V. Sethuraman, J.
1. These two appeals arise out of some common facts. However, we would first consider the Letters Patent Appeal before we go into the O.S.A.
2. This appeal has been filed by one Thanga-velu, who was the plaintiff in O.S. No. 5265 of 1967. The relevant facts which gave rise to this appeal are as follows:
3. There was one Munuswamy Naicker, who had a wife by name Kuppammal. Under Exhibit A-1, dated 16th October, 1902, the suit property was purchased in the name of Kuppammal. Munuswamy Naicker left a will dated 25th January, 1922, the photostat copy of which has been marked as Exhibit A-3. In that will Munuswamy treated the property purchased in the name of the said Kuppammal as his property and made dispositions accordingly. They had a daughter by name Vaduvambal, who was married to one Velu Naicker. At the time of the will, Vaduvambal, her husband and her children were living with him. Vaduvambal had three sons and a daughter by name Dhanalakshmi, the daughter being the eldest who was aged about 11 years, The three sons were Balakrishna, Gnanasundaram and Marimuthu, who were aged 8, 5 and 3, respectively. In respect of the suit property the will provided for the enjoyment of the income by Kuppammal for her life without power of alienations of any kind and after her death the property was to be enjoyed by Dhanalakshmi, the first defendant, for her life also without power of alienation of any kind. On her death, the male children of the first defendant were to take the property absolutely. In the event of the first defendant not having any male child, the property was to be taken by the three grandsons, Balakrishna, Gnanasundaram and Marimuthu. There was a further clause in the will that if, at the time of the testator's grandsons taking the property on the terms above mentioned, all or any of them were minors, then the daughter, Vaduvambal, and her husband Velu Naicker were to be the executors of the estate for managing the property during such minority. The property was to be handed over to the grand-child or grandchildren when he or they attained majority.
4. On 16th February, 1924, Munuswamy died, the said Vaduvambal and Velu Naicker describing themselves as the executrix and executor of the will obtained probate of the will from this Court in T.O.S No. 9 of 1925.
5. On 16th October, 1933, Kuppammal, acting for herself and probably as the guardian of the three minor grandsons, Balakrishna, Gnanasekaran and Marimuthu, executed a mortgage over the suit property and obtained a loan of Rs. 1,100 from one Vridambal. The document itself is not before us. To the said mortgage Dhanalakshmi, the first defendant, was not a party. Kuppammal passed away some time thereafter and there was a second mortgage on 17th February, 1936, by Balakrishna, Somasundaram and Marimuthu in favour of the same mortgagee but of different properties for a sum of Rs. 1,500. Thus, at the time of the first mortgage in 1933, Balakrishna, Gnanasundaram and Marimuthu would have been aged 19, 16 and 14, respectively. In view of the fact that there was a testamentary guardian appointed for them, the age of majority would be 21 years instead of 18 years. Thus, Balakrishna, Gnanasundaram and Marimuthu would all be minors at the time of the first mortgage. At the time of the second mortgage, Balakrishna had attained majority, while the other two continued to be minors and Balakrishna had purported to act as their guardian in executing the mortgage.
6. The mortgagee, Vridambal died in the, meanwhile, and her husband Narayanaswamy Mudaliar as her heir, filed O.S. No. 46 of 1943 in the Sub-Court, Chengalpattu on 28th February, 1943. There was a preliminary decree in this suit as against Balakrishna and his two brothers, on 12th February, 1944, for a sum of Rs. 5,875. It may be relevant to state at this stage that though the two mortgages were not by exactly the same persons and covered different properties they were combined in one suit. Munuswamy had other properties in which he gave a life interest to his wife and an absolute interest in favour of Balakrishna, Gnanasundaram and1 Marimuthu and other male children that may be born to Vaduvambal equally and it is those properties which featured in the mortgage of 1936. There was a final decree on 9th July, 1947. There was an assignment of this decree oh 27th November, 1948, in favour of the plaintiff, Thangavelu and his wife. As transferees, they applied for being reoognised as the asisgnees of the decree so that they could execute it. The said petition was ordered on 24th February, 1949 (Exhibit A-5). In pursuance of the execution proceedings, there was a sale of the property in favour of the plaintiff on 2nd March, 1959, he having been permitted to bid at the auction. There was a confirmation of the sale on 14th September, 1949 under Exhibit A-8. In Exhibit A-8, the sale was described as being subject to the life interest in favour of Dhanalakshmi, the first defendant, with a vested remainder in favour of Gnanasundaram and Marimuthu. By the time of Exhibits A-5 and A-6, Balakrishna had died. Exhibit A-9, dated 29th December, 1948, is a certified copy of delivery of possession warrant in E.P. No. 125 of 1947 on the file of the Sub-Court, Chingalpattu. In the endorsement by the bailiff it was stated that there were four huts erected on the land and occupied by four third parties, who were informed of the contents of the warrant and who were asked to vacate. They refused stating that they had constructed the huts and were paying ground rents to the defendants. Hence, the bailiff put the auction-purchaser in possession of the property consisting of 21 cocoa-nut trees, and as the obstructors refused to vacate and give possession, actual possession was not given for want of Court order for removing the obstructors from the land and demolition of the huts erected on the land. There was also an endorsement by the plaintiff, Thangavelu, on the delivery akfhakshi stating that the bailiff put him in vacant possession only of the property consisting of 21 cocoanut trees but possession of the plot in which the huts were erected was not given for want of Court order for removing obstruction; and for demolishing the huts.
