EBRAHIM Vs. CHERIYAN
LAWS(KER)-1955-1-16
HIGH COURT OF KERALA
Decided on January 20,1955

EBRAHIM Appellant
VERSUS
CHERIYAN Respondents

JUDGEMENT

- (1.) DEFENDANTS 1 and 2 are the appellants. The suit is for declaration of the plaintiffs title to the plaint properties and for recovery of possession of the same with mesne profits. According to the plaintiff, the plaint schedule properties belong to him. They were purchased in his name, while he was a minor, by his paternal grand-father. Ext. A dated 15. 8. 1103 is the sale deed. It is alleged that the consideration for the sale deed was advanced by the maternal grand-father of the plaintiff. The properties were at that time outstanding on a mortgage. The mortgage right also was subsequently taken assignment of in the name of the plaintiff. On 18. 2. 1104 the plaintiff's father and paternal grand-father together executed a hypothecation bond, Ext. B, in respect of the plaint properties in favour of the father of defendants 2 to 8 stating that the properties belonged to them and that they have been acquired with their own funds in the name of the plaintiff. Plaintiff alleges that the executants of Ext. B had no right in the properties and that they were not competent to hypothecate the same. On the basis of the hypothecation bond, the father of defendants 1 to 6 instituted O. S. No. 166 of 1105 of the Quilon district Court and obtained a decree. In execution of the decree the plaint properties were sold in auction of 6. 3. 1111 and purchased by the decree-holder. Ext. I is the sale certificate. He obtained delivery of possession of the properties through court on 20. 3. 1112. Ext. IV is the delivery kychit. The plaintiff was impleaded as third defendant in O. S. No. 166 of 1105. His paternal grand-father was the first defendant and father the second defendant. Father was his guardian for the suit. It is alleged that his father did not accept the guardianship, that he was not a proper guardian for the suit, that he did not contest the suit on his behalf, that he (plaintiff) was not legally represented in the suit and that the decree and execution proceedings are null and void so far as he is concerned. It is also alleged that the plaintiff was under the guardianship of his maternal grand-father. Plaintiff brought the suit for a declaration of his title to the plaint properties and for recovery of possession of the same with mesne profits at the rate of 150 paras of paddy per year and also for a declaration that the hypothecation bond dated 18. 2. 1104 is not valid and binding on the plaintiff and that the decree and execution proceedings in O. S. No. 166 of 1105 are null and void so far as he is concerned. The decree-holder-auction-purchaser in O. S. No. 166 of 1105 is dead, and his legal representatives are defendants 1 to 8. The 9th defendant is the father of the plaintiff.
(2.) DEFENDANTS 1 and 2 alone contested the suit. They contended as follows: The plaint schedule properties were purchased in the name of the plaintiff benami for the plaintiff's father and paternal grand-father and the properties really belonged to them. They were, therefore, competent to hypothecate the properties in favour of the father of defendants 1 to 8. Plaintiff had no right to the properties. The decree and execution proceedings in O. S. No. 166 of 1105 are valid and are not liable to be set aside. The suit is barred by res judicata and by limitation. The mesne profits of the properties would not be more than 115 paras of paddy per annum. DEFENDANTS 1 to 8 were only the trustees of their father and they are, therefore, not personally liable for any of the reliefs claimed in the plaint. The court below held that the sale deed, Ext. A, was taken for the benefit of the plaintiff, that it was not taken in his name benami for his father and grand-father, and that the plaintiff was the absolute owner of the plaint properties. It was, therefore, held that the plaintiff's father and paternal grand-father were not competent to execute the hypothecation bond. Ext. B, in favour of the father of defendants 1 to 8. It was also held that the plaintiff was not legally represented in the suit in o. S. No. 166 of 1105, that the plaintiff's father had refused to act as his guardian for the suit, that the father was not qualified to be the guardian for the suit, since his interests were adverse to those of the plaintiff, that the father did not contest the suit on behalf of the plaintiff and that the decree and sale in the case are null and void so far as the plaintiff is concerned. On the basis of this finding, it was held that the suit instituted within twelve years from the date of dispossession of property was not barred by limitation. The plea of res judicata was also found against. Plaintiff was accordingly allowed to recover possession of the properties with mesne profits at the rate of 115 paras of paddy per annum. The points urged in the appeal are: (1) The Court below went wrong in holding that the decree in O. S. No. 166 of 1105 is null and void so far as the plaintiff is concerned. It was contended that the decree was only voidable. (2) The suit is barred under Art. 9 of the Travancore Limitation act. (3) The suit is barred by res judicata. (4) Ext. A sale deed was taken in the name of the plaintiff benami for his father and grand-father. (5) The court below went wrong in valuing paddy at the nirak rate prevailing on the date of suit.
(3.) THE respondent filed a memorandum of objection claiming mesne profits at the rate of 150 paras of paddy per annum. THE court below did not allow mesne profits from the date of suit. Objection was taken to that also. Interest was claimed on mesne profits at the rate of 6 per cent per annum. We shall consider each of the points urged in the appeal. The first and the most important point relates to the question whether the decree in O. S. No. 166 of 1105 is void so far as the plaintiff is concerned. That depends on the further question whether the plaintiff who was the third defendant in that case was legally represented in the suit. As stated already, his father who was the second defendant was his guardian for the suit. Plaintiff's case is that he was under the guardianship of his maternal grand-father and that his father was not competent to act as his guardian and had also not consented to act as guardian. The question whether the plaintiff was really under the guardianship of his father or of his maternal grand-father is not relevant for the purpose of this case. The only relevant question is whether his father was properly appointed as his guardian for the suit. His father and grand-father had executed Ext. B hypothecation bond stating that the properties belonged to them although the sale deed was taken in the name of the plaintiff. The suit was instituted on the basis that the properties belonged to them. It is, therefore, clear that the interest of the father was adverse to that of the plaintiff. The real question to be decided in the suit was whether the properties hypothecated belonged to the plaintiff or to his father and grand-father.;


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