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Sreemat Kanatala Venkata Krishnama Charlu (Now Major) and anr. Vs. Sreemat Kandala Perundevamma (Dead) and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in56Ind.Cas.593
AppellantSreemat Kanatala Venkata Krishnama Charlu (Now Major) and anr.
RespondentSreemat Kandala Perundevamma (Dead) and ors.
Cases ReferredAmrit Narayan Singh v. Gaya Singh
Excerpt:
.....of the option in the matter, which, on becoming reversiorers, they would soon be entitled to exercise and regarding which 1st plaintiff at least was already old enough to form an intelligent opinion. true, we at present do not know whether the case against adoption or 1st defendant's previous alienation, available to kanakacharyalu or to them, was strong. there was further a faint suggestion in argument, although 1st and 2nd defendants have not been explicit on the point, that the decree in original suit no, 51 contains nothing distinctly debarring plaintiffs from claiming in the future since it debars kanakacharyalu under whom they would not claim and, therefore, they will not be prejudiced by it. 51, whether or not the manner in which he hurried through the proceedings is more than..........first defendant in 1910 set up the adoption of the 2nd defendant and kanakacharyala sued in original suit no. 72 of 1911 to have it declared invalid in 1912, as it was thought that a decree in terms of the award would not bind plaintiffs or 3rd defendant, their adult elder brother, because they were not parties to original suit no, 72, there was a reference to arbitration; and an application, numbered as original suit no. 51 of 1912, was made to the court to file the award by the 1st defendant, kanakacharyala, the present 2nd and 3rd defendants and plaintiffs being made defendants. on the same day, 28th september 1912, original suit no. 72 was dismissed on the ground that an adjustment had taken place. in original suit no. 51 a decree was passed on 30th september 1912, exhibit f,.....
Judgment:

1. The main reliefs asked for in these oases are declarations that the adoption of 2nd defendant by 1st defendant is not valid and that the proceedings in Appeal Suit No. 72 of 1911 and No. 51 of 1912 are not binding on plaintiffs. The lower Court refused the latter and, therefore, did not deal with the claim to the former on its merits.

2. The facts are that plaintiffs were in 1912 minors, the eldest being about sixteen, and their father Kanakacharyalu was the nearest reversioner to the estate of 1st defendant's deceased husband. First defendant in 1910 set up the adoption of the 2nd defendant and Kanakacharyala sued in Original Suit No. 72 of 1911 to have it declared invalid In 1912, as it was thought that a decree in terms of the award would not bind plaintiffs or 3rd defendant, their adult elder brother, because they were not parties to Original Suit No, 72, there was a reference to arbitration; and an application, numbered as Original Suit No. 51 of 1912, was made to the Court to file the award by the 1st defendant, Kanakacharyala, the present 2nd and 3rd defendants and plaintiffs being made defendants. On the same day, 28th September 1912, Original Suit No. 72 was dismissed on the ground that an adjustment had taken place. In Original Suit No. 51 a decree was passed on 30th September 1912, Exhibit F, filing the award and giving; effect to its terms. Those are the proceedings, which the plaintiffs desire to displace. As regards Original Suit No. 72 they were not parties and it is admitted, when they become reversioners, they will not be bound by the acts of the previous reversioner, Kana-acharyalu. Plaintiffs, therefore, are clearly entitled to a declaration as regards those proceedings. But it is not disputed that they must displace the decree in Original Suit No. 51 and the award on which it was based before they can obtain a decision as to the validity of the adoption on its merits. The grounds of attack on these proceedings are that the 3rd defendant, who represented them in Original Suit No. 51, was fraudulent or negligent in his conduct of the case and had no right to support the filing of an award, which was disadvantageous to them or at least had not been passed in any arbitration at which they were represented or indeed in any real arbitration proceedings at all.

3. Before the direct evidence is referred to, the result of the award must be stated. But for it under Hindu Law Kanakacharyalu or after his death whoever might be the reversioners at the time, and they would be (so far as appears) the plaintiffs and 3rd defendant, would be entitled on 1st defendant's death to the estate of her late husband and so far as appears, they could be deprived of the succession only by an adoption on her part, to be made with the consent of her deceased husband, the existence of which Kanakacharyalu and his family did not admit and could have disputed, or their own consent, which they could have refused. The award, Exhibit K 1, upheld the adoption conditionally on the carrying out of its other terms, gave 1st defendant an absolute estate in about 20 acres, debarred Kanakacharyalu and 2nd defendant from disputing an alienation already made by the widow and 2nd defendant from disputing the claims of Kanakacharyalu's family as reversioners in the future to the property of one Ramavataram and gave Kanakacharyalu half of the remainder of the estate of 1st defendant's husband. The result was no doubt to give Kanakacharyalu immediate possession of something, which he could have got only on 1st defendant's death after successfully attacking the adoption. But, on the other hand, if be had so attacked it, he could eventually have obtained also, not only the half of the residue allotted to 2nd defendant, but also the 20 acres given absolutely to 1st defendant which composed the more valuable portion of the estate, as well as the possibility of regaining the property alienated by her already. And as regards plaintiffs, there were the further considerations that although Kanakacharyalu might leave them what he obtained, there was no guarantee that he would do so or would not spend it, since it was self-acquired property in his hands, and that, as he was, it will be seen, failing at the time (he in fact died early the next year), there was no reason for depriving them of the option in the matter, which, on becoming reversiorers, they would soon be entitled to exercise and regarding which 1st plaintiff at least was already old enough to form an intelligent opinion. True, we at present do not know whether the case against adoption or 1st defendant's previous alienation, available to Kanakacharyalu or to them, was strong. But there is no reason in the terms given by 1st and 2nd defendants for supposing that it would be negligible, or for supposing that there was any reason for hurrying the disposal of the matter and depriving them of rights, which in the ordinary course would accrue so shortly. There was further a faint suggestion in argument, although 1st and 2nd defendants have not been explicit on the point, that the decree in Original Suit No, 51 contains nothing distinctly debarring plaintiffs from claiming in the future since it debars Kanakacharyalu under whom they would not claim and, therefore, they will not be prejudiced by it. The answer is that it includes a declaration of the validity of the adoption, to which they are parties and by which they are bound, and that, if the decree is binding on them, they will, in consequence of it, be debarred indirectly from setting up their rights. In these circumstances the conclusion must be that 3rd defendant is not shown to have acted prudently in consenting to the decree on their behalf. It will be found that he also was guilty of gross negligence or fraud, and that will be enough to enable plaintiffs to succeed. Hoghton, In re, Hoghton v. Fiddey (1874) 18 Eq. 573 : 43 L.J.Ch. 758 : 22 W.R. 864 and Lala Sheo Churn Lal v. Ramnandan Dobey 22 C.P 8 : 11 Ind. Dec. (N.S.) 7