7. Gnanasundaram filed an appeal C.M.A. No. 151 of 1949 against the order under Exhibit A-5 recognising the plaintiff and his wife as the assignees of the decree. This appeal was dismissed on 14th August, 1950.
8. In T.O.S. No. 9 of 1925 on the Original Side of this Court, there was an application by the executors under Section 302 of the Indian Succession Act for directions regarding the sale of the suit property in favour of Dhanalakshmi on 30th June, 1952. There, was consent by Dhanalakshmi and her two brothers Gnanasundaram and Marimuthu.
It was stated in the said application that there was an equitable mortgage in favour of Dhanalakshmi for a sum of Rs. 6,000 obtained by the executors and that the amount due to her with interest would come to Rs. 20,000. In the application, it was stated that the legatee Dhanalakshmi attained majority in 1931 and her brothers, Balakrishna, Gnanasundaram and Marimuthu attained majority in 1934, 1938 and 1941, respectively. It was also stated that the legacies in favour of any of the legatees could not be assented to as immediately after the testator's death, the estate was involved in protracted and costly litigations at the instance of the reversioners, creditors and other persons and that the executors were unable to state whether they had seen the last of them. They added that except the debt due to Dhanalakshmi, the claims of all other creditors and decree-holders, had become barred by limitation, and as they (the applicants) had become old, they were anxious to complete the administration which had been pending all these years owing to the protracted Court proceedings, which had practically denuded the estate. Out of the creditors, Dhanalakshmi was said to have been the most indulgent, in that she filed no suit for the recovery of the amounts due to her on the equitable mortgage in the year 1933 granted by the executor and the executrix in due course of administration to secure a sum of Rs. 6,000. It was also stated that the said sum of Rs, 6,000 had been advanced by her by the sale or Stridhanam jewellery and the interest accruing thereon. The amounts were said to have been borrowed and utilised for payment of dues to the Collector and also to meet costs of legal proceedings. It was also stated that Dhanalakshmi made a proposal to the plaintiffs that the two items of properties bequeathed to her under the will and two other items described as items 2 and 3 to the schedule to the will might be sold to her absolutely and in part satisfaction of her mortgage debt and that the executors had agreed to the said proposal1. They also stated that they had passed a writing in her favour in the nature of a family settlement promising to execute and register any deed she might require in respect of the same. As Dhanalakshmi was pressing for the execution of the sale deed in her favour covering the items already agreed to be sold to her, they applied to the Court for sanction.
This application was ordered on 1st July, 1952, by Chandra Reddi, J., as he then was, and permission to sell the property to Dhanalakshmi or to her nominee was granted. Pursuant to this order the property was sold in favour of the second defendant by name T.C.A. Ananthalwar, who was the second defendant in the suit and who was a practising Advocate of this Court as the nominee of Dhanalakshmi. It is stated that the second defendant was the counsel for Narayanaswami Mudaliar, the plaintiff in O.S. No. 46 of 1943 on the file of the Sub-Court, Chingalpattu and that he had also appeared for the executors in Application No. 2016 of 1952 in T.O.S. No. 9 of 1925 for sanction of the sale. The conveyance in his favour was said to be towards his professional fees.
9. The second defendant, Ananthalwar had entered into an agreement with one Ralasubramania Mudaliar for the sale of this very property sometime in 1960. On 12th Decem ber, 1960, the plaintiff, Thangavelu, gave a notice to the said Ananthalwar calling upon him to acknowledge the plaintiff's title to the said property as the auction-purchaser in execution of the decree in O.S. No. 46 of 1943. A copy of the notice was also sent to Balasubramania Mudaliar, the person with whom Ananthalwar had entered into an agreement. This was followed by another notice on 20th January, 1961, threatening Ananthal war with proceedings for professional mis conduct. Balasubramania withdrew from the agreement and filed O.S. No. 3403 of 1962 in the City Civil Court, Madras, to recover the advance paid by him to Ananthalwar for getting a conveyance of the said property. Ananithaliwar consented to pay the amount back to him. On 6th December, 1962, under Exhibit A-26, Ananthalwar sold the property to the first defendant and on 10th March, 1967, the first defendant, Dhanalakshmi, sold the property to the third defendant, a stranger. There was a notice through a lawyer by the plaintiff to the third defendant stating that his purchase under Exhibit A-27 was illegal and invalid and would not be binding on the plain tiff. The present suit came to be filed in 1967.
