KAMALAMMAL Vs. A. M. SHANMUGHAM

JUDGEMENT

(1.) THE first defendant in O.S. No. 69 of 1970, on the file of the court of the Subordinate Judge, Kancheepuram, is the appellant herein. For the sake of convenience, the parties will be referred to as they were arrayed in the suit. The first defendant and second defendant are sisters and the second defendant has married the third defendant. The two plaintiffs are the sons of the second and third defendants. One Rajakotilingam Chettiar was the father of defendants 1 and 2 and, therefore, the father -in -law of the third defendant and the maternal grandfather of the plaintiffs. It admitted that, after the birth of the first plaintiff on 6 -12 -1948, Rajakotilingam Chettiar filed O. P. No. 162 of 1949 on the file of this court under the Guardians and Wards Act and was appointed as the guardian of the first plaintiff. Equally, it admitted that, after the appointment as guardian, Rajakotilingam Chettiar, as the guardian of the first plaintiff and the third defendant, executed a sale deed in favour of one Natesa Mudaliar for Rs. 39,000 as evidenced by Ex. A -2, dated 26 -9 -1949 in respect of No. 7 Malayaperumal Street, belonging to the first plaintiff. Out of this consideration of Rs. 39,000, a sum of Rs. 12,000 was retained by Rajakotilingam Chettiar for the purpose of discharging a mortgage existing previously in favour of the Mureli Kalka Trust. The present suit was instituted by the first plaintiff for himself and as the guardian of his minor brother the second plaintiff, for the recovery of a sum of Rs. 25,216, putting forward the contention that Rajakotilingam Chettiar the erstwhile guardian of the first plaintiff, did not apply the said sum of Rs. 12,000 for the purpose of discharging the mortgage due to Murali Kaka Trust and he furnished false accounts to this court and that ultimately it was the third defendant who had to discharge the mortgage debt. Rajakotilingam Chettiar himself died on 29 -12 -1963 and it was thereafter the present suit was instituted for the recovery of the moneys from the estate of Rajakotilingam Chettiar in the hands of defendants 1 and 2. Several defenses were put forward by the first defendant in the shit, the second and third defendants remaining ex parte, two of them being, that the suit was not maintainable because on the date when the suit was instituted the first plaintiff was a minor inasmuch as he had not completed age of 21 and he was not represented the next friend and secondly that the suit could have been instituted only with the permission of the High Court which ordered O. P. No. 162 of 1949 referred to already under Section 36 of the Guardians and Wards Act, 1890. The learned Subordinate Judge of Kancheepuram negatived these defences of the first defendant and decreed the suit for a sum of Rupees 10,920 -91 with interest at 6 per cent per annum from 1 -1 -1962 It is against this judgment and decree the first defendant in the suit has preferred this appeal.

(2.) I have not referred to the other contentions as well as the facts on which the contentions were based for the simple reason that the learned counsel for the appellant advanced only two arguments before me, both of them being said to be of a legal nature. The first argument is that under Section 3 of the Indian Majority Act, a guardian having been appointed for the first plaintiff, he attained majority only on the completion of 21 years, that in this case admittedly on the date when the plaint was presented, the first plaintiff had not completed the age of 21 and he was not represented by a next friend and that therefore the suit was not maintainable. The second is that Rajakotilingam Chettiar, when he was appointed as guardian by this court, had not executed any bond and that under these circumstances under Section 36 of the Guardians and Wards Act, 1890, the suit, if at all, could have been instituted only with the leave of the High Court which appointed the guardian and that such leave not having been obtained, the suit was incompetent.

(3.) THE second point urged by the learned counsel for the appellant, as I pointed out already, is based upon Section 36 (1) of the Guardians and Wards Act, 1890. That provision states -