NEMMAYYA SHETTY Vs. NAGARAJA SHETTY

JUDGEMENT

(1.) This second appeal arises out of a suit brought by the two plaintiffs for recovery of possession of the muli right in the suit property, free from the Court-sale held at the instance of defendant 1 in execution of a decree for costs obtained by defendant 1 against the mother of the plaintiffs, in A.S. Nos. 209 and 229 of 19.13 on the file of the District Court of South Kanara. The plaintiffs and defendants 2, 3 and 4 are the children of the lady against whom the decree for costs was passed, and constitute an Aliyasanthana family. She died shortly after the decree, leaving all these children minors. In the execution proceedings taken by defendant 1 he first proposed certain persons as guardians for the minors and on their declining to act as guardians or not appearing in response to the notice, defendant 1 applied in R.E.P. No. 275 of 1917 to have an officer of the Court appointed as guardian of these minors for the purpose of the execution sale. The Deputy Nazir was accordingly appointed and as the costs decreed were not deposited, the property of the minors was brought to sale and purchased by defendant 1 himself in September 1917 This suit has been instituted by the plaintiffs almost at the expiry of the period of twelve years from the date of sale. In substance, their case is that they were not really represented in the execution proceedings and the sale is accordingly not binding upon them, To meet the contingency of the sale being held voidable and not void, they added that they are suing within three years of the fraud coming to their knowledge, it being assumed that in that view the suit will be governed by Art. 95, Lim. Act.

(2.) The first issue raised in the case was whether the Court-sale is not valid and binding on the plaintiffs and their family. The District Munsif was apparently of opinion that the sale was open to question but he thought that the plaintiffs remedy was to proceed by way of application under Order 21, Rule 90. I am not satisfied that this is the correct view as to the remedy open to the plaintiffs. If the remedy was to be by application, and not by way of suit, the application would be under Section 47, Civil P.C. The District Munsif also held that even if the case should be held to be governed by Art. 95, the other members of the family who were older than the plaintiffs must have known of the sale and all matters connected with it more than three years before the suit and that therefore the plaintiffs would also be barred under the terms of Section 7, Lim. Act. He accordingly dismissed the suit. On appeal, the learned District Judge set aside the decree of the first Court, holding that the remedy by suit was available to the plaintiffs and that in the application of Art. 95 the plaintiffs cannot be prejudiced by the omission of defendants 2, 3 and 4 to sue in time. He thought that the principle of the decisions of this Court in Vigneshwara V/s. Bapayya (1893) 16 Mad. 436 and Doraiswami Serumadan V/s. Nondisami Saluvan 1915 Mad. 1201 was no longer good law in view of the decision of the Privy Council in Jawahir Singh V/s. Udai Prakash 1926 P.C. 16. On the merits, I am not by any means satisfied that the Courts below were justified in assuming that defendant 1 was guilty of what is described as legal fraud in connexion with R.F.P. No. 275 of 1917. For some reason the affidavit filed in support of that petition has not been exhibited in the case.

(3.) It will not therefore be fair to assume that he made any false statement there. Mr. Sitarama Rao however argues that even if he did not make a false statement, he must have been guilty of suppression of truth in not disclosing the existence of the maternal grandmother of the minors and of the maternal grandfather. It is on this omission that the lower appellate Court has held defendant 1 guilty of fraud. In view of the observations in Marudamalai v. Palani 1914 Mad. 584 I am inclined to doubt the propriety of attributing fraud to a party merely because he does not mention the existence of certain relations in connexion with a guardian application. Proceeding how ever on the footing that the circumstances connected with the appointment of a court-guardian might have entitled the minors to question the sale, it appears to me that they must have taken the necessary proceedings within the one year allowed by Art. 12, Lim. Act, subject to such extension of time as they may get under Section 6. In this case the suit is obviously beyond that period with reference to the age of plaintiff 1. No attempt has been made to invoke the aid of Section 18, Lim. Act, by suggesting that defendant 1 was responsible for keeping the plaintiffs from the knowledge of their rights. If the sale was only voidable, the suit will accordingly be barred by limitation, unless with reference to the age of plaintiff 2 and the effect of Secs.6 and 7, Lim. Act, the plea could be gob over. Mr. Sitarama Rao contends that the sale must be held to be void and that accordingly any suit filed within twelve years will be in time. In support of this proposition he relies upon the observations in Rivichand V/s. Manakkal Raman Somayajipad 1923 Mad. 553. The language used there is somewhat general, but if one is to take it in all its generality, it will be difficult to reconcile that decision with the observations in Marudamalai V/s. Palani 1914 Mad. 584. Ramesam, J., who was a party to Rivichand V/s. Manakkal Raman Somayajipad 1923 Mad. 553, has explained himself more fully in Gunnam Gangarazu V/s. Satyanarayana 1931 Mad. 674, and there discussed the relevant authorities. There is no question in the present case either of absolute non-representation or of the appointment of a guardian whose appointment is prohibited by statute. The most that can be said is that defendant has persuaded the Court to make a wrong order in the matter of appointing a Court officer as-guardian. The case is certainly more analogous to the type dealt with in Malikarjun V/s. Marhari (1901) 25 Bom. 337, than to that dealt with in Khairajmal V/s. Daim (1905) 32 Cal. 296 or Rashidunnisaa v. Muhammad Ismail Khan (1909) 31 All. 572. I am inclined to agree with the view indicated by Ramesam, J., in Gunnam Gangarazu V/s. Satyanarayana 1931 Mad. 674, that the sale is if at all only voidable and is not a nullity.