SUBBIAH PANDARAM Vs. ARUNACHALA PANDARAM

JUDGEMENT

(1.) THE most important schedule is the A Schedule which comprises properties sold at Court auction. At the same auction, certain other properties were sold which have been held to be trust properties, but we are not now concerned with those. When the A Schedule properties were attached, the plaintiff was a minor, but his grandmother presented a claim petition on the 9 of February, 1897 and this petition was dismissed and the properties were sold. Subsequently a suit was filed by the plaintiff's grandmother to set aside the order on the claim petition, O.S. No. 269 of 1899 in the District Munsif's Court of Negapatam. That suit was also dismissed. THE plaintiff, who attained majority nearly three years before filing the suit, now comes to Court to recover possession of the properties which were then gold. THE Subordinate Judge has found that, as there was an order against the plaintiff under Section 283 of the Civil P. C., 1882, the plaintiff ought to have brought his suit within one year of attaining majority under Art. 11 of the Schedule to the Limitation Act. It is now argued for the appellant that the order passed on his claim petition in 1897 was one passed without investigation and is consequently not an order under Section 283. THE claim petition referred not only to the A Schedule properties but to all the properties which were said to be dedicated to charity. THE petition was filed on the 9 of February, and returned for correction and various adjournments were granted, one at least, for securing the attendance of the petitioner's witnesses, and final orders were passed on the 3 of May. It is not disputed that the order with regard to the charity properties was passed after investigation and that seems quite clear from the order itself, but it is said that there was no investigation of the plaintiff's claim in respect of the A Schedule properties. He had claimed that they had been attached in execution of the decree for a debt incurred by his father and that the debt was not true and was fraudulent. He further added an inconsistent statement that it was an immoral and illegal debt. He thus first denied the existence of the debt and then alleged that it was an illegal and immoral one. THE Subordinate Judge in dealing with this allegation decided that "as a father has a disposing power of the ancestral property in respect of his debts which are not tainted with immorality, the Court can sell in execution whatever he can lawfully sell," and he also held that, "although the son was not a party to the suit or decree he ought not to be debarred from trying the fact as to the nature of the debt in a suit of his own." It is contended that this order amounts to a refusal to adjudicate on the claim and merely refers the petitioner to a suit. So far as it is alleged that there was no debt, it is certainly an adjudication and decides that there was a debt, and that the son is liable unless he can prove the contrary. THE Subordinate Judge did not think it necessary to discuss the nature of the debt but said that the claimant should file a suit, if so advised. That is not to say, that he did not investigate the claim put in and we are satisfied that there was an investigation within the meaning of Section 278. THE order was, therefore, one under Section 283 and any suit filed in respect of that order ought to be filed within one year of the plaintiff's attaining majority. It is then contended that as a suit was filed within one year by the plaintiff's grand mother, that would in some way extend the period of limitation; but there is nothing to support this contention. It is difficult to see how the filing of a suit which was decided against the claimant would give a right in the future to extend the period of limitation. A further argument is put forward that the plaintiff's guardian was negligent in preferring the claim petition which she need not have done. If she had been enabled to establish the claim, the property would have been released from attachment and not passed into the hands of strangers. It is, therefore, difficult to understand how there was any negligence in trying to secure the property from passing into the hands of strangers for the benefit of the minor plaintiff, No doubt it might be now to the plaintiff's advantage if no claim had ever been preferred and possibly his present suit would be in time; but to hold that the guardian, who did not take all these legal questions into consideration, was guilty of gross negligence although she was doing her beat in the interest of the minor, is rather a far fetched argument and we cannot accept it.

(2.) [The remaining portion of the judgment is not material for our report].