4. Their Lordships here discussed the evidence.]

5. This completes the case on the facts. It may, no doubt, be argued that an award is not open to objection on the sole ground that it merely reproduces an agreement come to between the parties. See the judgment of Strachey, Chief Justice, in Gobardhan Das v. Jai Kishen Das 22 A.P 224 : A.W.N. (1900) 52 : 9 Ind. Dec. (N.S.) 1180. But that can be accepted, only when the consent of the parties can be and is regarded by the arbitrators as evidence that the settlement proposed is fair to all, and it can have no application against the plaintiffs before us, who were not represented in the arbitration and whose interests were not considered, although it was almost admittedly in order to bind them that the pretence of an arbitration was made. When they were formally represented by 3rd defendant in Civil Suit No. 51, whether or not the manner in which he hurried through the proceedings is more than consistent with the imputation of fraud, there is no doubt that by accepting what he and all concerned, except the Court, knew to have been merely a pretence as the basis of the decree, he failed grossly and fraudulently in his duty to protect their interests and that is sufficient to justify us in declaring that the decree is not binding on them.

6. Apart, however, from the facts we are asked to grant relief on another ground, that, as the Judicial Committee held in Amrit Narayan Singh v. Gaya Singh 44 Ind. Cas. 408 : 45 C.P 590 : 23 M.L.T. 142 : 22 C.W.N. 409 : 27 C.L.J. 296 : 34 M.L.J. 298 : 4 P.L.W. 221 : 16 A.L.J. 265 : (1918) M.W.N. 306 : 7 L.W. 581 : 20 Bom.L.R. 546 : 45 I.A. 35 the right of a Hindu reversioner becoming concrete only on the death of the female owner and till then merely a spes successions his guardian, if he happens to be a minor, cannot bargain with it on his behalf or bind him with any contractual engagement in respect thereto, ' and a guardian's action in referring to arbitration a matter connected with his ward's reversionary interest was held null and void. This is perfectly consistent with Kanhai Lal v. Brij Lal 47 Ind. Cas. 207 : 40 A.P 487 : 22 C.W.N. 914 : 8 L.W. 212 : 24 M.L.T. 236 : 35 M.L.J. 459 : 16 A.L.J. 825 : (1918) M.W.N. 709 : 28 C.L.J. 394 : 5 P.L.W. 294 : 20 Bom.L.R. 1048 : 45 I.A. 118 relied on by 1st and 2nd defendants, because there, as the judgment explicitly states, cot only an agreement by the reversioner, but an estoppel constituted by his acceptance of benefits thereunder which could not arise against a minor, was in question. A further attempt was made to distinguish the present case on the ground that in it the minor reversioners were made parties not only to a bargain as to their own succession, but also as to the adoption of 2nd defendant. But this cannot affect the principle involved. For the bargain on the plaintiff side was no less one made with their reversionary right; because their opponents relied on its extinction in consequence of an alleged adoption and not in another way or, as in Amrit Narayan Singh v. Gaya Singh 44 Ind. Cas. 408 : 45 C.P 590 : 23 M.L.T. 142 : 22 C.W.N. 409 : 27 C.L.J. 296 : 34 M.L.J. 298 : 4 P.L.W. 221 : 16 A.L.J. 265 : (1918) M.W.N. 306 : 7 L.W. 581 : 20 Bom.L.R. 546 : 45 I.A. 35, on a contention that it never arose. Plaintiffs are, therefore, entitled to succeed also on the ground that, whether or no 3rd defendant's conduct of the previous proceedings on their behalf was negligent or fraudulent', neither he nor any other guardian could have conducted them to a substantial result, since they were fundamentally incompetent.

7. The result is that we allow the appeal and setting aside the lower Court's decision hold that plaintiffs are entitled to the declaration asked for, that they are not bound by the decision in Original Suits Nos. 72 and 51 and remand the suit for disposal on the merits with reference to the issues Nos. 7, 9, and 11. With regard to the observations made by the lower Court on issue No. 7 it is pointed out that plaintiffs' claim as regards the previous decrees was not to have them set aside, but to have them declared void and inoperative against them. We notice, moreover, that no issue already framed touches plaintiffs' prayer with reference to the alienations to 3rd defendant, an omission which the lower Court will be at liberty, if the plaintiffs so desire, to repair. Defendants will be liable jointly for plaintiffs' costs to date in this and the lower Court, whatever the ultimate result.


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