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Judgment
S. Swamikkannu, J.—This Pauper Appeal is filed by the plaintiffs Sivashanmugam and Sakthivel (minor by next friend Sivashanmugam). The
second appellant was declared as major as per order dated (19.2.1974 in C.M.P. No. 13460 of 1973). The respondents in this appeal are the
first defendant Ongayamrnal, the second defendant Thangarajan, the fourth defendant A.M. Venkatachala Mudaliar, the 5th defendant A. Sengoda
Mudaliar, the 6th defendant A. Loganathan, the 8th defendant M.P. Perianna Mudaliar, the 9th defendant Appavu Mudaliar, the 10th defendant
President, House Mortgage Bank, Erode, 11th defendant Kandayammal, 12th defendant Murugesan, 13th defendant Singaravelu, 14th defendant
Saraswathi, 15th defendant Savithri, 16th defendant Radhamani, 17th defendant S. Palaniswamy Chettiar, 18th defendant A. Sivashanmugham,
19th defendant Indrani, 20th defendant Kanaka and 21st defendant Sivasalthammal. The suit was filed by the plaintiffs Sivashanmugam and
Sakthivel before the lower Court in: for ma pauperis to declare that the decree mentioned in the B Schedule to the plaint is not bidning on the
plaintiffs and for dividing the suit property into four shares and put the plaintiffs in possession of two such shares.
The case of the plaintifs Sivashanmugam and Sakthivel in brief is as follows:- The plaintiffs are brothers and the second defendant is their step-
brother. The plaintiffs and the second defendant are sons of N. Chinnappa Mudaliar, the partner of Venkatesa Textiles, who died during the
pendency of the suit. That is in or abour 1955 or in or about 1957. The first defendant Ongaliammal is the wife of Chinnappa Mudaliar. The suit
property is the ancestral property of the plaintiffs. Chinnappa Mudaliar had ancestral landed properties, and the Kulachara of the joint family is on
agriculture. After the death of the grand-father of the plaintiffs, Chinnappa Mudaliar started yarn business without any experience and incurred
debts. He was forced to sell the joint family properties. Later also, he entered into several transactions in a reckless way. He nominally executed a
sale deed in respect of the suit property in favour of his close relation Mottayappa Mudaliar and after some time he got back the suit property once
again. He also fell into the bad company and was keeping one Pavayee as his concubine and got addicted to drinks. He had incurred debts for his
illegal and immoral purposes. The defendants 3 to 9 are close friends of Chinnappa Mudaliar. They instigated Chinnappa Mudaliar to file I.P. No.
7 of 1955 on the file of Sub Court, Coimbatore, later transferred and numbered as I.P. No. 1 of 1956 on the file of the Sub Court, Erode to
escape from the clutches of the creditors. For the purpose, fictitious debts were created in favour of the defendants 3 to 9 to escape from the
liabilities of other creditors. Even though the debts as if due to the defendants 3 to 9 have been set out in the Insolvency Petition, those debts were
not true, but fictitious and created for the abovesaid purpose. Chinnappa Mudaliar also entered false entries in his accounts to support the claim of
the defendants 3 to 9. The debts are not binding on the plaintiffs. The entire claims of the defendants 3 to 9 are time-barred and fictitious even at
the time of filing I.P. No. 7 of 1955 and the entries were made as if claims were still pending. The plaintiffs understand that the Insolvency Petition
was dismissed. Thereafter, several years, the defendants 3 to 11 took advantage of the recitals in the Insolvency Petition, filed suits O.S. 971 of
1952, O.S. 722 of 1958, O.S. 724 of 1958, O.S. 733 of 1958, O.S. 734 of 1958, O.S. 758 of 1958, S.C. 1078 of 1958, O.S. 624 of 1958 on
the file of the District Munsif''s Court, Erode, O.S. 19 of 1958 on the file of the Sub Court, Erode and C.E.P. No. 32/57-58 on the file of the Co-
operative Sub Registrar, Erode. All the above suits on the file of the District Munsif''s Court, Erode, were decreed. The said decrees are not
binding on the plaintiffs since these decrees were passed on the strength of time-barred and fictitious debts, which in any event will not bind the
plaintiffs or their shares of the properties. In the abovesaid O.S. No. 971 of 1952, on the file of the District Munsif''s Court, Erode, Chinnappa
Mudaliar, the father of the plaintiffs did not contest the suit property and failed to raise the plea that the suits are barred by time. The second
defendant was not interested in safeguarding his interests and was colluding with the defendants 3 to 9. The entire liability could have been warded
off if the defendants 1 and 2 had been vigilant in the conduct of the proceedingsw. In O.S. No. 19 of 1958 on the file of Sub Court, Erode, filed
by the third defendant, the plaintiffs were represented by guardian Thai Muthammal. She contested that suit on the ground of limitation and got the
suit dismissed. The decree in O.S. No. 19 of 1958 was taken in appeal and the suit was remanded for fresh disposal after giving an opportunity to
