KOTA NAGAYYA Vs. VANIPENTA VENKATAYYA

JUDGEMENT

(1.) This is an appeal filed by the defendant against the decree of the District Judge of Kurnool passed by him in A.S. No. 123 of 1937. The plaintiffs in the action Venipenta Venkatayya and Chinna Venkatayya are brothers. During their minority, a sale was effected by their mother and guardian in favour of the appellant for a sum of Rs. 300. The vendee was not able to get possession and therefore filed O.S. No. 40 of 1931 on the file of the District Munsif's Court of Markapur for recovery of possession of the property sold to him. The mother was also made a party as defendant 3; the two minors being made defendant 1 and 2. The mother declined to act as the guardian of her minor sons and thereupon their maternal uncle one Obiah was appointed their guardian. It is found that Obiah raised all possible defences to the suit including the question whether any portion of the sum of Rs. 800 which was the consideration for the sale was binding on the minors. The Court found that the properties were really worth very much more than the sum of Rs. 800 for which it was sold and therefore declined to uphold the sale and to give possession to the plaintiffs. The Court, however, held that two debts for the discharge of which the sale was effected were binding on the minors. One of them, a debt due to Baliah, is now admitted to have been contracted by the father of the minors and that it is therefore a proper debt. As regards the second debt which was due to one Nemiliah, he had obtained a sale from the mother and in execution of the money decree which Baliah got for the recovery of his debt, he filed a claim petition, I.A. No. 180 of 1921. It was ordered on the claim petition that Nemiliah was not entitled to enforce his right as the vendee and that he was entitled to a charge for Rs. 116. Therefore execution of Baliah's decree was directed to proceed subject to a charge for Rs. 116 in favour of Nemiliah.

(2.) In order to avoid that sale which was about to take place in execution of Baliah's decree, the sale in favour of the present defendant was effected by the mother of the minors and the sale was for the purpose of discharging Baliah's debt and also Nemiliah's debt to the extent to which a charge had been declared in favour of Nemiliah. It is upon this sale deed that O.S. No. 40 of 1931 was filed by the present defendant. In that suit the District Munsif found that both Baliah's debt and Nemiliah's debt were binding on the minors. But he found that the property was worth much more than the consideration mentioned in the sale deed. He refused to give a decree for possession but at the same time he gave a charge decree to the extent of the moneys which were advanced by the plaintiff in that action and which went to the discharge of debts binding on the minors. A preliminary decree was passed and money not having been paid, an application for a final decree was filed and the final decree followed. In execution of the final decree, the property was brought to sale and purchased by the plaintiff therein and he got possession. The present suit is filed by the two brothers one of whom has attained majority for a declaration that the decree in O.S. No. 40 of 1931 is not binding on them on the ground that their guardian ad litem was guilty of fraud and gross negligence in the conduct of the previous suit.

(3.) The trial Court found that all the defences that were open to the minors were advanced by Obiah their guardian in the previous suit, that he appeared at the trial, that he adduced all the evidence available and that the Court passed a decree for money and gave a mortgage decree for the sum found binding on the minors. On appeal the District Judge has not found that Obiah failed to advance any defence which it was open to him to advance. The judgment proceeded upon the footing that all the defences were put forward in the previous suit. One allegation which the plaintiffs put forward in the present suit, namely, that the guardian ad litem, did not appear at the trial in the previous suit has been found by the District Munsif not to be correct. He finds that the guardian ad litem was present at the trial in the previous suit. He apparently did not go into the witness- box for the reason that he did not know personally any of the facts which had to be placed before the Court. The mother of the minors was examined and three other witnesses were also examined. Mr. Kasturi Seshagiri Rao, the learned advocate for the respondents, is not able to suggest any defence which Obiah might have put forward and which he did not in fact fact forward in the previous suit. Nor is it alleged that any evidence oral or documentary was not placed before the Court which tried O.S. No. 40 of 1931. The chief complaint is that the Court passed a decree which it ought not to have passed, that on the findings arrived by it, the Court should have dismissed the suit leaving it to the plaintiff to enforce his right to recover the sums which were found binding on the minor defendants and that the Court fell into a grievous error in passing a mortgage decree. It is also said that an appeal ought to have been preferred on behalf of the minors and that no appeal was in fact, preferred on their behalf. The District Judge also finds that the District Munsif who was executing the decree in Baliah's suit and in the course of which a charge was given in favour of Nemiliah also fell into a grievous error in creating what the District Judge terms a charge on that claim petition.