10. In the plaint it was stated that the plain tiff had purchased the suit property under the Court auction, that Marimuthu, who was the third defendant in O.S. No. 46 of 1943, instituted O.P. No. 170 of 1952 in the some Sub-Court seeking to set aside the sale in favour of the plaintiff, that it was dismissed and that the matter was taken on appeal in C.M.A. No. 145 of 1953 to the High Court, which was also dismissed on 17th August, 1955. It was contended that by these proceedings, the title of the plaintiff to the property had been confirmed by competent Courts. The first defendant, Dhanalakshmi had allowed the taxes due to the Corporation to remain in arrears and the Corporation filed O. Section Nos. 960 of 1957 and 1429 of 1960 in the City Civil Court, Madras, for arrears of taxes due to them. Reference was made to the proceedings in Application No. 2016 of 1952 in T.O.S. No. 9 of 1925 for the sale of the property and it was contended that the sale in favour of the second defendant on 2nd July, 1952, was invalid, illegal, void and not binding on the plaintiff, as the entire proceedings were without notice to him. After referring to the notices issued to the second defendant, it was stated that the defendants had colluded and with a view to defraud the plaintiff, they had fraudulently brought about the sales by which he was not bound. The suit was, therefore, filed for a declaration of the plaintiff's title to the suit property and for a permanent injunction restraining the defendants from interfering or dealing with the said property.
11. The second defendant was struck off from the suit, apparently because he had parted with the property and was no longer interested in it. The main written statement was filed by the third defendant, who elaborately set out the facts and stated that he was a bona fide purchaser for value and that he had valid title to the suit property. The first defendant in her separate written statement supported his stand.
12. The learned trial Judge by his judgment and decree, dated 20th January, 1970, came to the conclusion that the two mortgages executed by Kuppammal and her three grandsons were not valid and that the plaintiff had not acquired any title to the suit property. He came to the further conclusion that by virtue of the order of the Court in Application No. 2016 of 1952, dated 1st July, 1952, the property was legally and competently conveyed to the first defendant, who, in turn, transferred it to the third defendant. It was, further held that the plaintiff had no title. Consequently the suit was dismissed.
13. Against this dismissal, the plaintiff filed A.S. No. 302 of 1970. During the pendency of the appeal the fourth defendant was impleaded as a party defendant by order, dated 11th July, 1973 in C.M.P. No. 2943 of 1973, as she had also become interested in the suit property. The point that arose for consideration in the appeal was whether the plaintiff-appellant had acquired any title by virtue of the Court auction-purchase of the suit property. Ismail, J., as he then was, held that the plaintiff-appellant had not acquired any title whatsoever to the suit property, that he had purchased only the right, title and interest of the judgment-debtors and that the judgment-debtor viz., Balakrishna and his two brothers had no right, title or interest in the suit property. In construing the will, the learned Judge was of the opinion that the interest of Balakrishna and his two brothers was only a contingent one and not a vested one, that they would get the property only if the first defendant had no male issue, and that as in 1933 when the first mortgage was executed, she would have been only 22 and in 1936 only 25, at the relevant time it could not be predicated that the contingency contemplated for vesting the property in Balakrishna and others in the absence of any male issue to Dhanalakshmi had not come into existence. As the three grandsons of Munuswami had no disposable interest on the dates when the mortgages were executed, the mortgagee, it was held, did not acquire any interest in the property. In this view, the learned Judge found it unnecessary to consider the consequences of the order of this Court in Application No. 2016 of 1952 in T.O.S. No. 9 of 1925 authorising the sale of the suit property to the first defendant or her nominee. The result was that the appeal filed by the plaintiff was dismissed. The plaintiff, who had, thus lost in both the forms, has now brought the matter on appeal under Letter Patent.
14. On behalf of the appellant Mr. R. Kesaya Iyengar, the learned Counsel took up the following points-
(1) The construction of the will by the learned Judge, as if the mate grand-children of Munuswamy had no vested interest, but had only a contingent interest was wrong;
(2) O.S. No. 46 of 1943 was filed after all the male grand-children had attained the majority and on 12th February, 1944, they had entered into a compromise and submitted to a decree. This compromise was with persons owning the equity of redemption and subject to the life interest of the first defendant, Dhanalakshmi, which was preserved in the mortgage decree and the auction sale. The purchaser in Court auction had thus obtained a valid title to the suit property;
(3) The plaintiff's right as the assignee of the decree was contested by the grandsons unsuccessfully and, therefore, the orders in those proceedings operated as res judicata. In those proceedings the void nature of the decree had been raised and overruled and, therefore, the matter could not be agitated any further; and
(4) As the Court's order in Application No. 2016 of 1962 in T.O.S. No. 9 of 1925 was under a collusive transaction and was a mere pretence, it could not convey any title to the, defendants. Even the equitable mortgage of 1933 referred to in the application to this Court could not have been effected, as the relevant documents were in the possession of the plaintiff. Thus, the whole transaction culminating in the conveyance of the property to defendants 3 and 4 had no legal effect and gave valid title to them.
We would go into each one of these contentions seriatis.