the third defendant to amend the plaint and again the suit was dismissed upholding the contention of the defendants in that suit that the suit was
barred by limitation on the ground that the presentation of the Insolvency Petition and the appointment of Receiver will not suspend the operation
of the statute of limitation.'' On the very same principle the other suits on the file of District Munsif''s Court, Erode, and on the file of Co-operative
Sub Registrar, Erode, would have been dismissed, provided proper care had been taken by the guardian of the first defendant in defending those
suits. Thai Muthammal the grandmother of the plaintiffs as next friend of the plaintiffs instituted the suit O.S. No. 6 of 1959 on the file of the Sub
Court, Erode, for partition and for a declaration that the debts incurred by Chinnappa Mudaliar are illegal and immoral and not binding on the
plaintiffs. The said suit was not properly framed as the main contention which could have been raised, was not raised. In that suit the prayer to set
aside the decree was not included. The said suit O.S. No. 6 of 1959 was, dismissed on 20.10.1965. The plaintiffs\grandmother did not prosecute
further. Had the guardian attended to O.S. No. 6 of 1959 on the file of Sub-Court, Erode, with vigilance, as is necessary in the circumstances, the
claims of the defendants would not have prevailed at all. Therefore, the decree in O.S. No. 6 of 1959 on the file of Sub Court is not binding at all
on the plaintiffs. The suit property was sold in E.P.R. No. 1505 of 1959 in O.S. No. 791 of 1952 on the file of the District Munsif''s Court, Erode.
Since it has been held in O.S. No. 6 of 1959 on the file of Sub Court, Erode, that the suit property herein will be available for partition, the Court
auction will not affect the"" rights of the plaintiffs for partition. Further, the Court auction is subsequent to the suit O.S. No. 6 of 1959. Therefore,
the suit property described in A Schedule is to be partitioned as prayed for and the decrees set out in B Schedule are to be set aside as not binding
on the plaintiffs.
It is inter alia contended in the written statement of the 8th defendant that the ''Kulachara'' of the plaintiff''s family was not agriculture. Their
occupation is weaving and trade. The allegation that Chinnappa Mudaliar was an agriculturist and later ventured into trade is not true. Chinnappa
Mudaliar was never an agriculturist. He was always a trader. He had no ancestral property. The suit property is not the ancestral property of
Chinnappa Mudaliar. The suit property was purchased by Chinnappa Mudaliar out of his own earnings. When he migrated to Erode, he had no
property at all. He had started a cloth business, made profits in the beginning and later enlarged his business and for. that business he incurred
debts, and he was also making profits in the business and was paying Income Tax. The allegation that Chinnappa Mudaliar fell into vices, had a
concubine by name Pavayee and addicted to drink and other vices is not true. The allegations that the defendants 3 to 11 are the friends of
Chinnappa Mudaliar, that the debts in their favour were created and recited in the Insolvency Petition to defraud the other creditors of Chinnappa
Mudaliar, and that the defendants 3 v to 11 advised Chinnappa Mudaliar to file an Insolvency Petition are not true. The debts in favour of
defendants 3 to 11 were true, valid and binding on the plaintiffs. After the death of Chinnappa Mudaliar his legal representatives were not brought
on record in Insolvency Petition and so the petition was dismissed. After the dismissal of the Insolvency Petition, the creditors of Chinnappa
Mudaliar had to file several suits on the file of District Munsif''s Court, Erode, for recovery of the debts due from Chinnappa Mudaliar. The
defendants 3 to 11 have all filed suits on the file of District Munsif''s Court, Erode, for recovery of the sums due to them impleading the plaintiffs
and the defendants 1 and 2 as the legal representatives of late Chinnappa Mudaliar. The suits were contested at the beginning and later on they
were/decreed. The plaintiffs and the defendants 1 and 2 have no right to question those decrees. As the estate left by Chinnappa Mudaliar is his
self-acquirefi property, it is answerable to the debts incurred by him. The admission and acknowledgments of the claim in the Insolvency Petition
are valid to save time, and those admissions are also binding on the plaintiffs and the defendants 1 and 2. The plaintiffs were then properly
represented by their next friends and guardian in those suits. Those decrees are binding on the plaintiffs. In O.S. No.6 of 1959 on the file of Sub
Court all the contentions raised by the plaintiffs have been considered and negatived. The suit property was sold in Court auction in O.S. No. 971
of 1952. The decree in O.S. No. 971 of 1952 was obtained against Chinnappa Mudaliar himself during his lifetime. When the suit property was
sold in Court auction, the plaintiffs and defendants 1 and 2 filed an application under Order 21, Rule 90, C.P.C., to set aside the sale in E.A. No.
