Pati Nagamma vs Pulapa Veerasami and Others

Curgenven, J.—This was a suit to set aside the decree in O. S. No. 116 of 1917 on the file of the Court of the District Munsif of Cocanada,

which was brought by the father of the present 1st defendant against the present plaintiff represented by his mother and guardian the 2nd

defendant. The District Munsif found that the plaintiff was a minor at the time of the suit, that he was aware of the proceedings carried on by his

mother and that she was not negligent in the conduct of the defence. He accordingly dismissed the suit. In appeal the Subordinate Judge has found

differently upon each of these issues, namely, that the plaintiff had attained majority by the time the suit was filed, that he is not shown to have been

aware of the proceedings and, therefore, that acquiescence was not proved, and lastly that his mother was guilty of negligence. On the first of these

questions, viz., the minority or majority of the plaintiff, the Subordinate Judge has given reasons which, I think, are indisputably sound, finding that

at the date of the institution of the suit, which seems to have been on the 6th March 1917, the plaintiff had attained the age of 18 years. His

inference is founded upon the horoscope and upon the statement of the plaintiff''s age in the draft plaint which was written in April 1916. I must

accordingly, accept the conclusion.

The next question is whether there was acquiescence on the part of the plaintiff. The District Munsif has gone into this question very carefully

and after considering all the evidence and the probabilities, has reached a clear finding that the plaintiff must have been cognisant of the

proceedings. In particular he finds that at the time they were instituted the plaintiff must have been living in the same house with his mother, and

taking into consideration his fairly mature years the inference was a fair one that he knew what was taking place. In coming to a contrary decision I

cannot say that the Subordinate Judge has overlooked any material or substantial part of the evidence. He appears to have been considerably

influenced by the circumstance that the 1st defendant in his written statement alleged, but failed to adduce any proof of, the fact that the plaintiff

himself was present at the proceedings in Court. He evidently finds it very difficult to escape the conclusion, which was supported by one of the

plaintiff'' s own witnesses, that mother and son were living together, but he adds that this circumstance does not seem to him to suffice to show that

the plaintiff had knowledge of the suit and appeal, or of the defence which the plaintiff''s mother put forward on his behalf. If I was sitting as a

Court of first appeal, I should feel inclined to dispute the propriety of this conclusion, because it appears to me that the inference is almost

irresistible that the plaintiff must have known of the suit; but the finding is a finding of fact and in view of the rulings of the Privy Council such as that

contained in Durga Chowdhrani v. Jawahir Singh Chowdhri [1891] 18 Cal. 23 in which their Lordships say that there is no jurisdiction to entertain

a second appeal on the ground of an erroneous finding of fact:

however gross or inexcusable the error may seem to be.

I deem myself precluded from interfering with the decision. A similar view is to be found expressed in Nafar Chandra Pal v. Shukur Sheikh

[1919] 46 Cal. 189 Accepting, therefore, the findings that the plaintiff was a major at the time that the suit was filed and that he did not acquiesce

in the proceedings it must necessarily follow that he is not bound by the decree; and it is not necessary for me to go into the other portion of the

case relating to his mother''s alleged negligence. I dismiss the second appeal with costs.