PUPPOOTH ALIAS KOMAUCHERI Vs. VAYISRAVANATH MANAKKAL RAMAN SOMAYAJIPAD

JUDGEMENT

(1.) This is an appeal against the decree of the Subordinate Judge of Calicut in Original Suit No. 30 of 1919 on his file dismissing the plaintiff's suit and the plaintiff is the appellant before us.

(2.) Plaintiff became the sole surviving member of his Kommancheri Tarwad on the death of his mother and sister in March 1907; and he was then solely entitled to the Tarwad properties. He was at the time a minor of eight years of age and his father, the second defendant, who had previously managed the affairs of his Tarwad as his mother's agent, continued in the management of his affairs as his de facto guardian. Being a member of a Marumakkatayam Tarwad, his father was not his legal guardian. At that time there was a mortgage-debt on the Tarwad lands in favour of one Bhattathiripad, of Rs. 9,000 which was admittedly binding. To pay off this debt and to meet other alleged necessities, the father acting as plaintiff's guardian borrowed in March 1908, a sum of Rs. 12,000 from the first defendant and executed a usufructuary mortgage to him, copy Exhibit A. Two days afterwards he also executed a Verumpattom chit or lease for himself and as plaintiff's guardian and took back the properties on lease; see copy Exhibit G. Under this arrangement plaintiff was newly made liable with his father to pay a rent of Rs. 1,200 a year. Such an obligation did not exist under the Bhattathiripad's mortgage. The rent was allowed to fall into arrears by the second defendant and he executed a pro-note, copy Exhibit I, for Rs. 3,092-12-11 to the first defendant, again acting for himself and as guardian of his son. The first defendant brought Original Suit No. 37 of 1915 en this note and got a decree against both the father and the son. In this suit the Head Clerk of the Court was appointed as the plaintiff's guardian. Subsequently, the first defendant attached the properties mortgaged to him subject to his own mortgage and got them sold and purchased them himself in Court auction.

(3.) Plaintiff brings this suit as a major and prays that the mortgage Exhibit. A, may be declared invalid to the extent of Rs. 2200 and odd as not being supported by proper consideration except as to the amount due under the prior mortgage which had been paid off. He also prays for a declaration that the lease Exhibit, G, is not being on him at all, as it is not for his benefit or necessity but, on the other hand, it imposed on him an onerous liability to pay Rs. 1,200 a year as rent. He states that the decree. Exhibit IX, was obtained by fraud that he was not represented in it by a proper guardian and that the Court guardian appointed for him acted with gross negligence in the conduct of the case and he, therefore, claims that it is not binding on him; and he further prays that the sale held in execution of that decree may be set aside as invalid.