15. Mr. Kesava Iyengar relied on a decision in Umes Ghunder Sircar v. Zakur Fatima and Ors. (1891) ILR 18 Cal164, in support of his contention regarding the construction of the will. This decision was rendered by the Judicial Committee of the Privy Council on the following facts: The decision of the said case depended on the construction of a deed of 26th January, 1971, executed by one Sultan Ali, who was the owner of one anna fouteen dams share in a property. It was granted to his wife Amani Begum on condition that if she had a child the grant would be taken as a perpetural one. In case no child was born, she would have only a life interest and after her death the property was to come to the possession of the Sultan All's two sons Farnand and Farbut. The interest of Farnand and Farbut was sought to be attached in certain Court proceedings. This attachment would be valid if they had a vested remainder in the property and would be invalid if they had only a contingent interest. At page 177 it was pointed out as follows:
That interest given to the two sons appears to their Lordships not to fall within the description of an expectancy or of a merely contingent or possible right or interest.
This decision has been followed by this Court in two comparatively recent cases.
16. In C.S. Nagaraja Iyer and Anr. v. Seethalakshmi Ammal : AIR1962Mad369 , one Lakshmi Ammal was absolutely interested in a property. She had no issue and brought up her brother's daughter, Sivakami Ammal as her own. Lakshmi Ammal executed a settlement in favour of Sivakami stating that she should enjoy the property without any right of alienation till her lifetime, and that after her lifetime the male children that might be born to her or in their absence the female issue born to her should take the same and enjoy with absolute rights. In case Sivakami had no issue whatever, her mother, Seethalakshmi Ammal and her heirs should take the property with absolute rights and enjoy the same. Sivakami was married, but had no children.... She died on 24th February, 1957. He mother, Seethalakshmi Ammal filed a suit to recover possession of the property claiming to be entitled to do so under the aforesaid settlement: one of the defendants in the suit being the husband of Sivakami. After referring to the Privy Council decision cited above, it was held that what was given to Seethalakshmi Ammal, the mother, under the settlement was the vested remainder, the time of distribution being the date of the death of Sivakami.
17. The point regarding the nature of the interest taken by the legatee came up for consideration more directly in Ramaswami Chettiar and Anr. v. Venkatammal and Ors. I.L.R. : AIR1965Mad193 . There was a partition in the said case between Alagarsami Chettiar, the father and Subbiah Chettiar, the son. It was provided that a certain portion of the properties should be enjoyed by Alagarsami with a right to create mortgage and lease but with no power of sale or gift, that if Alagarsami were to marry again and get heirs by the second marriage, those heirs alone were to take his share after his lifetime and that if Alagarsami were to marry but have no male heir by that marriage, Subbiah should after Alagarsami's lifetime perform his obsequies and take over his share of the property. Subbiah died during the lifetime of Alagarsami, and Alagarsami did not marry again. He, however, made a bequest of his share to a third party. It was pointed out that though a valid disposition could be made in favour of an unborn person (the issue of Alagarsami by the contemplated marriage), it did not mean that in all cases where interest in property was created in favour of an unborn person, there was a vested interest on him and that the alterative provision was only a contingent one. The distinction between the nature of a contingent interest and vested interest was described in the said judgment as follows in paragraph 9 in page 195:
A contingent interest is one in which the interest created in favour of a person is to take effect only on the happening of a specified uncertain event. On the other hand, where an interest is created in favour of a person on the happening of an event, which must happen, such interest would be vested, subject, of course, to the rule that, on a reading of the entire document, a contrary intention is discernible. In the present case Subbiah was alive at the time of the partition. An interest was undoubtedly created in his favour, which would fall into his possession on Alagarsami Chettiar's death. But the document provided that he would not get that interest if Alagarsami were to marry again and got a son out of that marriage. In other words, his interest was only to, be defeated if there came into existence, another son to his father. Now, looking at the other aspect of the matter, the marrying of a second wife by Alagarsami Chettiar was an uncertain event.
After referring to the several decisions including the Privy Council decision mentioned above, it was pointed out in paragraph 17 at page 197 as follows:
In the instant case, Subbiah was, as we said more than once, in existence on the date of the partition document and it was possible for Alagarsami Chettiar to create a vested interest in him forthwith. The disposition in favour of his second wife's son could only be a contingent one, because his coming into existence was dependent upon two contingencies; first, of his marrying,, and secondly, such marriage being fruitful The rule of construction to which we have made reference just now, and the language of the document now in question fully strengthen the presumption that the intention of the parties to the document was to immediately vest the reminder in Subbiah.
18. The rule of construction referred to in the above passage was taken from Halsbury's Laws of England, 3rd Edition, Volume 39 at page 1120, wherein it is stated as follows:
In case where there is a doubt as to the time of vesting, the presumption is in favour of the early vesting of the gift, and, accordingly, it vests at the testator's death or at the earliest moment after that date which is possible in the context, whether it is of real or personal estate; and it is presumed that the testator intended the gift to be vested, subject to being divested, rather than to remain in suspense. The presumption is especially applicable in cases where the interest created is a remainder, the reason being that keeping the remainder, contingent might in many cases exclude the issue of a person intended to take in tail by the parent's dying before the remainder became vested.
