(GUNNAM) GANGARAJU Vs. (ARIMILLI) SATYANARAYANA

JUDGEMENT

(1.) The facts of this second appeal may be stated as follows: The plaintiff's father Subbarayudu died before 1911 leaving three sons and a widow. The eldest son, defendant 1, was adopted by him. After adoption he had natural-born sons, the plaintiff and defendant 2. His widow is defendant 3. After the father's death, the two elder sons, namely, defendants 1 and 2, were managing the property, and in the course of their management they had incurred considerable debts. In connexion with such debts suits had been filed against them and defendant 3 and decrees obtained. It is now necessary to mention only two such suits. One is Small Cause Suit No. 1055 of 1919 on the file of the Subordinate Court of Cocanada. The decree in it is Ex. 4. It was obtained on three promissory notes, Exs. 4-C and 4-D of 1917 and Ex. 4-E of 1918. The other papers in connexion with that suit are filed as Exs. 4 series and D series. Another such decree was obtained in S.C.S. No. 1292 of 1919 on the file of the Sub-Court, Cocanada on a promissory note Ex. 3-1 of 1918, which itself was in renewal of another promissory note, Ex. 3-M. The other papers connected with that suit are filed as Ex. 3 series and C series. The first decree was transferred to the District Munsif's Court, Cocanada for execution and certain properties belonging to the three brothers were sold by Ex. 1. Ex. 2 is the delivery, receipt to the purchaser. Out of the sale proceeds both the decrees were apparently paid off. The present suit was filed on 10 September 1921. It purports to be a suit for partition of the family properties against the two elder brothers. The mother was made defendant 3. Defendants 4, 5 and 6 are creditors of the family. Defendant 7 is the tenant of the family lands. Defendant 8 was the purchaser in execution of S.C.S. No. 1055 of 1919 and he was added as a supplemental defendant in 1924. The plaint denies defendant 1's adoption. It also alleges that defendants 1 and 2 were making alienations which were not binding on the plaintiff and prays for partition of the family properties. The District Munsif gave plaintiff a decree. He-declared that the decrees in the two-Small Cause suits already mentioned and the sale in execution were not binding, on the plaintiff. There was an appeal by defendants 5, 6 and 8. The appeal was dismissed by the Subordinate Judge. The present second appeal is filed by defendant 8 only. In this second appeal we are concerned only with the purchase by him in execution of the Small Cause decree. Both the lower Courts find that the Small Cause decrees were obtained by the fraud of the plaintiffs in. those suits namely, the present defendants 5 and 6. Those suits were filed; against the three brothers. The present plaintiff being a minor, defendant 1, the eldest brother, was originally proposed as his guardia and. litem. He refused to be guardian and alleged that the minor was under the protection of his mother. The plaintiffs then proposed that the mother should be appointed as guardian. The mother appeared in Court and filed counter petitions, Exs. C-4 and D-5, in which she stated that the minor was not under her protection but under the protection of her daughter Rathamma residing at Bhimavaram and that the said Rathamma should be appointed guardian of the minor. The plaintiff thereupon filed another petition in which he merely stated that the mother refused to receive notice saying that she would not act as guardian and that the summons was returned. He made no mention of the fact that according to the mother the minor was under the protection of his sister and that the sister was to be appointed as guardian. This fact was suppressed in his petition. The result was that the Subordinate Judge appointed a clerk as Court guardian. The written statement filed by the Court guardian and the judgments in the suits are not now available, though all the rest of the record has now been exhibited. When I called for them I got a report that they were destroyed. The Subordinate Judge says: The plaintiff obtained the appointment of the Court guardian on false allegations that there was no near relation of the minor who could serve as his guardian.

(2.) This statement is strictly incorrect. The District Munsif says that the Court guardian filed vakalats in those suits which were not properly attested and duly stamped. All that the vakil did in those suits was simply to put the plaintiffs in proof of their claim.

(3.) I do not know how the District Munsif got this information. Perhaps, he looked into the original judgments and written statements which were then not destroyed. As I have already stated, both the District Munsif and the Subordinate Judge held that the decrees were not binding on the plaintiff on the .ground that he was not properly represented. The Subordinate Judge relies on the decision in Ririchand V/s. Manakkal Raman Somayajipad A.I.R. 1923 Mad. 553. They also find that defendants 1 and 2 were living a life of reckless extravagance and both of them, or at least defendant 2 was addicted to women and drink.