valid defence for the minor and the guardian was therefore guilty of gross negligence in not raising it. My learned brother has dealt with this point in full and I agree with him. The finding of the District Judge is that there was no collusion between the mortgagee and the mortgagors and there was no intention on the part of the mortgagee to include a land not belonging to the mortgagors. This being so, the registration is not vitiated. This defence was not open to the minor and there was no negligence on the part of the Court guardian.
9. The decrees in question are binding on the plaintiff. It is however contended that the plaintiff became a major while execution proceedings were in progress but was still treated as a minor, and therefore the purchase by 6th defendant is invalid, This is a contention not raised in the plaint and cannot be entertained now. I should mention that this point was only raised by way of answer to the 6th defendant's contention that he was any how a bona fide purchaser. That question does not arise in view of our finding that the decrees are not liable to be set aside.
10. I agree that so far as the main contentions of the appeal are concerned the appeal must be dismissed with costs. It is however contended that in any event decree for partition must be passed with regard to properties that have not been alienated. With regard to this I find that the Subordinate Judge in para. 30 of his judgment states ' no decree can be passed as the plaint has not been properly stamped, and there is no evidence to show what the stamp required is. It is not known which properties have been sold and what properties have not been sold. The plaintiff cannot get a decree. The suit is dismissed.' In the ground of appeal to the District Court this point was taken; but I cannot find that the District Judge has anywhere dealt with it except that in the original judgment framing issues and calling for finding it is stated in para. 3 that the contesting respondents did not press the objection that the Court fee paid was insufficient; and finally in para. 28 of the judgment of Mr. Thiyagaraja Iyer, it is stated that ' no other question was urged at the hearing of the appeal.' It is probable that he meant that no other question relating to the substantial contested matters was urged. In fact the prayer in the plaint for partition seems to have been lost sight of by everybody, 1 here appears to be no contest so far as the partition of properties not alienated is concerned; and no objection has been raised before us. I would therefore send back the suit to the Original Court with instructions to take it on file again and after the enquiry to decide the claim in para. 21 Clause 3 of the plaint so far as it relates to the partition of properties other than those that have been alienated. The appeal as against the contesting respondents must be dismissed with costs. I agree with the order of my learned brother as to costs.