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Venkataraman Vs. Ponnusami Padayachi and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1927Mad1023
AppellantVenkataraman
RespondentPonnusami Padayachi and anr.
Excerpt:
- - if so it cannot possibly be argued that his raising a plantation was done otherwise than in good faith. if, after notice, he incurs expenditure he may be deemed to have done so at his risk and, therefore, not in perfect good faith. the costs of the suit should always be within the discretion of the court, and when the court is satisfied that a certain proceeding was such that the minor's estate should not be made liable in respect of the same but should be paid by the next friend personally, the court has the right to do so......position. i am aware that it has been the practice of courts to direct in proper cases that the costs of a suit should be paid by the next friend of the minor plaintiff personally. i say in proper cases because it depends upon the discretion of the court whether the court considers the action or proceeding taken by the next friend on behalf of the minor plaintiff to be bona fide or prompted by any other consideration. no question of the exercise of discretion itself has been raised before me. it has been argued on the question of the power of the court itself. if the court should have no such power it follows that it would be within the power of any man passing in the street to exploit and ruin the estate of a minor by merely seeking to file a suit for and in the name of the minor and.....
Judgment:

Srinivasa Aiyangar, J.

1. The only point that arises in this second appeal has reference to the amount allowed to the defendant as the value of the improvements made by him, the payment of which has been made a condition precedent before the plaintiff is allowed to recover possession of the property. The amount was allowed for the casuarina planted in the land in question. The lease granted by the mother was for ten years. It is in evidence that even before that the defendant has got into possession probably in the course of negotiations or at first on a yearly lease. The transaction was merely voidable. Till it is avoided the lease subsists. The lease was obviously granted for the special purpose of enabling the defendant to raise a casuarina plantation there. If so it cannot possibly be argued that his raising a plantation was done otherwise than in good faith. He had no reason to believe that some next friend, least of all this next friend, would file the suit on behalf of the minor and have the lease set aside. The only question then is whether a person who had incurred expenses for the purpose of raising the plantation should not be reimbursed that amount and whether there is any reason for depriving him of that equity.

2. Both the lower Courts have considered the matter and decided that it was a case in which the defendant was entitled to that relief in equity. If the plaintiff's case was that the plantation was made or that any material portion of the expenditure now allowed to the defendant was incurred after the service of summons in the suit on the defendants, such portion may be disallowed to the defendant because he has then a legal and valid notice on behalf of the minor plaintiff questioning the validity of the transaction on the basis of which he insures the expenditure. If, after notice, he incurs expenditure he may be deemed to have done so at his risk and, therefore, not in perfect good faith. But I asked Mr. Rajah Aiyar the learned vakil for the appellant, to show whether there was any ground in this case for contending that any portion of the expenditure allowed to the defendant could be regarded as having been incurred subsequent to such date. Mr. Rajah Aiyar said that soon after the transaction itself a notice was given by the present next friend to the defendant repudiating the transaction. At that time the next friend had no legal status whatever. The minor was under legal guardianship. It is only when he became next friend by taking these proceedings, having been allowed to be so by Court, that he acquired any legal character with regard to the minor plaintiff. Till then any repudiation by him is waste paper. But the matter might conceivably be different after service of the summons in the suit itself on the defendant. But Mr. Rajah Aiyar has frankly admitted that he is not in a position to show that any portion of the expenditure was really incurred after the service of summons in the suit. If so it follows that all the amount allowed to the defendant must have been incurred not only before the transaction was set aside, but even before he had any legal notice of the claim on behalf of the plaintiff repudiating the same. There is no question about the amount itself. In these circumstances I do not see any reason or warrant for depriving the defendant who incurred the expenditure on the faith of the transaction. I think the lower appellate Court was right in its judgment. The second appeal fails and must be dismissed.

3. I might add one word with regard to the order for costs, which was referred to by Mr. Rajah Aiyar, and that was an order for costs to be paid personally by the next friend in the lower appellate Court. Mr. Rajah Aiyar wished to contend that the Court had no power to direct the cost to be paid by the next friend personally. He has, however, cited no authority for the position. I am aware that it has been the practice of Courts to direct in proper cases that the costs of a suit should be paid by the next friend of the minor plaintiff personally. I say in proper cases because it depends upon the discretion of the Court whether the Court considers the action or proceeding taken by the next friend on behalf of the minor plaintiff to be bona fide or prompted by any other consideration. No question of the exercise of discretion itself has been raised before me. It has been argued on the question of the power of the Court itself. If the Court should have no such power it follows that it would be within the power of any man passing in the street to exploit and ruin the estate of a minor by merely seeking to file a suit for and in the name of the minor and saying that the costs of the other side ought to be paid or directed to be paid from the estate of the minor. I should be surprised if the legislature intended any such consequence. The costs of the suit should always be within the discretion of the Court, and when the Court is satisfied that a certain proceeding was such that the minor's estate should not be made liable in respect of the same but should be paid by the next friend personally, the Court has the right to do so. Whether the next friend has any right of reimbursement in proper circumstances or not against a minor or his estate is another matter with which we are not concerned. The second appeal is, therefore, dismissed with costs.


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