C GANAPATHY MUDALIAR Vs. NKRISHNAMACHARIAR

JUDGEMENT

(1.) This is an appeal from a decree of the High Court at Madras, dated the 17th February, 1914, which affirmed a decree, dated the 9th February, 1910, of the District Judge of North Arcot, by which the suit was dismissed. The plaintiff is the appellant.

(2.) The suit was brought in the Court of the District Judge of North Arcot on the 16th November, 1907, to redeem three mortgages dated respectively the 12th December, 1876; the 7th January, 1879, and the 10th May, 1881. The mortgages were of ancestral property, and were made by the father of the plaintiff before the plaintiff or his brother, since deceased, were born. The mortgage of the 7th January, 1879, was in favour of N. Vijayaragavachariar, a vakil, to whom their Lordships will refer as the vakil. The mortgages of the 12th December, 1876, and the 10th May, 1881, vested by assignment in the vakil. The plaintiff in this suit was born in September 1881; his brother was born in May 1882.

(3.) On the 19th March, 1886, the vakil brought in the District Court of North Arcot, a suit for sale on the mortgage of the 10th May, 1881, against the plaintiff s father, the plaintiff, aged four years, and his brother, aged three years, the brothers being described as "maintained by the first defendant, who was their father. The suit was entered on the files of the Court as Original Suit No. 5 of 1886. Their father, who had not been appointed as their guardian for the suit, objected that he was not their guardian, but the District Judge overruled the objection, and on the 15th April, 1886,made a decree in the following terms:- It is ordered that plaintiff do recover 10,891 rupees, together with further interest at 6 per cent, per annum from date of plaint to date of payment and costs, to be recovered from the first defendant personally, and by sale of the mortgaged property.