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(Chanda) Pullamma Garu Vs. (Jasti) Satyanarayana and ors. - Court Judgment

LegalCrystal Citation
Subject Property; Civil
CourtChennai
Decided On
Reported inAIR1930Mad0
Appellant(Chanda) Pullamma Garu
Respondent(Jasti) Satyanarayana and ors.
Cases ReferredGanesha Row v. Tuljaram Row.
Excerpt:
- - he urged that defendant 3, the elder brother of the present plaintiff, who was admittedly a major at the time of the prior suit, was ex-parte, and that if the plaintiff's present contentions were considered to be good, surely defendant 3 would have himself put forward such contentions. if these findings are upheld in second appeal, it follows that the decree passed in favour of the plaintiff is clearly right......(himself), and that in fact the guardian was also guilty of gross negligence in the conduct of the prior suit. both the lower courts have found in favour of the plaintiff substantially as regards all the contentions put forward by him. defendant 2's legal representative has preferred this second appeal.2. the learned advocate for the appellant contended that the guardian is not bound to put forward technical pleas such as that the document was registered by a sub-registrar in whose jurisdiction the property intended to be given as security was not situated. he also contended that the lower courts had approached the case from an erroneous standpoint. he urged that defendant 3, the elder brother of the present plaintiff, who was admittedly a major at the time of the prior suit, was.....
Judgment:

Anantakrishna Ayyar, J.

1. Defendants 3 and 4 and the plaintiff were brothers. Defendant 3 for himself and as guardian of his younger brothers (defendant 4 and plaintiff) both of them then minors, executed a hypothecation bond in favour of defendants 1 and 2 on 14th December 1922 for Rs. 700. A suit was instituted by defendant 2 (O.S. No. 511 of 1918) making the present defendants 3 and 4 party defendants to recover money due on the mortgage. Defendant 3 would seem to have become a major at the time of that suit. The present plaintiff being a minor at that time, in fast he is a minor even now was represented by his elder brother, defendant 3, as guardian ad litem. None of the defendants appeared, and the result was that a decree was passed in favour of the mortgagee (plaintiff). Execution proceedings were started and the properties were sold and purchased by the decree-holder himself. The present suit, O.S. No. 226 of 1922 on the file of the Court of the District Munsif of Gudivada, was instituted by the plaintiff, even now a minor, making his two brothers as defendants 3 and 4. Defendants 1 and 2 represent the mortgagee. The case of the plaintiff was that the mortgage, the subject-matter of O.S. No. 511 of 1918, was not executed for necessity by his eldest brother, that the registration of the document was invalid in law because it was registered by a Sub-Registrar within whose jurisdiction no portion of the property intended to be given as security was situated, that defendant 3 the executant of the mortgage, was not in law competent to represent the minor (himself), and that in fact the guardian was also guilty of gross negligence in the conduct of the prior suit. Both the lower Courts have found in favour of the plaintiff substantially as regards all the contentions put forward by him. Defendant 2's legal representative has preferred this second appeal.

2. The learned advocate for the appellant contended that the guardian is not bound to put forward technical pleas such as that the document was registered by a Sub-Registrar in whose jurisdiction the property intended to be given as security was not situated. He also contended that the lower Courts had approached the case from an erroneous standpoint. He urged that defendant 3, the elder brother of the present plaintiff, who was admittedly a major at the time of the prior suit, was ex-parte, and that if the plaintiff's present contentions were considered to be good, surely defendant 3 would have himself put forward such contentions. He finally urged that in any event it should be made clear that it is only with reference to the plaintiff's interest that the mortgage decree and the subsequent sale would not be binding and that the interests of defendants 3 and 4 would not in any way be affected by the result of the present suit.

3. I do not propose to say anything on the question of fraud on the registration law. Both the lower Courts have concurrently found that the guardian was grossly negligent in the conduct of the defence in the prior suit. They have also found that there was no necessity for borrowing Rs. 700 mentioned in the mortgage-deed. Cogent reasons have been given by both the Courts in respect of their findings. I think they had ample materials on which they could have arrived at such findings. If these findings are upheld in second appeal, it follows that the decree passed in favour of the plaintiff is clearly right. The result of the recent Full Bench decision in Venkata Someswara Rao v. Lakshmanaswami A.I.R. 1929 Mad. 213 is that the mere circumstance that the executant of a document which was purported to be executed both by himself personally and on behalf of certain minors, also represented the minors in a subsequent suit, could not be taken by itself to make any decree passed on the basis of the document invalid and not binding upon the minors. The Full Bench held that the question of validity and binding nature of such decree should be considered having regard to the particular pleas taken in any case. Having regard to the findings mentioned by me, the plaintiff was properly given a decree by both the lower Courts.

4. The learned advocate for the appellant drew my attention to the fact that the learned Subordinate Judge expunged from the decree passed by the first Court some words on the ground that they were really unnecessary. The first Court's decree is printed at p. 7 and 8 of the pleadings book. After declaring that:

the decree in O.S. No. 511 of 1918 on the file of the Court and also the Court sale held in execution thereof are set aside as not valid and binding on plaintiff in any way whatsoever.

the decree proceeds to state that the prior suit, O.S. No. 511 of 1918, will be reopened and gone into on the merits allowing the present plaintiff to contest it by some guardian other than defendants 3 and 4. The learned Subordinate Judge on appeal thought that these words need not be inserted in such a decree and that the declaration granted in the first portion of the trial Court's decree would be sufficient, as the Court before whom any further application would be made in respect of O.S. No. 511 of 1918 would naturally respect the declaration in the decree. I think that the view of the learned Subordinate Judge on that point is correct.

5. The form of the decree that should be passed in such a case has been discussed in some of the Privy Council cases, as also what the effect of such decree in the subsequent suit would be with reference to a prior decree regarding which relief was granted by the decree in the subsequent suit. The Privy Council cases in Khajoorunnissa v. Rowshan Jahan [1876] 2 Cal. 184, Partab Singh v. Bhaputi Singh [1913] 35 All. 487, Manohar Lal v. Jadunatha Singh [1906] 28 All. 585, and Ganesha Row v. Tuljaram Row [1913] 36 Mad. 295) support the view taken by the Subordinate Judge.

6. In Manohar Lal v. Jadunath Singh [1906] 28 All. 585. it was pointed out by their Lordships that setting aside a prior decree 'in its entirety' was not justified when the relief that the plaintiff in the second suit would be entitled to would be only with reference to his own rights and not the rights of anybody else. It has also been pointed out in the other cases that a declaration would ordinarily be the proper form of relief to be granted in such a suit. No doubt, the effect of setting aside the decree in the words of their Lordships' judgment in the case reported in Khajoorunnissa v. Rowshan Jahan [1876] 2 Cal. 184, would be 'to remit both parties to their original rights.' That was what was stated in Ganesha Row v. Tuljaram Row. [1913] 36 Mad. 295, also. It therefore seems to me that the form of the decree passed by the learned Subordinate Judge is not open to any objection.

7. The learned advocate for the appellant requested me to make it clear that it was only with reference to the plaintiff's interest that he has now been given relief in the present suit. The learned advocate for the respondent does not dispute that position. As I read the first Court's decree, I think there could not possibly be any doubt that was what was contemplated, and in fact the decree specifically says that the decree in the prior suit and the sale in execution thereof are sat aside as not valid and binding on 'plaintiffs.' That being so, I do not think it necessary to add anything to the decree passed by the lower appellate Court. For the above reasons, the decision of the learned Subordinate Judge is right and this second appeal is dismissed with costs.


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