HAMEEDU ROWTHER Vs. PADMANABHAN

JUDGEMENT

(1.) These second appeals arise out of two suits for redeeming the same mortgage by two sets of heirs of the mortgagor. S. A. No. 511 of 1961 arises out of O. S. No. 118 of 1954; and S. A. No. 880 of 196l arises out of O. S. No. 535 of 1953. In the former suit the Trial Court granted a decree for redemption, while in the latter the Trial Court granted a declaration that the plaintiffs therein had also right in the equity of redemption, but dismissed the suit, as all the necessary parties were not impleaded. In both the suits the contesting defendants filed appeals before the lower appellate court; and the lower appellate court has allowed both the appeals. Against those decisions the second appeals have been brought by some of the plaintiffs in the respective suits.

(2.) The property originally belonged to a Syed Meeravu Rowther; and he and one of his sons by name Syed executed the suit mortgage, Ext. P-1, in 1079 to third parties. Syed Meeravu died; and Syed sold the equity of redemption to the mortgagees in 1087. In 1097 five plaintiffs, the heirs of Syed Meeravu, filed O. S. No. 517 of 1097 for setting aside the sale. In that suit the first plaintiff in O. S. No. 118 of 1954 was the fifth plaintiff; and he was then a minor. He was represented by the third plaintiff therein, the son of Syed, as next friend. The suit was subsequently compromised under Ext. P.3 in 1102, which provided that the sale be set aside, that the plaintiffs therein redeem the property on payment of Rs. 1,050/- to the mortgagees towards mortgage money and value of improvements on or before 10th Kanni 1103, and that in default, the mortgagees be entitled to execute the decree against the hypotheca and realise the amount. The amount was not paid; and in 1112 the mortgagees started proceedings in execution, brought the property to sale and purchased it themselves. In Edavom 1112 they obtained delivery of possession as well. The present suits have been brought to redeem the mortgage ignoring the compromise decree and the sale in execution thereof.

(3.) It may be noted that there is no case that the decree and execution proceedings in O. S. No. 517 of 1097 were tainted by fraud or collusion. The case is only that the said decree was null and void, because the first plaintiff (the fifth plaintiff therein) was not properly represented and that the compromise went beyond the scope of the suit. The third plaintiff in that suit was the next friend of the minor. Some attempt has been made before me to show that the interest of the next friend was adverse to that of the minor. It is clear that the next friend had no interest adverse to that of the minor in the subject matter of that suit, whatever might be the position otherwise. In that suit the next friend, the minor and the other plaintiffs were all having the same case that the sale deed by Syed in favour of the mortgagees must be set aside. Therefore, there is no substance in the plea that the interest of the next friend was adverse to that of the minor so that the decree with the said next friend on record was not binding on the minor.