(CHANDA) PULLAMMA GARU Vs. (JASTI) SATYANARAYANA

JUDGEMENT

(1.) Defendants 3 and 4 and the plaintiff were brothers. Defendant 3 for himself and as guardian of his younger brothers (defendant 4 and plaintiff) both of them then minors, executed a hypothecation bond in favour of defendants 1 and 2 on 14 December 1922 for Rs. 700. A suit was instituted by defendant 2 (O.S. No. 511 of 1918) making the present defendants 3 and 4 party defendants to recover money due on the mortgage. Defendant 3 would seem to have become a major at the time of that suit. The present plaintiff being a minor at that time, in fast he is a minor even now was represented by his elder brother, defendant 3, as guardian ad litem. None of the defendants appeared, and the result was that a decree was passed in favour of the mortgagee (plaintiff). Execution proceedings were started and the properties were sold and purchased by the decree-holder himself. The present suit, O.S. No. 226 of 1922 on the file of the Court of the District Munsif of Gudivada, was instituted by the plaintiff, even now a minor, making his two brothers as defendants 3 and 4. Defendants 1 and 2 represent the mortgagee. The case of the plaintiff was that the mortgage, the subject-matter of O.S. No. 511 of 1918, was not executed for necessity by his eldest brother, that the registration of the document was invalid in law because it was registered by a Sub-Registrar within whose jurisdiction no portion of the property intended to be given as security was situated, that defendant 3 the executant of the mortgage, was not in law competent to represent the minor (himself), and that in fact the guardian was also guilty of gross negligence in the conduct of the prior suit. Both the lower Courts have found in favour of the plaintiff substantially as regards all the contentions put forward by him. Defendant 2's legal representative has preferred this second appeal.

(2.) The learned advocate for the appellant contended that the guardian is not bound to put forward technical pleas such as that the document was registered by a Sub-Registrar in whose jurisdiction the property intended to be given as security was not situated. He also contended that the lower Courts had approached the case from an erroneous standpoint. He urged that defendant 3, the elder brother of the present plaintiff, who was admittedly a major at the time of the prior suit, was ex-parte, and that if the plaintiff's present contentions were considered to be good, surely defendant 3 would have himself put forward such contentions. He finally urged that in any event it should be made clear that it is only with reference to the plaintiff's interest that the mortgage decree and the subsequent sale would not be binding and that the interests of defendants 3 and 4 would not in any way be affected by the result of the present suit.

(3.) I do not propose to say anything on the question of fraud on the registration law. Both the lower Courts have concurrently found that the guardian was grossly negligent in the conduct of the defence in the prior suit. They have also found that there was no necessity for borrowing Rs. 700 mentioned in the mortgage-deed. Cogent reasons have been given by both the Courts in respect of their findings. I think they had ample materials on which they could have arrived at such findings. If these findings are upheld in second appeal, it follows that the decree passed in favour of the plaintiff is clearly right. The result of the recent Full Bench decision in Venkata Someswara Rao V/s. Lakshmanaswami A.I.R. 1929 Mad. 213 is that the mere circumstance that the executant of a document which was purported to be executed both by himself personally and on behalf of certain minors, also represented the minors in a subsequent suit, could not be taken by itself to make any decree passed on the basis of the document invalid and not binding upon the minors. The Full Bench held that the question of validity and binding nature of such decree should be considered having regard to the particular pleas taken in any case. Having regard to the findings mentioned by me, the plaintiff was properly given a decree by both the lower Courts.