TIRUMALAI MUTHUVEERA PARAMASIVA VENKITASWAMI NAICKER Vs. MUTHUSAMY PILLAI

JUDGEMENT

(1.) The plaintiff obtained a usufructuary mortgage from the father of the 1st defendant in 1906. He was in possession for three years. After that period, the tenants whom he had let into possession colluded with one Sekhomoni Ammal, a neighbouring Zamindarini and carried away the crops on the land without paying the landlord s share. Thereupon the plaintiff instituted csriminal proceedings against the tenants and they were convicted. For the expenses incurred in conducting the criminal proceedings the second defendant who is the step-mother of the 1st defendant executed a document, which is styled a vartamanam, in December 1909. The present suit is brought against both the defendants on that document. The 1st defendant denied the right of the 2nd defendant to be his guardian, and contended that the criminal litigation was not conducted bona fide and that he is not liable for the expenses incurred. The District Munsif came to the conclusion that the criminal prosecution was not necessary for protecting the interest of either the mortgagor or the mortgagee, that the expenses incurred were not covered by any of the provisions of Section 72 of the Transfer of Property Act, and that under any circumstance the plaintiff is not entitled to any decree against the 1st defendant who was a minor at the time of Exhibit A. He dismissed the suit.

(2.) In appeal the Subordinate Judge differed from the District Munsif upon the question whether the criminal proceedings were necessary to protect the estate. His finding is that as Sekhomoni Ammal disputed the ownership of the defendants it was necessary to have conducted criminal proceedings in order to protect the estate. He also held that the document executed by the second defendant was binding upon the 1st defendant. He gave a decree to the plaintiff for Rs. 800. The decree is personal and does not charge the property of the 1st defendant.

(3.) No serious attempt was made before us to impeach the finding of the Subordinate Judge that the expenses of the criminal prosecution were necessary. If we heard the case on the facts, we may not have come to the same conclusion as the lower Appellate Court has done. Under Section 72 Clause (c) of the Transfer of Property Act, the mortgagee in possession may add any moneys spent in supporting the mortgagor s title to the property. It is open to doubt whether an expensive criminal litigation carried on for the purpose of getting convicted certain persons who had reaped and carried away the crops on the land can be regarded as a proceeding necessary to support the title of the mortgagor. But, apparently, the accused were set up by a rival claimant, and it appears from the evidence that the 2nd defendant requested the plaintiff to take criminal proceedings to protect the 1st defendant s title to the property. As we said before, the matter has not been seriously argued before us, and we are not prepared to differ from the Subordinate Judge on this point.