(MADDALI) VISWESWARA RAO Vs. (MADDALA) SURYARAO

JUDGEMENT

(1.) This is an appeal from the decree of the Subordinate Judge of Ellore in O.S. No. 7 of 1926, an action which was in the nature of a partition action, asking inter alia for a declaration that a certain mortgage is void, that the decree granted in an action brought by the mortgagee upon the mortgage should be set aside, that the consequential auction held following upon that decree should be set aside, and that certain alienations made before that suit was brought in order to pay the moneys due under that mortgage should also be set aside. The decree was granted in the suit as before mentioned brought by the mortgagee, in which suit there was a minor, which minor was represented by a Court guardian which Court guardian was a clerk of the Court having been appointed in consequence of the failure of the minor's uncle adequately to represent the minor's interests. The reason why it is now said the decree should be set aside is that that Court guardian was negligent and the ground upon which this charge is made is that when the case came on for trial the counsel who had represented the Court guardian said he had no instructions. That minor and the present plaintiff are the same. The ground of attack in law is that it was an alienation by the mortgagor for which there was no necessity, he being the managing member of the joint Hindu family comprising himself and his son. At the time of the transaction those were the two members of the joint Hindu family. The son subsequently died without having either ratified or attacked the alienation and some considerable time after his death, a time exceeding the period of gestation, the present plaintiff was born into that family.

(2.) The following questions arise : (1) Can an after-born son, not conceived during the lifetime of his brother which brother was, apart from the father, the only other coparcener of the joint Hindu family, sue to set aside, as being without necessity, an alienation effected by the father without the consent of the son then living? (2) If such a person can so sue, what is the cause of action and when in respect of that cause of action does time begin to run, it being common ground that the proper Art. for the purpose of limitation is Art. 120? (3) Assuming there is a great doubt as to the capacity of such an after-born son to sue, but that in the result and after full debate it were decided that he could sue, is a Court guardian to be convicted of gross negligence simply because he does not defend the action on behalf of such minor when a defendant in an action by a mortgagee seeking to enforce the liability? On the threshold it may be said that there are two cases and two cases only, of which only one is reported, brought to our attention in which the question has been considered whether such an after-born son has a cause of action, that is to say, in circumstances where there is a period exceeding the period of gestation between his birth and the death of the only other coparcener (his brother) except the father. The unreported case is a decision in Appeal No. 179 of 1928 by a Bench of this High Court composed of Curgenven and Sundaram Chetty, JJ. in which the learned. Judges say as follows: If the gift was valid until avoided, Ramachandra Reddi (the son living at the time), no doubt had an opportunity of avoiding it, but upon his death that right must have expired, and on the occurrence of that event, there being no one in existence who could avoid the deed, it must have become valid for all purposes just as if it had been made at a time when no other coparcener existed. That being so, the plaintiff who was subsequently born would have no cause of action for the relief now claimed, and the proper course will be to dismiss his suit.

(3.) The reported case is Mukund Singh V/s. Waziruddin 1933 Lah 359 at p. 360. There a Bench of the Lahore High Court observed: The plaintiff son M was not alive at the time of this alienation. The eldest son M S was. There being two definite gaps between the death of A S and the birth of B S and the death of B S and the birth of M, and those gaps not being bridged over by the fact that the subsequently born son had been begotten or any reversioner being shown to have been in existence, the question is whether the plaintiff can challenge the alienation merely by virtue of his elder brother having been in existence at the time of the alienation though he died in the following year. It appears to us quite clear that he cannot. Allowing the usual nine months, there was an interval of eight or nine months between the death of A 8 and the date on which B S was begotten; and similarly, there was an interval of eight or nine months between the death of B S and the begetting of M. It not being shown that there was a reversioner in existence during these intervals, the alienations could not be challenged during such intervals, and therefore no subsequently born son could possibly do so as the alienations had become indefeasible and absolute.