In Theobald on Wills, 12th Edition, page 480, paragraph 1411, the presumption in such cases was staged as follows:
The Court leans in favour of early vesting, at any rate in cases where there is some one in existence who can say, on the natural construction of the language of ,the will, that his share has absolutely vested in interest, although it cannot be said exactly what share as a matter of quantum has so vested.
Thus, it is clear that the general policy of law is in favour of early vesting and unless an opposite intention is expressed or has to be implied from the other provisions of the will, the law would construe a grant which was to take effect in future as creating a vested interest in favour of the grantee from the very moment of transfer. See B.B. Mitra's Commentaries on the Indian Succession Act, 8th Edition at page 185. Thus, having regard to these decisions it has to be held that the three male grand-children of Munuswamy had a vested interest in the property, as Dhanalakshmi marrying and getting a child or children were merely contingencies.
19. Mr. Radhakrishnan, the learned Counsel for the third defendant/second respondent contended that the decision in Umes Chunder Sircar v. Zahur Fatima and Ors. (1891)ILR 18Cal164, has been understood in later cases only as enabling a Muslim to create a life interest. He referred in this connection to two decisions viz., Banoo Begum v. Mir Abed Ali (1908)ILR 32 Bom172 and Namyan Vithal Samant v. Jankibai Kom Sitaram Samant and Ors. (1912) ILR 39Bom604. The said decision of the Privy Council has been understood by this Court in the cases discussed already as creating a vested interest in the remainder-man, subject to defeasance on the birth of any child or children to the life-estate holder. It is not, therefore, possible to accept the submission that the said Privy Council decision deals only with a point of Mohammedan Law and not a principle of construction of documents.
The relevant clause in the will in this case runs as follows:
Therefore, these two properties should be enjoyed by my wife throughout her lifetime without alienating them. She must see that the houses are not deteriorated and, must carry out the repairs etc. She must pay the Municipal rents and quit-rents. After her death my grand-daughter Dhanalakshmi Ammal should got these houses and she must enjoy the same without alienating under the same condition imposed above. If Dhanalakshmi Ammal has any issues, then they should get these properties and enjoy the same. If Dhanalakshmi Ammal has no male issue, then these properties should go in equal shares to my grandsons Balakrishnan, Gnanasundaram and Marimuthu and other male issues that may be horn to my daughter Vaduvambal.
The clause is similar to the one in Ramaswami Chettiar and Anr. v. Venkatammal and Ors. I.L.R. : AIR1965Mad193 , and we would, therefore, apply the said decision.
20. The learned Counsel for the respondents further contended that the construction suggested by Mr. Kesava Iyengar runs counter to Section 21 of the Transfer of Property Act. Under that section, where, on a transfer of property, an interest there in created in, favour of a person is to take effect only on the happening of a specified uncertain event, or if a specified uncertain event shall not happen, such person thereby acquires a contingent interest in the property and such interest becomes a vested interest, in the former case, on the happening of the event, in the latter, when the happening of the event becomes impossible. Though the Privy Council case had its origin in a suit which was started before the Transfer of Property Act was enacted, still having regard to the principle of the said decision having been applied in later decisions of this Court in construction of documents, to which the Transfer of Property Act would apply, we would prefer to follow the Bench decision binding on us rather than embark upon a further enquiry as to how far those decisions are consistent with Section 21 of the Transfer Of Property Act. The learned Judge, whose judgment is now under appeal, had not the benefit of these citations and, therefore, did not deal with this point in the light of the decision of this Court. In these circumstances, we would proceed on the basis that the male grand-children of Munuswamy had a vested interest in the said properties, subject to defeasance on the birth of a male issue to Dhanalakshmi, the first defendant.
21. Our attention was drawn to a decision of a Bench of this Court in Ekambaram v. Krilshnammai (1969) 82 L.W. 349. In that case there was a will under which one Nataraja Pillai was to take the income accruing from the property described in the will and after his life-time, if he left any male issue, they were to take the aforesaid property, with powers of alienations such as gift, usufructuary mortgage and sale. If there were no male issue, the testator's heirs would take the aforesaid property. In construing this will, the learned Judges held that the heirs of the testator who were alive on the date of the death of Nataraja Pillai, (who had no male issue) were the only heirs entitled to the distribution of bequests and that there should be vesting of the ultimate bequest in the testator's heirs at the time of Nataraja's death. The decision of this Court in Ramaswami Chettiar and Anr. v. Venkatammal and Ors. (1969) 82 LW 349, and the Privy Council decision in Umes Chunder's case I.L.R. : AIR1965Mad193 , were not brought to the notice of the learned Judges and, therefore, it is not possible to state whether they would have come to the same conclusion in case the earlier decisions including that of the Privy Council were brought to their notice. It is possible that these decisions were not considered to be relevant to a case where the bequest was to a class of heirs to Palaniandi who were to be ascertained on a future date, i.e., at the time of Nataraja's death. It was thus a case of contingent interest. The language of the will in the decision in Ekambaram v. Krishnammai (1891) I.L.R. 18 Cal. 164, being different, the rule of construction applied therein would not be applicable to the case before us. Re. : 2. We have already referred to the fact that the suit. O.S. No. 46 of 1943 was in respect of two mortgages. One of the mortgages had been executed in 1933, when Kuppammal was alive. That mortgage purports to have been executed by Balakrishna and his two brothers also. Balakrishna, himself a minor, had acted as guardian of his two brothers. It is difficult to understand how Balakrishna could have acted as the guardian of his younger brothers Gnanasundaram and Marimuthu when their parents, Velu Naicker and Vaduvambal were then alive. We have already seen that Balakrishna would be aged 19 at the time when he purported to have executed this mortgage. It is not in dispute that Balakrishna attained majority only on 10th September, 1934, and his two brothers, Gnanasundaram and Marimuthu attained majority on 26th April, 1938, and 10th May, 1941, respectively. This is clear from Exhibit A-14, dated 20th July, 1959, being the certified copy of the affidavit of Velu Naicker and Vaduvambal in T.O.S. No. 9 of 1925, the application being for sanction of the sale of the suit property. Thus, Balakrishna could not have executed the document even for himself and it is needless to state that he could not have also acted as guardian for his minor brothers Gnanasundaram and Marimuthu, who were admittedly not majors at that time. It is settled law that a contract by a minor is void. Thus, the mortgage of 1933 in so far as it was executed by Balakrishna either by himself or as guardian of his brothers was a void transaction.
