VENKATARAMANI IYER Vs. SUBRAMANIA IYER

JUDGEMENT

(1.) The plaintiff in the suit from which this second appeal has arisen is the appellant here. His suit was primarily to have it declared that the decree passed against him in O.S. 26 of 1905 on the file of the Subordinate Judge, Kumbakonam, is not binding on him. The grounds on which such a declaration has been asked for, so far as one is able to gather the same from the plaint, are that he was the minor defendant 12 in that suit and that even though his father Krishnaswamier was appointed guardian ad litem in the suit he colluded with the plaintiffs in the action allowing a decree ex parte to result against him. The reliefs prayed for by the plaintiff on the basis of the declaration above referred to have reference to two sets of properties, one in Schedule A and the other in Schedule B. The primary relief is only in respect of properties described in Sch A. The relief in respect of properties in Schedule B is only prayed for in the alternative. The Court of first instance granted a decree in favour of the plaintiff in respect of the properties in Schedule A. On appeal by the defendants the decree passed by the Court of first instance was reversed and the plaintiff's suit was dismissed by the learned Subordinate Judge.

(2.) The case has been argued at considerable length on both sides. It may be briefly stated that three points were taken by Mr. Rangachariar, the learned vakil for the appellant. The facts, however, necessary to understand the contentions may be briefly referred to. There was a previous suit, O.S. No. 59 of 1890, on the file of the Subordinate Judge of Kumbakanom which had been instituted by the grandfather of the present respondents for the purpose of certain declarations with regard to the property of one deceased Muthappier. Both the widow and the mother of the deceased were alive at that time and the suit that was instituted was merely for declaring that certain alienations which had been made by the qualified owner or owners were not binding on the reversioners. The plaintiff's grandfather was a party defendant in that suit and a compromise was entered into by and between the parties which virtually resulted in the property of the deceased being divided between the parties. They came to an arrangement that the properties should be divided in equal moieties and for the purpose of carrying out the same some properties which also belonged to the plaintiff's grandfather were given to the plaintiffs in that suit in exchange for the purpose of equalising the shares or rendering convenient the enjoyment of the property about which they were making an arrangement. This Compromise, however, was not made a decree of Court, but the parties merely carried out that arrangement by executing documents which have been put in evidence in this case. After this compromise and after the death of the qualified owners, defendants, 1 and 2 and 3 in this suit were found to be the actual reversioners entitled to the reversionary estate and, it was thereupon that they filed the suit, O.S. 26 of 1905, above referred to. That suit was, therefore, merely for the recovery of possession of the various items of property forming part of the estate of Muthappier on the ground that on the death of the widow they, as immediate reversioners, became entitled to the properties. The present plaintiff, as already stated, was defendant 12. He was a minor and his father was appointed guardian. The case of collusion between the plaintiff's father and the plaintiffs in that case which was the main case set up in the plaint has not been proved and such a case has not been put forward or pressed here. The case that was sought to be made by Mr. Rangachariar was that the plaintiff's father as guardian ad litem was guilty of gross negligence in the conduct of that litigation on behalf of the plaintiff when he was minor and that therefore, the decree in that case should be held not to be binding on the plaintiff.

(3.) To begin with, it must fall to be observed that whatever may be the latitude that may be given or expected in ordinary actions, at any rate in cases where the relief claimed is to have a decree of a Court of competent jurisdiction set aside on certain grounds alleged, it is absolutely necessary that the grounds relied upon should be set out clearly and definitely. In fact I am not at all sure whether it would not have been open to us in this case to reject the whole case of the appellant on the ground that the case originally propounded in the plaint was one of collusion, and that having gone and no case of negligence, much less of gross negligence having been indicated in the plaint, it is not competent to the appellant to seek to make any such case here. But apparently for some reason both the Courts below seem to have proceeded on the view that it was open to the plaintiff to make such a case and Mr. Varadachariar appearing for the respondents has not raised any objection to the case being considered on the merits of the contentions raised for the appellant.