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1982 2 MLJ 314
V. Sethuraman, J.
P. Thangavelu
Versus
R. Dhanalakshmi Ammal And Ors. And S. Dhanalakshmi Ammal And Ors.
Decided on: 1/10/1980
.
LETTERS PATENT APPEAL - SUIT FOR DECLARATION OF TITLE - MORTGAGE - VOID TRANSACTION - DECREE AND SALE - INVALIDITY - COMPROMISE - JURISDICTION - RES JUDICATA - COLLUSIVE TRANSACTION - FRAUD - LIMITATION - SECTION 14 OF THE LIMITATION ACT - CONDONATION OF DELAY - ORIGINAL SIDE APPEAL - DISMISSAL.
Fact of the Case:
The plaintiff filed a suit for a declaration of title to the suit property and for a permanent injunction restraining the defendants from interfering or dealing with the said property. The plaintiff claimed title to the property by virtue of a Court auction-purchase in execution of a decree in a suit filed by the mortgagee. The defendants contended that the mortgages executed by the plaintiff's predecessors-in-interest were void and that the plaintiff had not acquired any title to the suit property. The trial Court dismissed the suit and the plaintiff appealed to the High Court.
Finding of the Court:
The High Court held that the mortgages executed by the plaintiff's predecessors-in-interest were void and that the plaintiff had not acquired any title to the suit property. The Court also held that the compromise entered into at the time of the disposal of the suit filed by the mortgagee was invalid as the Court had no jurisdiction to entertain the suit. The Court further held that the plaintiff was not bound by the order of the High Court sanctioning the sale of the suit property in favour of the first defendant as the proceedings were collusive and fraudulent. The Court also held that the plaintiff's application to set aside the order sanctioning the sale was barred by limitation and that there was no ground to condone the delay.
Issues: 1. Whether the mortgages executed by the plaintiff's predecessors-in-interest were void? 2. Whether the plaintiff acquired any title to the suit property by virtue of the Court auction-purchase? 3. Whether the compromise entered into at the time of the disposal of the suit filed by the mortgagee was valid? 4. Whether the plaintiff was bound by the order of the High Court sanctioning the sale of the suit property in favour of the first defendant? 5. Whether the plaintiff's application to set aside the order sanctioning the sale was barred by limitation? 6. Whether there was any ground to condone the delay in filing the application?
Ratio Decidendi: 1. The mortgages executed by the plaintiff's predecessors-in-interest were void as they were executed by minors and by a person who had only a life interest in the property. 2. The plaintiff did not acquire any title to the suit property by virtue of the Court auction-purchase as the decree and sale were based on a void mortgage. 3. The compromise entered into at the time of the disposal of the suit filed by the mortgagee was invalid as the Court had no jurisdiction to entertain the suit. 4. The plaintiff was not bound by the order of the High Court sanctioning the sale of the suit property in favour of the first defendant as the proceedings were collusive and fraudulent. 5. The plaintiff's application to set aside the order sanctioning the sale was barred by limitation as it was filed after the lapse of nearly 23 years. 6. There was no ground to condone the delay in filing the application as the plaintiff had not explained the delay between December, 1958, when he obtained the orders of the High Court on the search application and December, 1960, when he claimed to have taken proceedings in the High Court and the Bar Council.
Final Decision: The High Court dismissed the plaintiff's appeal and also the plaintiff's application to set aside the order sanctioning the sale of the suit property.
V. Sethuraman, J.
1. These two appeals arise out of some common facts. However, we would first consider the Letters Patent Appeal before we go into the O.S.A.
2. This appeal has been filed by one Thangavelu, who was the plaintiff in O.S. No. 5265 of 1967. The relevant facts which gave rise to this appeal are as follows:
3. There was one Munuswamy Naicker, who had a wife by name Kuppammal. Under Exhibit A-1, dated 16th October, 1902, the suit property was purchased in the name of Kuppammal. Munuswamy Naicker left a will dated 25th January, 1922, the photostat copy of which has been marked as Exhibit A-3. In that will Munuswamy treated the property purchased in the name of the said Kuppammal as his property and made dispositions accordingly. They had a daughter by name Vaduvambal, who was married to one Velu Naicker. At the time of the will, Vaduvambal, her husband and her children were living with him. Vaduvambal had three sons and a daughter by name Dhanalakshmi, the daughter being the eldest who was aged about 11 years, The three sons were Balakrishna, Gnanasundaram and Marimuthu, who were aged 8, 5 and 3, respectively. In respect of the suit property the will provided for the enjoyment of the income by Kuppammal for her life without power of alienations of any kind and after her death the property was to be enjoyed by Dhanalakshmi, the first defendant, for her life also without power of alienation of any kind. On her death, the male children of the first defendant were to take the property absolutely. In the event of the first defendant not having any male child, the property was to be taken by the three grandsons, Balakrishna, Gnanasundaram and Marimuthu. There was a further clause in the will that if, at the time of the testator's grandsons taking the property on the terms above mentioned, all or any of them were minors, then the daughter, Vaduvambal, and her husband Velu Naicker were to be the executors of the estate for managing the property during such minority. The property was to be handed over to the grand-child or grandchildren when he or they attained majority.
4. On 16th February, 1924, Munuswamy died, the said Vaduvambal and Velu Naicker describing themselves as the executrix and executor of the will obtained probate of the will from this Court in T.O.S No. 9 of 1925.
5. On 16th October, 1933, Kuppammal, acting for herself and probably as the guardian of the three minor grandsons, Balakrishna, Gnanasekaran and Marimuthu, executed a mortgage over the suit property and obtained a loan of Rs. 1,100 from one Vridambal. The document itself is not before us. To the said mortgage Dhanalakshmi, the first defendant, was not a party. Kuppammal passed away some time thereafter and there was a second mortgage on 17th February, 1936, by Balakrishna, Somasundaram and Marimuthu in favour of the same mortgagee but of different properties for a sum of Rs. 1,500. Thus, at the time of the first mortgage in 1933, Balakrishna, Gnanasundaram and Marimuthu would have been aged 19, 16 and 14, respectively. In view of the fact that there was a testamentary guardian appointed for them, the age of majority would be 21 years instead of 18 years. Thus, Balakrishna, Gnanasundaram and Marimuthu would all be minors at the time of the first mortgage. At the time of the second mortgage, Balakrishna had attained majority, while the other two continued to be minors and Balakrishna had purported to act as their guardian in executing the mortgage.
6. The mortgagee, Vridambal died in the, meanwhile, and her husband Narayanaswamy Mudaliar as her heir, filed O.S. No. 46 of 1943 in the Sub-Court, Chengalpattu on 28th February, 1943. There was a preliminary decree in this suit as against Balakrishna and his two brothers, on 12th February, 1944, for a sum of Rs. 5,875. It may be relevant to state at this stage that though the two mortgages were not by exactly the same persons and covered different properties they were combined in one suit. Munuswamy had
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