GARIMELLA ANNAPURNAYYA Vs. MUNSUNURI VENKATASUBRAHMANYAM

JUDGEMENT

(1.) The plaintiff sued in this case for a declaration that he was adopted son of the late G. Bhimmayya and that the gift made by Bhimmayya on 5 June 1906 in favour of his wife Seethamma was invalid and for recovery of the property from the persons in possession.

(2.) Original Suit No. 39 of 1908 on the file of the Subordinate Judge of Cocanada was a suit instituted by the natural father of this plaintiff as his next friend during his minority for the same reliefs as those asked for in the present case. It was compromised by the plaintiff's taking 2 acres, and a house site and surrendering the rest of his claims. The Court gave leave to the next friend of the plaintiff to enter into this compromise upon the certificate of his Pleader that the terms were beneficial to the minor. Under that compromise the minor plaintiff gave up his claim to the rest of the properties of the late Bhimmayya. The Subordinate Judge has held in the present suit on a preliminary issue that the compromise decree in O.S. No. 39 of 1908 was not vitiated by any fraud, collusion or gross negligence on the part of the plaintiff's next friend (who is the 4 defendant) in the suit and, therefore, the present suit was not maintainable as the plaintiff was not entitled in the absence of fraud, collusion or negligence on the part of his next friend, to get the compromise decree set aside and have a fresh decision upon the same points which were at issue in the former case.

(3.) In appeal it is urged that the Subordinate Judge was in error in not deciding the other issues in the suit, especially issue (7) which was whether the two cents of land in Konkuduru village, Bikkavole Taluk, belonged to the donor and were really meant to be conveyed in the gift deed or were nominally inserted in order to give jurisdiction to the Bikkavole Sub- Registrar. The plea of fraud and collusion on the part of the plaintiff's next friend in the prior suit was given up at the trial. It is now urged that the next friend's failure to plead the invalidity of the gift deed on account of the fraud upon the Registration Law committed by inserting two cents of land in Konkuduru which did not belong to the donor for the purpose of getting the document registered in the Bikkavole Sub-Registrar's office was an act of gross negligence which vitiated the whole proceedings and made the decree not binding on the minor plaintiff. Secondly it is urged that the plaintiff's natural father had in consequence of the adoption lost his right to represent the minor plaintiff in the former suit and consequently he had no power to compromise the suit on the minor's behalf.