NAGAMMA BAI Vs. SRAJARAM RAO

JUDGEMENT

(1.) The second and third defendants are the appellants. The plaintiff brought O.S. No. 40 of 1943 out of which this appeal arises, in the Court of the Subordinate Judge of Tanjore to direct his brother the first defendant to render an account for the management of his estate during his minority and also to recover monies that may be found due and payable to him and for enforcing the security bond given to the Court when he was, appointed the plaintiff's guardian in O. P. No. 502 of 1915. The suit was dismissed, the learned Subordinate Judge holding that no charge was created on the properties by the security bond, that the suit was barred by limitation, that the plaintiff had attained majority in 1927 more than 12 years prior to the institution of the suit and that the suit for accounts was not maintainable as the accounts had been already settled and satisfaction rendered. The plaintiff appealed in A.S. No. 222 of 1944 and the District Judge, Tanjore, set aside the decree of the Subordinate Judge and remanded the suit for fresh disposal. He found, differing from the trial Judge on the construction of the security bond that there was a charge on the property. He also found that the suit was not barred as the bond had been assigned by the District Judge on the plaintiff's application to him within 12 years prior to the institution of the suit. He permitted the plaintiff to amend the plaint in order to confine his claim to a decree for Rs. 4,500 instead of the general prayer for account. This amendment had been asked for in the trial Court itself but had been refused.

(2.) The appellants are purchasers of suit properties from Court auction purchasers. The plaintiff Rajaram Rao was born on 1 June, 1906 and in O. P. No. 502 of 1915, his elder brother Venkata Rao applied to be appointed as his guardian. A security bond, Ex. P-1 was executed by him to the District Judge on 7 August, 1916, and he was appointed guardian by the order of the Judge Ex. D- 5 dated 18 August, 1916. The plaintiff attained majority on 1 June, 1927. In the meantime the first defendant mortgaged item 1 of the plaint schedule which is a house to T.M.G. Nagaraja Rao for Rs. 1,200. This constituted one of the items of property which was given as security in the guardianship proceedings. On 1st March, 1927, the first defendant executed a promissory note for Rs. 2,000 to Somanatha Vyas. After the plaintiff attained majority the first defendant conveyed to the plaintiff by sale deed dated 16 January, 1928, Ex. P-4, 12 out of the 13 suit items for a sum of Rs. 14,000. It was recited in that document that in respect of the first defendant's management of plaintiff's property during his minority it was agreed that a sum of Rs. 12,000 was due and payable by the first defendant. Out of that a sum of Rs. 9,000 was to be adjusted towards the consideration for this sale deed. The balance of Rs. 5,000 was to be paid in discharge of certain other secured and unsecured debts of the first defendant. Even with regard to the balance of Rs. 3,000 that had to be paid out of the agreed sum of Rs. 12,000 in respect of the first defendant's management of the plaintiff's properties, the first defendant subsequently assigned certain mortgages to the plaintiffs on 21st October, 1930.

(3.) Somanath Vyas, the promisee under the promissory note dated 1 March, 1927, filed O.S. No. 64 of 1928 in the District Munsiff's Court, Tanjore, under the summary procedure. Security was demanded and given by the plaintiff himself. After obtaining a decree in that suit Somanath Vyas first executed it against the property of the plaintiff which had been given as security in that suit and for the balance of Rs. 800 odd that was due he attached the suit items 1 to 13. Claim proceedings followed and the claim was allowed. Thereupon Somanath Vyas filed O.S. No. 59 of 1934 in the District Munsiff's Court, Mannargudi to set aside the claim order and to declare the sale by the first defendant to the plaintiff under Ex. P-4 to be void as being in fraud of creditors. On 12 February, 1931, through Ex. D-1, the plaintiff had made a settlement on the wife of his brother, the first defendant of all the items comprised in the security bond Ex. P-1 except items 1, 3 and 7 and also of his other properties. The validity and binding nature of this settlement deed was also impugned by Somanath Vyas in O.S. No. 59 of 1934. That suit was decreed by the trial Court on 19 March, 1935, (Ex. D-2) holding both Ex. P-4 and Ex. D-1 to be in fraud of creditors. An appeal against that decree in the Sub-Court, Tanjore failed (Ex. D-2 (a) dated 30 March, 1937). After the failure of his security the plaintiff applied to the District Court on 14 August, 1936, for assignment of the security bond executed by the first defendant in O. P. No. 502 of 1915. The assignment was ordered on 21 October,; 1936, and the assignment deed was executed by the Court, Ex. P-1 (a) on 18 November, 1936. This deed was not registered although the security bond itself was registered.