22. By the time the suit came to be filed, Kuppammal, the other executant of the mortgage had died. Admittedly she had only a life interest in the property. Her interest could not have survived after her death and, therefore, there could have been no sale of any interest belonging to her in the property in execution of the mortgage of 1933. It has also to be borne in mind that Exhibit A-3 in terms prohibited the alienations by her. Even assuming that the alienations contemplated by the will referred only to a sale and not to a mortgage or a charge; still the mortgage or the charge created by Kuppammal lapsed on her death. Having only a life-interest, she could not have created any interest which would enure beyond her life. Balakrishna and others could not have dealt with the property, as they were minors at the relevant time. We did not hear Mr. Kesava Iyengar to contest the position that the age of majority in their case was 21 and not 18. Thus, even on the basis that Balakrishna and his two brothers had a vested interest in the property, the entire mortgage created by Kuppammal and others had absolutely no effect. The second mortgage of 1935 covered other properties with which we are not concerned. We have found the 1933 mortgage to be a void transaction. The decree and sale would therefore, be ineffective and invalid.
23. It is apparently because of this feature that Mr. Kesava Iyengar was driven to rely on the terms of the compromise entered into at the time of the disposal of the suit, O.S. No. 46 of 1943 on 12th February, 1944. The compromise memo, has not been exhibited in this case. We have thus no means to find out whether there was a compromise and if so, its terms. Even assuming that there was a compromise, still the Court could not have decreed a suit based on a void mortgage.
24. In this connection the decision in K.K. Chari v. R.M. Seshadri : 3SCR691 , was brought to our notice. In that case there was an order of eviction based oh the consent of parties. Subsequently when the order of eviction was sought to be executed, the tenant contended that the decree sought to be executed was one based on compromise or consent and that the Rent Control Court not having satisfied itself by an independent consideration regarding the bona fide requirement of the property by the landlord for his own occupation could not have ordered eviction. In disposing of this contention the Supreme Court held that if the tenant in fact admitted that the landlord was entitled to possession on one or other of the statutory grounds mentioned in the Act, it was open to the Court to act on that admission and make an order for possession in favour of the landlord without further enquiry. It is also brought out from the judgment of Alagiriswami, J., that a compromise would be valid only if it was in accordance with the Act, i.e., only if the landlord had asked for possession of the building on one of the grounds laid down in the Act, and that if the landlord merely applied for eviction on the ground that he was the owner of the building, the Rent Controller could not have passed a valid order merely because the tenant submitted to an order of eviction, as the jurisdiction of the Rent Controller would only be to order eviction on certain; grounds enumerated in the Act.
25. This decision clearly brings out the principle that if the Court had no jurisdiction to entertain a suit or a proceeding, then notwithstanding the consent, the Court could not pass a valid decree or order. In other words, if the transaction was void, then the compromise, as if the transaction was a valid one so as to entitle the plaintiff to file a suit thereon, would not justify the Court in granting a decree based on it. There is a world of difference between a Court acting on a compromise in respect of a matter within its jurisdiction and a Court acting on a compromise outside its jurisdiction. In the present case, the whole suit O.S. No. 46 of 1943 being based on a void transaction could not have given rise to any valid compromise. The parties to the compromise could not have conferred validity to a void transaction and the Court could not also by setting its seal on it have blessed the transaction with any validity. As pointed out by Jagadisan, J., in Kulasekaraperumal v. Pathakutty Thalevanar and Ors. : AIR1961Mad405 at 407, following Kottala Runganatham Chetty v. Ramasam Chetty (1904) ILR 27 Mad162, there can be no question of ratification of a void transaction, as a void transaction is one which has no existence whatever and is non est in law. The result is that the whole decree passed on the basis of the void mortgage has absolutely no legal validity and that the execution proceedings and the subsequent sale cannot confer any valid title on the plaintiff.