377 of 1959 and the same was dismsissed. Against that order of dismissal, the plaintiffs preferred an appeal in C.M.A. No. 24 of 1960 on the file
of the Sub Court, Erode, and it also ended in dismissal. Finally the plaintiffs took the matter to High Court in A.A.O. No. 1 of 1961 and it was
also dismissed in 1962. Thus, finally the sale was confirmed. The 17th defendant, the Court auction purchaser of the suit property obtained
possession of the properties through Court. He is in possession of the same. There is no property available for partition for the plaintiffs. The suit
property is the self-acquired property of Chinnappa Mudaliar. The plaintiffs have no right by birth in it. Further, all the debts incurred by
Chinnappa Mudaliar were for purpose of trade and therefore they are binding on the plaintiffs and the defendants 1 and 2. As the present
contentions of the plaintiffs have been considered and negatived in O.S. No. 6 of 1959 on the file of the Sub Court, Erode, the present suit is
barred by the principle of res judicata. The suit filed by the plaintifs is barred by time.
The contentions raised by the 17th defendant in brief are as follows: - The 17th defendant is the Court-auction, purchaser of the suit property
described in A schedule in execution of the decree in O.S. No. 971 of 1952 on the file of the District Munsif''s Court, Erode, for valuable
consideration. He also applied for delivery of possession of the suit property in E.A. No. 490 of 1963 and got delivery of the suit property on
25.2.1963. Since then he is in possession and enjoyment of the same as his own. The property was purchased subject to encumbrance created by
Chinnappa Mudaliar. The surplus sale proceeds left in Court deposit were distributed later on to several decree-holders of the said Chinnappa
Mudaliar. He is a third party bona fide Court auction purchaser for consideration. In other respects, he adopts the written statement filed by the
other defendants.
The material averments in the written statement of the 21st defendant are as follows: - The suit is barred by limitation. The suit is barred by the
principle of res judicata in view of the decision in O.S. No. 6 of 1959 and the suit is also bad for non-joinder of parties.
On the above pleadings, the following issues were framed for trial:
Whether the decrees mentioned in the plaint are not binding on the plaintiffs and are liable to be set aside?
Whether the plaintiffs are entitled to the reliefs of partition?
Whether the suit is in time?
Whether the suit is barred by res Judicata?
Whether the suit is bad for nonjoinder of parties?
To what relief are the parties entitled?
The first plaintiff Shivashanmukham examined himself as P.W. 1. P.W. 2 Narayana Mudaliar was also examined on behalf of the plaintiffs. 17th
defendant Palaniappa Chettiar had gone into the box and deposed on behalf of the defendants. On behalf of the plaintiffs Ex. A1 to A12 were
filed. On behalf of the defendants Exs. B1 to B16 were filed.
