WINIFRED COLACO Vs. NANJAPPA GOWDA

JUDGEMENT

(1.) The plaintiff whose age is given as 26 years in the plaint brought a suit in 'forma pauperis' on 30-11-1946 against one Puttaswamygowda, defendant 1, who is now dead and whose legal representatives are defendants 1 (a) to 1 (c) and against defendants 2 to 4, the minor son and daughter and widow respectively, of one William Colaco, who is now dead. His case was that the suit properties which consist of some wet and dry lands and a coffee garden which belonged to him had been, wrongfully and without any legal necessity or benefit accruing to him, sold away during his minority, by defendant 1, to the deceased William Colaco; and that as that sale was not binding on him, he was entitled to recover their possession from defendants 2 to 4 with mesne profits. He had lost both his parents when he was only 7 or 8 years old and his paternal grand-mother one Kenchamma was bringing him up. As she was very old she had executed a deed of trust in favour of defendant I, her son-in-law, who had alienated the plaintiff's properties as aforesaid in breach of his trust. The deceased defendant 1 filed a written statement wherein he justified the sale and repudiated the allegations the plaintiff had made against him of misappropriation and breach of trust. As he himself was very old and as the properties of the plaintiff were situated far off, he had found it impossible to manage the coffee estate which had deteriorated badly or to cultivate the lands so as even to pay their 'kandayam'. He therefore sold them away and out of the price purchased other more useful and conveniently situated properties for the use and benefit of the plaintiff. The sale to Colaco was therefore binding on the minor. Defendants 2 to 4 pleaded similarly. For the reasons set out above, defendant 1 had on 1-5-1932 sold the properties which were useless and lying fallow for Rs. 3,000/- to the deceased William Colaco. On the same day and for the same sum he purchased some wet and dry and coffee lands for and in the name of the plaintiff. Those were nearer and more conveniently situated. The deceased William Colaco had at great cost and personal exertion brought the lands under cultivation, cleared the forest lands and brought into existence a flourishing coffee estate. The plaintiff could not in any event recover possession without reimbursing them in respect of those improvements which they valued at Rs. 10,000/-. They also pleaded that the plaintiff's suit was barred by time.

(2.) The Subordinate Judge of Hassan made a decree in favour of the plaintiff. He held that the sale in favour of William Colaco was not binding on the plaintiff and that he was entitled to recover possession of the suit properties conditional on his depositing Rs. 1,000/-. being the estimated value of the improvements. He also held that the suit was not barred by time. Defendants 2 to 4 have appealed.

(3.) It is contended by Sri S. Srikantiah, learned counsel for the appellants, that the plaintiff's suit is barred by time. The learned Subordinate Judge was of the view that Article 144, Limitation Act, would apply to a suit like the present. But he held that in the present case there was an earlier decision of this Court between the parties in C. R. P. 109/47-48 which required that those twelve years should be calculated from the date of plaintiff attaining majority which would be somewhere in 1938. That decision was by Paramasiviah J. who was sitting alone and was, in our opinion, nothing more than a mere observation. The plaintiff's suit which had been brought in 'forma pauperis' had been dismissed by the Subordinate Judge as being time-barred on the face of it. In revision, that order was set aside and it was directed that the plaintiff's petition to sue in 'forma pauperis' should be registered as an original suit and tried on its merits. In that connection, it was observed by Paramasiviah J. that the plaintiff may have 12 years within which to bring the suit after attaining majority. It has been held in a case reported in -- 'Mahomed Nooruddin Ali v. Chenniah', 15 Mys LJ 1 (A) that "The point to be considered by a Court, where a petition is presented to file a suit in 'forma pauperis' is whether the allegations as stated in the plaint 'prima facie' show a cause of action for the suit. The Court is not expected to go into the merits of the allegations in the plaint for the purpose of admitting or rejecting the petition to sue in 'forma pauperis'. According to provisions of Clause (d) of Rule 5 of Order 33, Civil P. C., an application has to be rejected only when the allegations made in it do not show a cause of action." In making the observation referred to earlier, Paramasiviah J. must be taken to have had that limited scope in view. He did not consider the provisions of Sections 8 and 10 and Article 134. Limitation Act, nor had he any evidence before him.