PALANI GOUNDAN AND ANR. Vs. VANJIAKKAL AND ANR.

JUDGEMENT

(1.) THIS is a Second Appeal preferred against the decree and judgment of the learned Additional Subordinate Judge of Coimbatore in A.S. No 105 of 1950 confirming the preliminary decree and judgment of the learned District Munsif of Coimbatore in O.S. No 521 of 1946.

(2.) THE facts are: -The property in dispute belonged to one Karuppa Goundan, the plaintiff's father. He died in 1931 leaving surviving him his widow Chinna Karupayee, a minor son Chinnan alias Karuppan born on 25th September, 1925, and two daughters, the plaintiff and the 4th defendant. The widow managed the properties on behalf of the minor son till her death in 1939. Subsequently the plaintiff was managing by cultivating the property and maintaining her minor brother Chinnan. The plaintiff and the 4th defendant fell out. It is the case for the plaintiff that in order to defeat her sister she executed a registered lease deed Exhibit B -5 dated 19th June, 1942, in favour of Kandaswami Gounder for five years in respect of the suit property at Rs. 80 per annum. This family dispute was settled by an arrangement dated 29th June, 1942 (Exhibit A -1). The first defendant who is related to the parties, on the intervention of the mediators, was made the de facto guardian of this minor Chinnan and he was entrusted with this property for being managed by him. He undertook that the maintenance of the minor would thereafter be his concern and that he was paying that day a sum of Rs. 100 found due to the plaintiff and that without alienating the property would hand it over to the minor Chinnan on his attaining majority. On 2nd July, 1942, under Exhibit B -1 the de facto guardian executed a sale of this property in favour of the 3rd defendant for Rs. 2,600 made up of (1) a sum of Rs. 572 -14 -0 directed to be paid in discharge of a mortgage dated 9th September, 1931, executed by the minor's father for Rs. 500, carrying interest at 10 per cent per annum; (2) Rs. 237 -14 -0 towards a promissory note dated 24th June, 1939, executed by the minor's mother; (3) Rs. 100 towards a promissory note to the minor's sister viz -, the plaintiff; (4) Rs. 189 -3 -4 to be paid before the Sub -Registrar and which went towards the payment of Rs. 200 to the 4th defendant towards the jewellery to be given to her at the time of her marriage which took place then and in regard to which the aforesaid sum of Rs. 100 had been incurred by the plaintiff and her husband; and (5) the balance of Rs. 1,500 adjusted by execution of a mortgage in favour of the minor bringing an interest of Rs. 90 per annum. The minor died by throwing himself into a well on account of stomach ache on 7th March, 1945. It is undisputed that for a period of two years after the execution of the sale deed the 4th defendant has been receiving the interest amount of Rs. 90 per annum under the mortgage and been expending it towards the maintenance of her minor brother. The 3rd defendant sold the property to the 2nd defendant on 26th May, 1943, under Exhibit B -2. In 1946 the plaintiff filed this suit to recover possession of the suit property with mesne profits, past and future, and costs. The 1st defendant appears to have died during the pendency of the suit leaving no legal representative. Both the Courts below upheld the claim of the plaintiff and a preliminary decree in her favour has been given. The defeated defendants 2 and 3 have filed this second appeal.

(3.) POINT (a): "The expression de facto guardian" as pointed out by Viswanatha Sastri, J., in Palaniappa Goundan v. Nallappa Goundan : AIR1952Mad175 ,