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R. Sami Naidu Vs. Katha Goundan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1940Mad522; (1940)1MLJ337
AppellantR. Sami Naidu
RespondentKatha Goundan and anr.
Excerpt:
- - 14 of 1931 against the plaintiff and another on the grounds of fraud and that he was a minor at the time of the plaint, as well as for other reasons, the plaintiff's uncle even saying that he had no knowledge of the suit at all. i feel no doubt at all that the learned district munsif was quite right in holding that there was no reliable evidence that the plaintiff was a minor at the time when the decree was passed; if the plaintiff was a major when the suit was filed, then clearly no other person had a right to file the suit on his behalf;.....the panchayat court. this one sentence given by a villager who must have had very vague notions of times aid years cannot be said to be evidence that a court could accept to discharge the burden lying upon the plaintiff. i feel no doubt at all that the learned district munsif was quite right in holding that there was no reliable evidence that the plaintiff was a minor at the time when the decree was passed; and it is surprising that the learned subordinate judge should, on such slender grounds, have seen fit to disagree with the trial court.4. if the plaintiff, was a major at the time of the passing of the decree, then a fortiori he was a major at the time of filing the present suit. the suit was presumably filed by the uncle in the name of his nephew for the purpose of making it appear.....
Judgment:

Horwill, J.

1. One Chinna Budha Goundan brought a suit purporting to be on behalf of his minor nephew Katha Goundan to set aside the decree of the Chinnasamudram Panchayat Court in Suit No. 14 of 1931 against the plaintiff and another on the grounds of fraud and that he was a minor at the time of the plaint, as well as for other reasons, the plaintiff's uncle even saying that he had no knowledge of the suit at all. No less than nine issues were framed, and the District Munsif of Tirupattur found that there were no grounds at all for setting aside the decree and that the plaintiff was a major at the time of the passing of the decree. He accordingly dismissed the suit. In appeal, the Subordinate Judge of Vellore held that the plaintiff was a minor at the time of the filing of the suit and that even if the finding of the District Munsif had been correct he ought to have given the nephew Katha Goundan an opportunity of continuing the suit in his own name.

2. On the question of minority, the plaintiff's uncle examined three witnesses. P.W. 1 said nothing at all about the plaintiffs' age. P.W. 2, Katha Goundan's grandfather, did nothing more than file a horoscope of another grandson by another daughter and say that the plaintiff was six months older than that grandson. The lower appellate Court relied on that horoscope; but as nobody was able to speak to the correctness of the horoscope, it was not proved and was of no value. P.W. 3 said nothing at all in examination-in-chief about the age of the plaintiff; but strangely enough he was questioned about the plaintiff's age in cross-examination. The answers to the questions in cross-examination afford the only evidence in this case in support of the plaintiff's claim that he was a minor. That answer was:

I have a son born in Dunmati year, 11 years ago. He is junior to the plaintiff by seven years.

3. Dunmati ran from about April, 1921, to March, 1922. If the plaintiff was born seven years before that he was born between April, 1914 and March, 1915. The date of the decree was September, 1931; so that if the evidence of P.W. 3 is strictly correct, the plaintiff was about 17 years of age when the decree was passed. There can be no doubt that the burden of proof with regard to minority or majority is definitely on the person who asserts it; and the plaintiff was bound to strictly prove that he was a minor at the time of the filing of the suit in the Panchayat Court. This one sentence given by a villager who must have had very vague notions of times aid years cannot be said to be evidence that a Court could accept to discharge the burden lying upon the plaintiff. I feel no doubt at all that the learned District Munsif was quite right in holding that there was no reliable evidence that the plaintiff was a minor at the time when the decree was passed; and it is surprising that the learned Subordinate judge should, on such slender grounds, have seen fit to disagree with the trial Court.

4. If the plaintiff, was a major at the time of the passing of the decree, then a fortiori he was a major at the time of filing the present suit. The suit was presumably filed by the uncle in the name of his nephew for the purpose of making it appear that Katha Goundan was very much a minor on the date of the decree of the Panchayat Court. If the plaintiff was a major when the suit was filed, then clearly no other person had a right to file the suit on his behalf; and the suit had therefore to be dismissed. Order 22, Rule 12, Civil Procedure Code, which presumably the learned Subordinate Judge had in mind, does not contemplate the giving of an opportunity to a person who is not on record to continue the suit. That rule applies to cases where a suit has been filed by a minor who becomes a major during the course of the trial. The suit was therefore rightly dismissed by the District Munsif.

5. The appeal is therefore allowed and the decree of the District Munsif restored. There will be no order as to costs in this Court or in the lower appellate Court.


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