Re. 3 : It is now necessary to examine the third contention that the assignment proceedings having been contested, the matter is governed by the principles of res judicata and the void nature of the transaction or the decree based on the compromise, cannot be raised. This contention overlooks a basic fact, viz., that the person who contested the validity of the assignment proceedings is not one of the three male grand-children of Munuswamy, but the first defendant. It is not in dispute that the first defendant was nowhere in the picture either in the suit O.S. No. 46 of 1943 or in the subsequent execution proceedings. She had not also at any time taken up any proceedings questioning the validity of the decree or the execution proceedings or the sale. Therefore, whatever may be the position, if Gnanasundaram and Marimuthu contested the validity of the execution proceedings at this stage, the same consideration cannot apply to the contest by the first defendant or her successors-in-interest. In other words, nothing prevents the first defendant or her successors-in-interest from questioning the, validity of the mortgage or the decree or the sale. As pointed out by the Privy Council, in Khiarymal v. Daim LR 32 IA 23 : (1905) ILR 32 Cal 296 at 312, the Court had no jurisdiction to sell the property of persons who were not parties to the proceedings and as against such persons, the decree and sale purporting to be made would be a nullity and might be disregarded without any proceeding to set them aside. See also Payidamra v. Lakshminarasamm 1915 ILR 38 Mad 1076 : 28 MLJ 525.
26. In this view, we do not find it necessary to go into the contention that even an erroneous decision can operate as res judicata, if the matter was not contested by the party to it. So long as Dhanalakshimi was not a party to the earlier litigation in the Chingleput Court or the proceedings emanating therefrom, she or her successors-in-interest were not precluded by any principles of res judicata from contesting any validity of the decree or the sale in pursuance of the decree.
27. Mr. Kesava Iyengar made an elaborate submission to the effect that once the sale was confirmed, there could be no dispute about the validity of the title of the auction-purchaser. But in this case that principle will not apply. The principle is confined to cases where a party to the suit having had opportunities of question in the validity of the sale did not do so and take appropriate proceedings to challenge the validity, subsequently. Either the principles of estoppel or the principles of res judicata would be applicable, and they would be precluded from contesting the validity of the sale, as there are adequate provisions under Order 21, or Section 47 of the Code of Civil Procedure enabling them to contest the validity of the execution sale. If they stood by and allowed the-sale to be confirmed, the title of the auction-purchaser cannot be challenged in subsequent or other collateral proceedings by them. But in this case Dhanalakshmi was not a party to the earlier litigation and, therefore, she was not bound by any of the provisions of the Coder to question the decree or the validity of the sale. There is nothing to show that she was aware of the said proceedings and stood by also. In these circumstances, we do1 mot find it necessary to discuss those cases where the-contention as regards the validity of the decree or the execution is not open to the parties to the proceedings after the confirmation of the sale by the Court.
28. This leads us to the last contention, viz., the effect of the High Court's order on 1st July, 1952. We have referred to the application No. 2016 of 1952 having been mades to this Court and the Court sanctioning the sale in terms of the said application. Mr. Kesava Iyengar contended that the whole proceedings were fraudulent and collusive. The Supreme Court in Nagubai Ammal and Ors. v. B. Shama Rao and Ors. : 1SCR451 , has brought out the distinction between a fraudulent and5 collusive transaction. It is unnecessary to go into the facts of that case. It is enough to refer to the principle deduced by Venkatarama Ayyar, J., speaking for the Court. In the said decision at page 599, there is a passage which is as follows:
Now, there is a fundamental distinction between a proceeding which is collusive and one which is fraudulent. Collusion in judicial proceedings is a secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose. (Wharton's Law Lexicon, 14th Edition, page 212.)
In such a proceeding, the claim put forward is fictitious, the contest over it is unreal, and the decree passed therein is a mere mask having the similitude of a judicial determination and worn by the parties with the object of confounding third parties. But when a proceeding is alleged to be fraudulent, what is meant is that the claim made therein is, untrue, but that the claimant has managed to obtain the verdict of the Court in his favour and against his opponent by practising fraud on the Court. Such a proceeding is started with a view to injure the opponent, and there can be no question of its having been initiated as the result of an understanding between the parties. While in collusive proceedings the combat is a mere sham, in a fraudulent suit it is real and earnest.
If we may take leave to may so, collusive f proceeding is a shadow-boxing, while a fraudulent proceeding is a real one with an intent to injure some third party. The common character of both the proceedings is an element of fiction, intended to subserve some selfish ends.
