JANAMMA RADHAMONY Vs. KRISHNAN NARAYANAN

JUDGEMENT

(1.) This second appeal arises out of a suit O.S. No. 38 of 1964, Munsiff's Court, Kottarakkara filed by certain minors represented by their next friend for setting aside the decree in O.S. No. 86 of 1962 on the file of the same court as well as a court sale held in execution thereof and for cancellation of a mortgage deed evidenced by Ext. D1 on the basis of which the said decree was passed.

(2.) Plaintiffs 1 to 5 (minors) are the children of the 4th defendant, Lekshmy Janamma, by her husband Govindan Kunju Raman who is the 3rd defendant in the suit. The 5th defendant is the mother of the 4th defendant. The plaint property was obtained by the sub-tarwad consisting of the plaintiffs and the 4th defendant as per the partition deed Ext. P1 dated 14th October, 1952. Under the said document a life interest has been reserved in favour of the 5th defendant with power to encumber the property to the extent of Rs. 100/-. On 17-5-1958 defendants Nos. 3 to 5 executed a chitty hypothecation bond in favour of the 1st defendant for securing the payment of the future subscriptions amounting to Rs. 175/- due in respect of a chitty which had been prized by the 3rd defendant. It was recited in the bond that the prize amount had been received for the purpose of meeting the expenses of renovation of the residential building of the executants. Subsequently, on 9 1 1960 defendants 3 to 5 executed the mortgage deed Ext. D1 in favour of the 1st defendant for Rs. 600/- out of which Rs. 200/- was adjusted towards the debt due under the hypothecation bond Ext. D2, another sum of Rs. 200/- was stated as already received from the 1st defendant and utilised for paying off certain debts incurred by the executants in putting up the residential building in the mortgaged property and the balance of Rs. 200/- was adjusted towards the amount borrowed by the executants from the 1st defendant as per a promissory note for meeting the expenses of completing the construction of the said building. The 1st defendant instituted the suit O.S. No. 86 of 1962 in enforcement of the mortgage Ext. D1, obtained a decree, brought a portion of the plaint schedule property to sale in execution thereof and purchased the property at the court auction.

(3.) The present plaintiffs had been impleaded as eo nomine parties in O.S. No. 86 of 1962 and their mother (4th defendant) was originally shown as their guardian. Though summons was issued to the 4th defendant in her capacity as the guardian of the minors she did not enter appearance in the suit. Thereupon an application . was made to court by the plaintiff in O.S. No. 86 of 1962 (present 1st defendant) for the appointment of a court guardian for the minors and an officer of the court (2nd defendant herein) was appointed as the guardian of the minor defendants. A written statement was filed by him on behalf of the minors of which Ext. P6 is a copy.