ANDALAMMAL Vs. NARASIMHARAGHAVACHARIAR

JUDGEMENT

(1.) We agree with the learned Judge s findings of facts (1) that the purchase of the house, in which the defendant claims a .right of residence, was made by the plaintiffs mother with funds belonging to the plaintiffs and for their benefit, (2) that the plaintiffs mother did not purchase with notice, express or constructive, of the defendant s alleged right. We also agree with his findings that no charge on the house was created in favour of the defendant, and that the defendant had not acquired any right of residence therein.

(2.) The contention on which the appellant mainly relied was, as the learned Judge points out, not raised in the pleadings or the issues. This being so, it is, to say the least, doubtful whether the defendant was entitled to raise it at the hearing of the suit. The contention was, that inasmuch as the 2nd and 3rd plaintiffs were, minors at the date of the purchase, the sale was void. The judgment of the Privy Council in Mohori Bibee v. Dharmodas Ghose 30 C. 539 : 5 Bom.L.R. 421 : 7 C.W.N. 441 : 30 I. A. 114 (P.O.). where it was held that a mortgage by a minor was void and the judgment of this Court in Naxakoti Narayana Chetty v. Logalinga Chetty 4 Ind. Cas. 383 : 7 M.L.T. 233 : 33 M. 312 : 19 M.L.J. 152. where it was held that a sale to a minor was void, were relied upon.

(3.) We are of opinion that, on the facts, the present case is not governed by either of these decisions. The purchase was in the name of the mother, but the purchase-money belonged to the plaintiff and his two minor brothers. On the facts one view is that the mother purchased as trustee for her sons. The other view is that the 1st plaintiff, then a major, and as managing member of his family purchased the house out of family funds, though for convenience the title-deed stood in the name of the mother. In either view the sale, in our opinion, is good, and the 1st plaintiff is entitled to sue on his own behalf and the 2nd and 3rd plaintiffs are entitled to sue by the 1st plaintiff as their next friend. This appeal is dismissed with costs.