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Ghanda Pullamma Garu Vs. Jasti Satyanarayana and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in123Ind.Cas.45
AppellantGhanda Pullamma Garu
RespondentJasti Satyanarayana and ors.
Cases ReferredGanesh Row v. Tuljaram Row
Excerpt:
minor - suit to set aside decree against minor--defences--form of decree. - .....(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. the 2nd defendant'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 argued that the 4th defendant, the elder brother of the present plaintiff, who was admittedly a major at the time of the prior.....
Judgment:

Anantakrishna Iyer, J.

1. Defendants Nos. 3 and 4 and the plaintiff were brothers. The 3rd defendant for himself and as guardian of Ms younger brothers (4th defendant and plaintiff) both of them then minors, 'executed a hypothecation bond in favour of defendants Nos. 1 and 2 on the 14th of December, 1922, for Rs. 700. A suit was instituted by the 2nd defendant (O.S. No. 511 of 1918) making the present defendants Nos. 3 and 4 party defendants to recover money due on the mortgage. The 4th defendant would seem to have become a major at the time of that suit. The present plaintiff being a minor at that time-in fact he is a minor even now--was represented by hie elder brother, the 3rd defendant, 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 Nos. 3 and 4. Defendants Nos. 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 the 3rd defendant, 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. The 2nd defendant'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 argued that the 4th defendant, 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 plaintiffs' present contentions were considered to be good, surely the 4th defendant 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 Nos. 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 lam 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 Madduri Venkata Somaswara Rao v. Pulavarty Lakshmanaswami 115 Ind. Cas. 801 : 52 M. 275 : 29 L.W. 125 : A.I.R. 1929 Mad. 213 : Ind. Rul. (1929) Mad. 465 : 56 M.L.J. 175 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 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 pages 7 and 8 of the pleadings book. After declaring that 'the decree in O.S. No. 511 of 1918 on the file of that 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 re-opened and gone into on the merits allowing the present plaintiff to contest it by some guardian other than defendants Nos. 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 contained 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 Borne 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 Jehan 2 C.184 : 3 I.A. 291 : 26 W.R. 36 : 3 Sar. P.C.J. 629, Partab Singh v. Bhabuti Singh 21 Ind. Cas. 288 : 35 A. 487 : 17 C.W.N. 1165 : (1913) M.W.N. 785 : 14 M.L.T. 299 : 25 M.L.J. 492 : 11 A.L.J. 901 : 16 O.C. 247 : 18 C.L.J. 384 : 15 Bom. L.R. 1001 : 40 I.A. 182 (P.C.), Manohar Lal v. Jadunath Singh 28 A. 585 : 8 Bom. L.R. 489 : 4 C.L.J. 8 : 10 C.W.N. 898 : 9 O.C. 219 : 1 M.L.T. 210 : 16 M.L.J. 291 : 3 A.L.J. 710 : 33 I.A. 128 (P.C.) and Ganesh Roy v. Tuljaram Row 19 Ind. Cas. 515 : 36 M. 295 : 17 C.W.N. 765 : 11 A.L.J. 589 : 18 C.L.J. 1 : 15 Bom. L.R. 626 : 14 M.L.T. 1 : (1913) M.W.N. 575 : 25 M.L.J. 150 : 40 I.A. 132 (P.C.) support the view taken by the Subordinate Judge.

6. In Manohar Lal v. Jadunath Singh 28 A. 585 : 8 Bom. L.R. 489 : 4 C.L.J. 8 : 10 C.W.N. 898 : 9 O.C. 219 : 1 M.L.T. 210 : 16 M.L.J. 291 : 3 A.L.J. 710 : 33 I.A. 128 (P.C.) 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 mere 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 in the case reported as Khajoorunnissa v. Rowshan Jehan 2 C. 184 : 3 I.A. 291 : 26 W.R. 36 : 3 Sar. P.C.J. 629' would be 'to remit both parties to their original right.' That was what was stated in Ganesh Row v. Tuljaram Row 19 Ind. Cas. 515 : 36 M. 295 : 17 C.W.N. 765 : 11 A.L.J. 589 : 18 C.L.J. 1 : 15 Bom. L.R. 626 : 14 M.L.T. 1 : (1913) M.W.N. 575 : 25 M.L.J. 150 : 40 I.A. 132 (P.C.) 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 interests 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 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 set aside as not valid and binding on 'plaintiff.' That being so, I do not think it necessary to add anything to the decree passed by the lower Appellate Court.

8. 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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