29. In the present case Mr. Kesava Iyengar characterised the proceedings in Application No. 2016 of 1952 as collusive, because, according to him, Ananthalwar in collusion with the first defendant and others obtained the Court's sanction and the allegation of fraud was on the basis that they wanted to injure the plaintiff. Mr. Radhakrishnan the learned Counsel for the second respondent submitted that in the case of allegations of fraud the...proper particulars must have been set out in the plaint as required by Order 6, Rule 4 of the Code of Civil Procedure. The allegations in the present case as regards the nature of the proceedings in Application No. 2016 of 1952 are contained in paragraphs 12 and 13 of the plaint which run as follows:
12 The plaintiff submits that the defendants have colluded and with a view to defraud the plaintiff have fraudulently brought about these transactions. The plaintiff submits that he is not bound by any of these transactions which are collusive and the plaintiff ignores all of them.
13. The plaintiff submits that the third defendant by virtue of the illegal, invalid, void sale in his favour and with the active aid of the other defendants (of whom the second defendant is an advocate for the Madras Bar) is trying to interfere with the plaintiff's property. The plaintiff also understands that the defendants are also making arrangements to otherwise dispose of the suit property which will create further complications.
It is needless to state that the two paragraphs extracted above from the plaint are devoid of particulars of either collusion or fraud. The learned Counsel was, therefore, justified in contending that the appellant cannot be allowed to take before us the point of any collusion or fraud in the proceedings in Application No. 2016 of 1952. In fact there was not even an issue on these aspects.
30. There is one further infirmity in the contention of Mr. Kesava Iyengar. When once it is found that the plaintiff has no title to the suit property, it would be wholly un-necessary to go into the question as to whether the proceedings in Application No. 2016 of 1952 were collusive or fraudulent. Whether they were collusive or fraudulent, they cannot grant any validity to the sale in favour of the plaintiff. We donot, therefore, see any need to go into the further questions whether the executors, had ceased to be the executors and had become trustees and whether the probate Court could go into the question of title in the proceedings before it. The plaintiff can succeed in the suit for declaration under the plaint as amended only on the basis of a valid title to the property. If he did not have any title to the property, then he cannot pick holes in the title of the defendants and try to succeed. That the plaintiff can succeed1 only on the basis of the proof of his own allegation in the plaint as regards his title and he cannot succeed by picking holes in the title of the defendants is too Well-established1 to need citation of any authority. The plain tiff having failed to make out a case of valid title to the suit property cannot succeed in getting a declaration as prayed for in the plaint. The suit was rightly dismissed by the trial Court, and the confirmation of the decree by this Court cannot be open to any interference.
31. We now take up the original side appeal. This appeal arises out of an order of Mohan, J., in Application No. 74 of 1976 in T.O.S. No. 9 of 1925. The application was filed by the plaintiff in the other suit which we have just now considered. The application was to set aside the order dated 1st July, 1952, rendered in Application No. 2016 of 1952. From the averments in the affidavit it became clear that the plaintiff was aware of the said application and the orders passed thereon as early as (in fact before) 1960. As no explanation was given as to why the present application was filed after nearly 23 years, Mohan, J., held that the application was barred by limitation. He pointed out that there was not even a formal application under Section 14 of the Limitation Act to condone the delay. The result was that the application was dismissed and against this order the above appeal has been filed. There is also a petition numbered as C.M.P. No. 10338 of 1976 under Section 14 of the Limitation Act praying for condonation of the delay. In the origina.1 application as filed, there were no details as regards the nature of the proceedings, which were pleaded in explanation of the delay. A supplemental affidavit has been filed and in it the relevant dates of the several proceedings have been set out.
32. The learned Counsel for the respondents has brought to our notice Application No. 2193 of 1958, which was made by Mr. T.R. Srinivasa Iyer as Advocate for the appellant. That application was to search the records in T.O.S. No. 9 of 1925 and was ordered on 8th December, 1958. The direction was that copies of the will and the records in Application No. 2016 of 1952 with orders thereon should be furnished. Subsequently copies of the orders have been: obtained by the appellant. In the supplemental affidavit there is no reference to this application. It is stated in paragraph 3 thereof that the appellant became aware of the order in Application No. 2016 of 1952 in T.O.S. No. 9 of 1925 towards the end of 1960 and that he immediately started proceedings in the High Court and the Bar Council, after giving notice to the Advocates on 12th December, 1960 and 20th January, 1961 and that T.C.A. Anandalwar reconveyed the property to the first defendant on 6th December, 1962. The delay between December, 1958, when the appellant obtained the orders of this Court on the search application and December, 1960, when he claimed to have taken proceedings in the High Court and the Bar Council remains unexplained. Even assuming that the appellant was prosecuting bona fide tax proceedings before the Bar Council against T.C.A. Anandalwar, and that they are relevant to Section 14, still, there is nothing to show why the said proceedings were not taken even in 1958 or 1959 soon after he obtained the copies as directed by this Court in its order dated 8th December, 1958. As there is no explanation for this delay, we do not think it proper to accept this application under Section 14 of the Act.
33. The result is that the application which was disposed of by Mohan, J., was hopelessly time barred. The application was filed after the lapse of nearly 23 years. There is no room for interference with the order of the learned Judge, The result is both the appeals are dismissed and also C.M.P. No. 10338 of 1976. The contesting respondents will be entitled to their costs in the Letters Patent Appeal. There will be no order as to costs in the original side appeal and C.M.P. No. 10338 of 1976.