KUMARA KANGAYA GOUNDAR Vs. ARUMUGHA GOUNDAR

JUDGEMENT

(1.) THE substantial point in this second appeal is whether the decree in O. S. 386 of 1953 on the file of the Sub Court Coimbatore is vitiated and a nullity as against the plaintiff for want of proper and effective representation therein of the plaintiff who was a minor during its pendency. The plaintiff who seeks to have the decree against him set aside contends that, when his father as his natural guardian was available and in every way interested in his welfare as his only son, his paternal grandfather was appointed as guar-dian and the gross negligence of this guardian in the conduct of the suit resulted ia a decree being passed against him.

(2.) FIRST the relevant facts of the case may be set out briefly. The properties in dispute in this suit belonged to one Palaniswami Goundan. He settled the suit properties on his granddaughter, the second defendant in the suit and one muthuswami who had been proposed as her husband, both of them minors, under the settlement deed dated 13-5-1936, conferring absolute rights in the properties on the second defendant and her proposed husband. The second defendant was represented for the settlement by her mother Valliammal as guardian and the proposed husband Muthuswami was represented by his father Ponnuswami as guardian. Along with the settlement, a maintenance deed came to be executed by the guardians for maintaining the settlor Palaniswami, The marriage of the second defendant with Muthuswami as proposed took place shortly after and the plaintiff is the child bora to them on 30-10-1940. Disputes arose between the two grandsons, the plaintiffs paternal grandfather ponnuswami and the plaintiffs maternal grandmother Valliammal, bringing about estrangement between the second defendant and her husband. The plaintiff's mother the second defendant, who had a half share in the properties under the settlement deed, usufructuarily mortgaged the same to the third defendant in the present suit under the original of Ex. B-8 on 30-6-1943 for Rs. 2,000. The family dispute finally got settled in a way and the second defendant and her husband, as the father and mother of the plaintiff, executed the settlement deed Ex. A-6 on 10-7-1943 in favour of their son, the present plaintiff. But the settlement deed had to be compulsorily registered. For the purpose of this settlement, the present plaintiff who was a minor then was represented by his paternal grandfather ponnuswami as guardian, The first defendant got an assignment of the mortgage above referred to and filed the suit O. S. No. 386 of 1953 for recovery of the mortgage amount against the present second defendant and her minor son, the plaintiff, the settlee under Ex. A-6. The second defendant remained ex parte in that suit and in that mortgage suit the present plaintiff was represented by his paternal grandfather Ponnuswami as guardian ad litem. The suit was hotly contested on behalf of the present plaintiff, the main plea in the mortgage suit on behalf of the plaintiff being that the mortgage was a sham and nominal transaction, not supported by consideration and had been antedated, having been executed after the present second defendant had parted with the title to the property under the settlement deed Ex. A-6 in favour of present plaintiff. The defence in the mortgage suit failed in the trial Court and in appeal, and the second appeal therefrom failed at the admission stage itself. It is seen from the records that senior advocates had been engaged on behalf of the present plaintiff at all stages. At the stage of the second appeal, the grandfather Ponnuswami was dead and the father Muthuswami himself preferred the second appeal as guardian ad litem of his minor son. And so the suit to set aside the decree.

(3.) IN this suit for setting aside the mortgage decree by the plaintiff after coming. of age on the substantial issue of fact whether there was gross negligence on the part of the guardian at litem of the plaintiff in the conduct of the suit and the appeal therefrom, the learned District Mun-sif, Dharapuram, in a carefully considered judgment, finds against the plaintiff. He holds that there was no gross negligence on the part of the guardian of the plaintiff in the conduct of the suit and the appeal. This finding has been confirmed by the learned Subordinate Judge in appeal. He remarks that he cannot find anything in the oral evidence adduced in the case to show as to what facts or documents were omitted to be placed before the Court and as to what acts or omissions on the part of the guardian amounted to gross negligence. He concludes that he was satisfied on the evidence adduced in the case that there was nothing to establish that any prejudice was caused to the appellant by any omission on the part of the guardian ad litem appointed in the case, He remarks that the guardian had done everything which he could reasonably be expected to do in the interests of the minor. This issue being a finding of fact, naturally the learned counsel confined his challenge of the judgments of the Courts below to the question whether the minor plaintiff was properly represented in the mortgage suit.