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1960 DIGILAW 217 (KER)

Chummar v. Rosa

1960-06-13

M.S.MENON, P.JOSEPH

body1960
JUDGMENT M.S. Menon, J. 1. This is an appeal from the decision of Vithayathil J, in S.A. No. 69 of 1950 of the High Court of Travancore-Cochin after obtaining his declaration that the case is a fit one for appeal under section 21 of the Travancore-Cochin High Court Act, ! 125. Chummar, the appellant before us and in S. A. No. 69 of 1950, was the defendant in O. S. No. 274 of 1121 of the Munsiff's Court, Ernakulam. He was also the unsuccessful appellant in A. S. No. 79 of 1123, the appeal from the decision in O. S. No. 274 of 1121 to the District Court of Anjikaimal. 2. The plaintiffs in O. S. No. 274 of 1!21 and the respondents in A. S. No, 79 of 1123, S. A. No. 69 of 1950 and before us are the children of one Lonan who had a leasehold interest created by an oral lease in the item of property specified in the schedule to the plaint. The first plaintiff, Rosa, was a major at the time of the suit. The second and third plaintiffs are still minors. The first plaintiff acts as their guardian. 3. The owner of the property at the time of the oral lease was Chakku, the father of the defendant. Under a family partition on 15-3-1109 (Ext. I) the property was allotted to the defendant. He was a minor at that time, and before he attained majority Chakku acting as his guardian sold the property to one Damodara Pisharody on 29-10-1112 (Ext. D). 4. Lonan continued to be in possession of the property as a lessee until his death. On his death the leasehold right devolved on the respondents and their mother, Ealia, Subsequently, on 14-11-1315, Ealia executed a lease deed, Ext. E, in favour of Damodara Pisharody. 5. After Chummar attained majority he filed O. S. No. 449 of 1117 to set aside the sale in favour of Daraodara Pisharody on the ground that it was prejudicial to his interest and that his father's action as his guardian was not valid or binding. The respondents, all of whom were minors at that time, and their mother were impleaded as defendants in that suit. Ealia filed a written statement on her own behalf and also as the guardian of her minor children. She, however did not do anything further. The respondents, all of whom were minors at that time, and their mother were impleaded as defendants in that suit. Ealia filed a written statement on her own behalf and also as the guardian of her minor children. She, however did not do anything further. Chummar succeeded in getting the sale declared invalid (Ext. B). 6. In the appeal filed by Damodara Pisharody, A. S. No. 212 of 1119, the decree of the trial court was reversed (Ext. III). A second appeal by Chummar, S. A. No. 101 of 1120 followed. That ended in a decree setting aside the sale in favour of Pisharody and upholding the right of Chummar to get possession of the property from the respondents and their mother (Judgment: Ext. C, Decree: Ext. VI). The present suit seeks a declaration that the said decree is not binding on the plaintiffs on the ground that their guardian was guilty of gross negligence and a permanent injunction restraining its execution. The trial court and both the appellate courts have come to the conclusion that the decree is not binding on the plaintiffs and that it cannot affect their 5/7th share in the property. 7. The main question agitated before us is as regards the scope and effect of Ext. B, the lease deed executed by Ealia to Damodara Pisharody on 14-11-1115. According to the appellant that document spells a termination of the oral lease and the grant of a fresh demise solely to Ealia who alone figures as a lessee in Ext. E. 8. We propose to assume, without 'deciding, that this contention is correct. Even then, for Ealia's termination of the oral lease to be binding on her minor children, that termination should amount to a beneficial act. They had 5/7th share in the leasehold interest under the oral lease granted to their father, and we find it impossible to say that any giving up of their rights under that lease, with­out payment or apparent reason, was a beneficial act binding on them or their share in the leasehold right. 9. We were told that there were no improvements on the property, that a verumpattom right on the date of Ext. 9. We were told that there were no improvements on the property, that a verumpattom right on the date of Ext. E was only a precarious right, and that the giving up of such a right was a prudent transaction in view of the vicissitudes of agriculture and the danger to the other assets of the minors in case the rent due under the lease fell into arrears and was not duly paid. We are unable to , appreciate this contention. The cultivation of the property concerned was apparently a lucrative adventure. If it were not, it is impossible to understand why Ealia should have cared to execute Ext. E and pay a muppattom for the first time. What was good for Ealia must have been good for the minors as well, and we cannot but hold that Ext. E spells no valid termination of the oral lease, . that the rights of the respondents in the property remain untouched by that document, and that they continue to be lessees under the oral lease granted to their father. 10. S.27 of the Guardians and Wards Act, 1890, applies to guardians recognised by the law whether or not they have been appointed guardians under that Act. (AIRs 1934 Rangoon 335). Under that section a guardian of the property of a ward is bound to deal therewith as carefully as a man of ordinary prudence would deal with it if it were his own, and what he may do, subject to the provisions of Chapter III of the Act, are acts which are reasonable and proper for the realisation, protection or benefit of the property. The corresponding provision obtaining in the Cochin State at the time of Ext. E was section 22 of the Guardians and Wards Act, XVII of 1095 (M. E.). 11. In (1897) 7 M.L.J. 191 a guardian advanced a sum of money belonging to his ward on the security of certain lands. Subsequently at the request of the mortgagor he released a portion of the secured lands from liability under the mortgage on the ground that the remainder of the property was ample security for the loan. It was held that the release was prejudicial to the minor and that the minor had a right to realise his debt from all the property originally mortgaged. 12. It was held that the release was prejudicial to the minor and that the minor had a right to realise his debt from all the property originally mortgaged. 12. The only further contention is that even if our conclusion is as above, one of the respondents -- Rosa -- became major on 24-6-1120 i. e., subsequent to the decision of the trial court in O. S. No. 449 of 1117 (Ext. B) and of the District Court in A. S. No. 212 of 1119 (Ext. III) but before the filing of S. A. No. 101 of 1120 in the High Court of Cochin on 20-10-1120 (Ext. IX), and that her 1/7th share should hence be held to be bound by the decree in that second appeal. Chummar impleaded Rosa as a minor in S. A. No. 101 of 1120, and it cannot at any rate be contended that she was bound to enter an appearance in the second appeal and state her case unless she had knowledge of that litigation. 13. Vithayathil J. has stated that both the courts below have found that the first plaintiff had no knowledge of the litigation at any time prior to the date ' of the decree in S. A. No. 101 of 1120 and endorsed that finding. We see no reason to differ from his conclusion. 14. The only passage on which reliance is placed to bring home a knowledge of the litigation to Rosa is a statement in the evidence of Ealia when examined as PW 4 to the effect that she sent Rosa with a vakalath to her counsel. The fact that Rosa was entrusted with a vakalath does not necessarily mean that she knew the purpose for which the vakalath was intended or the details of the litigation. She herself has given evidence as PW 5 and has denied all knowledge of the litigation. We see no reason to disbelieve her testimony and it follows that she is in no way precluded from agitating her contentions regarding her 1/7th share by anything in the litigation which commenced with the presentation of the plaint in O. S. No. 449 of 1117 and ended with the decree in S. A. No, 101 of 1120. 15. In the light of what is stated above this appeal must fail and to be dismissed. We dismiss the appeal with costs.