NAGAMMA SHEDTHI Vs. KORATHU HENGSU

JUDGEMENT

(1.) The suit out of which this appeal arises was instituted by respondents 1 to 6 before us in the Court of the Subordinate plaint however, vaguely, so much as in a finding of gross negligence on the part of defendants 2 to 4 in remaining ex parte at the time of trial of O. S. No 387 of 1936, District Munsif Court, Mangalore, after and although they had raised various defences in their written statement. The learned Subordinate Judge has in a very exhaustive judgment scrutinised in detail the merits of all the pleas raised in the written statement in the former suit in the light of the evidence now adduced and has upheld them all as valid pleas in fact which should have resulted in a non-suit of the plaintiff in the former action but for the gross negligence of defendants 2 to 4. The raison d'etre of the decision of the learned Subordinate Judge is contained in three short paragraphs of his long judgment paras, 37, 11 and 42 which may be here reproduced.

(2.) The mere fact that the words 'gross negligence' are not expressly used in the plaint cannot take away the right of plaintiffs to avoid the decree. In Malabar and Aliyasanthaua Law by P. R. Sundara Ayyar at p. 90 it is stated as follows: 'In cases where the action is brought to enforce obligations incurred by the karnavan or to enforce the consequences of a default of his, the dividing line between fraud and failure to plea (sic) would generally be hard to delineate.' It is clear that a decree against a karnavan is binding on the tarwad because of the representative character of the karnavan. He is the bead and representative of the family, but when gross breach of duty is proved, as in this case, that amounts to fraud on the family and must be treated as fraud upon his power. The decree in O. S. No. 387 of 1936 was obtained fraudulently. Defendants 2 to 4 failed to utilise the means of proof at their disposal and have lost the tarwad properties, as a result of their negligence. In Durgamma v. Kechamayya, 48 M. L. J. 351: (A. I. R. (12) 1925 Mad. 792) gross negligence was held to amount to fraud. The above argument on behalf of defendant 1 is not entitled to force."

(3.) Mr. T. Krishna Rao, the learned advocate for the appellant, has attacked the soundness of the law which found favour with the learned Subordinate Judge by the citation of a long list of decisions with the more important of which we shall presently deal. Mr. K. Y. Adiga for the respondent has with his usual frankness agreed that, if the view of law adopted by the learned Subordinate Judge is rejected by us, the appeal must be allowed without any need for us to go into the evidence about the pleas raised by defendants 2 to 4 in their written statement in the former suit but not attempted to be proved by them at the trial of that suit.