NAGAMMA SHEDTHI Vs. KORATHU HENGSU

JUDGEMENT

(1.) The suit out of which this appeal arises was instituted by respondents 1 to 6 before us in the Court of the Subordinate Judge of South Kanara for a declaration that the decree obtained by the appellant against the family of themselves and respondents 7 to 9 and 19 in O.S. No. 387 of 1936 on the file of the Court of the District Munsif of Mangalore did not bind them. That was a suit filed by the appellant as releasee of the suit properties from the auction purchaser thereof in execution of the decree in O.S. No. 39 of 1928, Sub-Court, South Kanara at Mangalore, which had been obtained on the basis of a mortgage effected by the present fifth defendant, by the father of the present defendants 6 to 9 and by the father of the present defendants 10 to 12, who together with their sons and the 13 defendant, their step-brother were the mulgars of the suit properties. The defendants in O.S. No. 387 of 1936 who contested it by filing a written statement were the mulgeni tenants, i.e., the present defendants 2 to 4 who were the heads of the three branches of the undivided Aliyasanthana family of which the plaintiffs of the present suit are the junior members. The appellant filed the suit (O.S. No. 387 of 1936, District Munsif Court, Mangalore) for arrears of rent and possession of the properties comprised in the present plaint A and B schedules asserting, as is said by the present plaintiffs, falsely and fraudulently that she was entitled to the entire mulgeni rental, although a portion thereof had been dedicated to Devata Viniyogas at the partition in the family of the Bulgars, that the present plaint B schedule properties in addition to the present plaint A schedule properties formed part and parcel of the mulgeni holdings and that the mulgeni lease had become forfeited for non-payment of the rent due. It is also alleged by the present plaintiffs in their plaint that the appellant fraudulently managed to secure the collusion of defendants 2 to 4 and 14 and obtained a decree ex parte. Although defendants 2 to 4 had filed their written statements in answer to the action, their vakil, Mr. G. Somasekhara Rao reported no instructions, when the cause came on for hearing. Defendants 2 to 4 were set ex parte, and a decree was passed, which is the subject-matter of challenge in the present suit, which is, as may be expected, resisted by the first defendant on the ground that there was no fraud or collusion about the former decree obtained against the heads of the family. The Additional Subordinate Judge who tried the cause in the Court below granted a decree to the plaintiffs against which the first defendant has preferred this appeal.

(2.) It falls to be observed at the outset that there are no details of fraud or collusion given in the plaint and that the decree passed by the learned Subordinate Judge is not based on any finding of fraud or collusion, as alleged in the plaint however, vaguely, so much as in a finding of gross negligence on the part of defendants 2 to 4 in remaining ex parte at the time of trial of O.S. No. 387 of 1936, District Munsif. Court, Mangalore, after and although they had raised various defences in their written statement. The learned Subordinate Judge has in a very exhaustive judgment scrutinised in detail the merits of all the pleas raised, in the written statement in the former suit in the light of the evidence now adduced and has upheld them all as valid pleas in fact which should have resulted in a non-suit of the plaintiff in the former action but for the gross negligence of defendants 2 to 4. The raison d etre of the deicision of the learned Subordinate Judge is contained in three short paragraphs of his long judgment paragraphs 37, 41 and 42 which may be here reproduced: By reason of the conduct of defendants 2 to 4 in the prior suit the family of the parties have been gravely prejudiced. A decree was allowed to be passed for amounts which were not due to the first defendant. The first defendant was entitled to acquire possession of the B schedule properties to which she had no title. She was enabled to acquire possession of the properties in the A schedule which alone were the subject-matter of the mulgeni grant, even though there was no valid notice to quit and the lease had not been forfeited according to law A consideration of the evidence establishes beyond doubt that the defendants 2 to 4 were grossly negligent in remaining ex parte at the time of trial even though various defences had been raised in the written statement. The plaintiffs are entitled to have the decree set aside On behalf of the first defendant it has been contended that it is nowhere alleged in the plaint, that the defendants 2 to 4 were guilty of gross negligence, that the plaint proceeds on the footing that the decree was obtained fraudulently and collusively, and that in the absence of specific mention of the fact that defendants 2 to 4 were guilty of gross negligence the decree cannot be set aside on that ground. It is argued that the plea of gross negligence is a recent development at the trial. There is no force in this plea. Gross negligence that has been proved in this suit amounts to fraud oh the rights of the family. The mere fact that the words gross negligence are not expressly used in the plaint cannot take away the right of plaintiffs to avoid the decree. In Malabar and Aliyasanthana Law by P. R. Sundara Ayyar at page 90 it is stated as follows : In eases where the action is brought to enforce obligations incurred by the karnavan or to enforce the consequences of a default of his, the dividing line between fraud and failure to plead would generally be hard to delineate . It is clear that a decree against a karnavan is binding on the tarwad because of the representative character of the karnavan. He is the head and representative of the family, but when gross breach of duty is proved as in this case, that amounts to fraud on the family and must be treated as fraud upon his power. The decree in O.S. No. 387 of 1936 was obtained fraudulently. The defendants 2 to 4 failed to utilise the means of proof at their disposal and have lost the tarwad properties, as a result of their negligence. In Durgamma V/s. Kechamayya (1924) 48 M.L.J. 351 gross negligence was held to amount to fraud. The above argument on behalf of the first defendant is not entitled to force.

(3.) Mr. T. Krishna Rao, the learned advocate for the appellant, has attacked the soundness of the law which found favour with the learned Subordinate Judge by the citation of a long list of decisions with the more important of which we shall presently deal. Mr. K. Y. Adiga for the respondent has with his usual frankness agreed that, if the view of law adopted by the learned Subordinate Judge is rejected by us, the appeal must be allowed without any need for us to go into the evidence about the pleas raised by defendants 2 to 4 in their written statements in the former suit but not attempted to be proved by them at the trial of that suit.