MARY THREYS FERNANDO Vs. C I PHILIP

JUDGEMENT

(1.) The appellant is a plaintiff who has been given the declaration she sought, namely, that a decree obtained against her by the 1st defendant while she was a minor, and the execution sale in pursuance thereof, were null and void as against her, as also the consequential relief of possession of the property in suit together with future mesne profits, but is nevertheless aggrieved with the direction of the court below that the 1st defendant be allowed to continue the prior suit from the date of issue of summons, and with its denial to her of past mesne profits.

(2.) The property in suit, a house, belonged originally to the plaintiffs mother. (That is the plaintiffs case and we my assume it to be so for the present purpose although it would appear that in his written statement the 1st defendant contended that the property really belonged to the plaintiffs father, the 2nd defendant.) The plaintiffs parent; mortgaged it to a bank and the 1st defendant who got an assignment of that mortgage filed a suit, O.S. 64 of 1115 on the file of the District Court. Trivandrum, and obtained the decree which has now been declared null and void by the same court. By then the plaintiffs mother was dead. Her father, the present 2nd defendant, was the 1st defendant in that suit while the plaintiff, a minor represented by her father as guardian, was the 2nd defendant.

(3.) The allegation in the plaint was that, after the death of her mother, the plaintiff was not under the care and protection of her father, a person of dissolute habits, but was in fact under the guardianship of her maternal uncle The appointment of her father as her guardian in the previous suit, O. S. 64 of 1115, was therefore fraudulent, and the decree therein had been obtained by the present 1st defendant in collusion with the plaintiffs father. It was not, however, on these allegations that the plaintiff succeeded but on the circumstance that, as Ext. D a certified copy of the guardian notice issued to him in O. S.64 of 1115 disclosed, the plaintiffs father had declined to accept the notice. His appointment as her guardian was therefore held to be illegal, and it followed that the plaintiff was not represented at all in the suit. It was on this ground that the court below declared that the decree, and the execution proceedings following the decree, were null and void and did not bind the plaintiff.