PIDIKITI KOTAYYA Vs. ANNE RADHAKRISHNAMURTHI

JUDGEMENT

(1.) Defendants 2, 3, 4 and 5 are the appellants. The plaintiff is the son of one Gopayya. Gopayya's brother is Rathayya, defendant 1. The wife of Gopayya is Seetaramamma. The suit out of which this appeal arises was instituted by the plaintiff for recovery of one half share of the suit properties. The circumstances in which the suit was instituted are these: In O.S. No. 50 of 1911 defendant 5 obtained a decree against the plaintiff's father and defendant 1 for recovery of possession of the suit property and other properties together with mesne profits and costs. The ground of his claim was that he was entitled to the properties as the reversioner to the last male owner and that the plaintiff's father and defendant 1 were in possession as trespassers. The decree was dated 24 February 1914. After the decree defendant 5 applied for possession of the properties, on 26th September 1914, but did not ask for mesne profits and costs. But immediately after delivery of possession on 27 September 1914, the property contained in Sch. A was gifted by defendant 5 to Gopayya and defendant 1. Gopayya died on 6 December 1915. The plaintiff was not born at that time. Later on defendant 5 took steps to execute the decree in O.S. No. 50 of 1911 for the mesne profits and costs. It is the case of the plaintiff (respondent 1) that there was an adjustment between the parties at that time, that the decree for mesne profits and costs should not be executed and that the proceedings in, execution were taken to deprive Gopayya's widow and subsequently the plaintiff of possession of these properties. The decree for mesne profits was transferred from Masulipatam to Bezwada for execution on 12 January 1916. On 22 February, 1916, the defendant applied for attachment of Schs. A and B properties and on 9 April 1916 the properties were attached. Before the sale of the attached properties, the plaintiff was born on 5 August 1916, and he was not specifically brought on the record as representative of his father. It is one of the disputed questions in the case, to which we shall have to refer later, whether the widow Seetaramamma continued on the record in the execution proceedings. On 4 November 1916 the properties were sold, and the sale was confirmed on 4 December 1916, and the sale certificate was issued on 2 February, 1917. Defendant 5 got possession of Schs. A and B properties on 26 February 1917, and later on portions of those properties were sold to the various appellants under different deeds.

(2.) The plaintiff's contention is that the sale of these properties is not binding on him because his interests were not represented by the widow and that he himself was not represented as a party. For these reasons he says that the sale is a nullity. He has also taken the ground that the adjustment pleaded is true and that the proceedings were carried on by defendant 5 with the knowledge that there was such an adjustment and that therefore the proceedings were fraudulent. In reply, the appellants contend that defendant 1 was admittedly on the record in the execution proceedings and was competent to represent the interests of the minor plaintiff, that even if he was not competent, the widow Seetaramamma continued to be on the record after receiving notice of the execution proceedings and was therefore competent to represent the interests of the minor; and that no case of fraud with regard to the adjustment has been made out. There are three points therefore for determination: 1. Whether defendant 1 sufficiently represented the interests of the minor; 2. Whether notice of execution proceedings had gone to Seetaramamma and if so, whether she could represent the interests of the minor; and 3. Whether the proceedings were vitiated by the fraud alleged by the plaintiff. We will deal with each of these questions separately.

(3.) On the first question we are of opinion that defendant 1 could not in law sufficiently represent the interests of the minor. The reason is this: The decree that was being executed was not one which was obtained against the joint family manager nor was it directed against the joint family property. That decree was obtained against the father of the plaintiff and defendant 1 as trespassers and not as persons representing properties of the joint family. In these circumstances the decisions relied on by the learned Counsel for the appellants in Ramanathan Chettiar V/s. Ramanathan Chettiar , Soorayya V/s. Chinna Anjaneyalu AIR 1919 Mad 16 and the other allied decisions do not apply to the case.