Sherija Bi vs Vedanayakam Pillai and Others

A. Varadarajan, J.—The third defendant is the appellant. The first respondent--plaintiff, the son of the first defendant and one Ramaswami,

filed the suit for cancellation of a mortgage decree obtained by the second defendant against himself and his mother in O.S. No. 195 of 1951 on

the file of the Sub-Court, Salem, declaration of his title to the suit properties which are 78 acres of lands and an injunction restraining the fourth

defendant (third respondent herein) from interfering with his possession of the suit properties. According to the first respondent, his father

Ramaswami left 40 acres of ancestral lands and they were sold by the second respondent and with the sale proceeds she purchased the suit lands

from the second defendant (whose legal representatives are respondents 4 to 11 herein) under Exhibit B-4 in 1942 for Rs. 8,750 in the names of

herself and the first respondent and executed a mortgage under Exhibit B-1 for Rs. 4,000 in favour of the second defendant and it is not binding on

him. The further case of the first respondent was that the second defendant filed O.S. No. 195 of 1951 against him as though he was a minor

represented by his mother as guardian though, in fact, he was major and his interests were adverse to those of his mother and he was not properly

represented and therefore, the decree passed in that suit was not binding on him. The properties were brought to sale in E.P. No. 136 of 1958, in

execution of the decree passed in O.S. No. 195 of 1951 and the appellant has purchased the same for Rs. 6,010. The first respondent''s case was

that the execution proceedings and sale were not valid and binding on him on the ground that the decree is void and the properties were really

worth a lakh of rupees, but were sold for Rs. 6,010, and he came to know of the decrees and the execution proceedings only ten days before the

institution of the present suit.

Defendants 2 to 4 alone contested the suit. Their case was that the first respondent was congenitally deaf and dumb and was unable to manage

his own affairs and that he must be represented by the next friend in the suit and that the present suit filed by the first respondent without a next

friend is not maintainable. They further contended that the first respondent is not the owner of the suit properties and that, if at all, he would be

entitled only to a half share in the properties on the ground that the sale deed had been obtained in the names of himself and the second

respondent.

On the basis of the admission in the written statement of the defendants 2 to 4 that the first respondent was congenitally deaf and dumb and was

unable to manage his own affairs and should have been represented by a next friend in the suit when it was instituted, the learned Subordinate

Judge held that the decree obtained in O.S. No. 195 of 1951 on the basis that the first respondent was a minor represented by his mother as the

guardian and not on the basis that he was a congenitally deaf and dumb person unable to manage his own affairs, was valid and binding on the first

respondent. The learned Subordinate Judge further found that the properties do not belong absolutely to the first respondent, but belong to both

respondents 1 and 2 and held that the decree in O.S. No. 195 of 1951 is not void and not vitiated by fraud and that the execution proceedings in

E.P. No. 136 of 1958 are binding on the first respondent. In that view, he dismissed the suit with the costs of the contesting defendants. On

appeal, the learned District judge found that there is no evidence to show that the first respondent''s father left ancestral properties to the extent of

40 acres at the time of his death and that they were sold by the second respondent and that the subsequent purchase of the present suit properties

was from out of the sale proceeds of those 40 acres of lands. However, he held that, having regard to the fact that the sale had been obtained in

the names of both the respondents 1 and 2, the first respondent had a half share in the properties. After coming to this conclusion, the learned

District Judge called for a finding from the Sub-Court as to whether the first respondent was congenitally deaf and dumb and was unable to

manage his own affairs, as to the date on which the first respondent attained majority and as to the value of the properties. Subsequently, the plaint

was amended and it was alleged that the first respondent is congenitally deaf and dumb and is unable to manage his own affairs, and the defect in

not filing the suit through a next friend was cured. The learned Subordinate Judge thereafter found, on the admission of defendants 2 to 4 that the

first respondent is congenitally deaf and dumb and is unable to manage his own affairs and should have been represented by a next friend in the

present suit, that he was congenitally deaf and dumb and was unable to manage his own affairs and should have been represented by a next friend

in the suit. On the other two questions, he found that the first respondent had attained majority on 16th September, 1951 prior to the institution of

O.S. No. 195/51 which was on 1st October, 1951 and that the properties would be worth Rs. 1,500 per acre at the relevant time. The learned

District Judge accepted the findings and held that the first respondent was congenitally deaf and dumb and was unable to manage his own affairs

and should have been represented in O.S. No. 195 of 1951 by a guardian on that basis, but was put forward as a minor and a guardian had been

appointed for him on that basis in the suit instituted on 1st October, 1951 although he had attained majority on 16th September, 1951 and was a

major on the date of the suit, and held that the mortgage decree and the execution proceedings were therefore void to the extent of the first

respondent''s share in the properties, and accordingly granted a declaration to that extent and also a decree for injunction.

It is not possible to uphold the decree of the learned District Judge for injunction, having regard to his own finding that even the 2nd respondent

had title. The first respondent was entitled only to his half share in the suit properties and the decree in O.S. No. 195 of 1951 and the further

execution proceedings are void and not binding on him to the extent of only his share and the appellant who is the purchaser in the execution sale

would then be a co-owner against whom there cannot be a decree for injunction. The appellant had become entitled to the second respondent''s

half share by the Court sale. The right of the first respondent would only be to sue for partition and separate possession of his half share in the

properties which are not joint family properties.

Now it has been found that the first respondent had attained majority on 16th September, 1951 and was a major on the date of institution of the

suit, O.S. No. 195 of 1951 on 1st October, 1951. His mother had been appointed as his guardian in that suit on the basis that he was a minor.

There was no proper representation of the first respondent in that suit as he was a major and a guardian had been appointed for him on the basis

that he was a minor on, the date of the suit. Mr. Parasaran, Learned Counsel for the appellant argues that, inasmuch as a guardian had been

appointed in the prior suit for the first respondent, his interests had been protected and that the fact that he was not described in the previous suit

as a congenitally deaf and dumb person unable to manage his own affairs would not affect the rights of the appellant. It is not possible to accept

this contention. The appointment of the guardian in the previous suit was on the basis that the first respondent was a minor, whereas, on the date of

the institution of that suit, he was a major. It was not on the basis that he was congenitally deaf and dumb unable to manage his own affairs, and the

appointment of guardian was therefore not proper. The decree in the previous suit was therefore a nullity as has been rightly found by the learned

District Judge so far as the first respondent is concerned. Therefore, it is not possible to make any provision for the payment of the proportionate

liability of the first respondent under the mortgage, Exhibit B-1, which is stated to have been executed for part of the consideration for the purchase

of the properties in the names of the first and second respondents. Under the circumstances, the second appeal is allowed only in part to the extent

of the injunction and is otherwise dismissed. The first respondent is at liberty to sue for partition and separate possession of his half share in the

properties. Respondents 4 to 11, the L.Rs of the second defendant may take such steps as they may be advised in respect of any liability of the

first respondent under the mortgage, Exhibit B-1. There will be no order as to costs. No leave.