The lower Court under Issue Nos. 1, 2 and 4 came to the conclusion that there is practically no acceptable evidence to hold that Chinnappa
Mudaliar was leading any immoral or illegal life or incurred any debt for the alleged immoral or illegal activity. It has been held that there is
practically no evidence to show that any of the debts due to any of the defendants which later ripened to decree was connected with the alleged
immoral or illegal activity of Chinnappa Mudaliar. The plaintiffs have not proved that any of the debts was tainted with illegality or immorality. The
lower Court also held that the recitals in Ex. B4 themselves disprove the plaint allegations that Chinnappa Mudaliar sold the suit house in favour of
Mottaiya Mudaliar nominally and again got it transferred in his name from Mottaiya Mudaliar. It has therefore not been proved that the suit house is
the ancestral house of the plaintiffs. It was held by the lower Court that whatever it be, as already stated, D.W. 1 the 17th defendant being a third-
party Court auction purchaser his title is to be confirmed and could no, be impeached even if the decree in execution in O.S. No. 971 of 1952 is
found to be barred by time. The lower Court further held that there is no evidence to prove that those debts were fictitious and created for the
purpose of the Insolvency Petition in pursuance of any fraud and collusion between Chinnappa Mudaliar and those creditors. The lower Court
further held that the correct interpretation of the observation in paragraph 27 of Ex. B27 is that the subsequent event, i.e., the Court auction sale
that took place subsequent to filing of the suit O.S. No. 6 of 1959 could not affect the relief prayed for in O.S. No. 6 of 1959, if the plaintifs in that
suit were otherwise entitled to. The interpretation placed in the present plaint that paragraph 27 of Ex. B2 declared the right of the plaintiffs to have
partitioned the suit property is a misconceived one. The reading of the entire judgment would show that if the plaintiffs were entitled to get any right
in O.S. No. 6 of 1959 it could not be defeated by the Court sale subsequent to that suit. No doubt it has been observed in Ex. B2 that the
plaintiffs should pray for setting aside the decrees. From that the plaintiffs have chosen to add another string to their bow that their next friend in
O.S. No. 6 of 1959 has failed to include a prayer for setting aside the decrees and therefore, she acted in gross negligence in the conduct of the
suit. It was further held by the lower Court that it cannot therefore be said that the omission to include the prayer to set aside the decrees in the suit
O.S. No. 6 of 1959 is a ground for the plaintiffs to charge the guardian with negligence. In the course of the judgment the lower Court discussed
the evidence available on record in the light of ratio decidendi in Nagarpur Sambayya Vs. Nagarpur Pedda Subbayya, . It was further contended
by the plaintiffs that the position has been made clear by Section 5 of the Limitation Act. On the other hand the Learned Counsel for the
defendants relied on the decisions reported in R. Subramaniya Ayyar v. Dharapuram Janopakara Nidbi Ltd. and Ors. AIR 1928 Mad. 454 ,
Sinnaru Thevan and Others Vs. Nachiappa Chettiar, , Prem Lata Agarwal Vs. Lakshman Prasad Gupta and Others, , Daiva Ammal and Others
Vs. Selvaramanuja Nayakar and Others, , N.P.L. Eagappa Chettiar (Minor)\through his next friend N.P.L. Egappa Chettiar Vs. Em.S.V.L.
Ramanathan Chettiar and Others, , and in Narayanan Nambooripad and Others Vs. Gopalan Nair and Another, . No fresh material was furnished,
according to the lower Court, by the minors in the suit than one supplied by the guardian in O.S. No. 6 of 1959 to drive the Court to come to
different conclusion and charge the guardian with negligence. Therefore the lower Court held on Issue No. 1 that the decrees mentioned in the
plaint are binding on the plaintiffs and not liable to be set aside, on Issue No. 2 that the plaintiffs are not entitled to the relief of partition, and on
Issue No. 4 that the suit is barred by the principle of res judicata. Under Issue No. 3 the lower Court held that P.W. 1 had produced birth extract
Ex. A9. It shows that he was born on 11.6.1947. The suit was instituted in forma pauperis even in 1967. Therefore the lower Court found that the
suit is not barred by limitation. Under Issue No. 5 the lower Court held that as the plaintiffs are not going to get any relief and as the will referred to
in the written statement of the 21st defendant has not been produced and proved, we cannot say that the legatees thereunder are necessary parties
to the suit. Therefore Issue No. 5 was also found against the defendants. Under Issue No. 6 in view of its findings on other Issues the lower Court
held that the plaintiffs are not entitled to the reliefs claimed. In the result the lower Court dismissed the suit with costs. Aggrieved by the above
decision the plaintiffs have come forward with the present appeal inter alia contending that the Court below has failed to see that the previous suit
was not conducted properly in the interest of the minors, that the trial Court ought to have held that the debts were ''avyavaharika'' in character and
are not binding on the family especially the plaintiffs, that the trial Court ought to have held that the decrees are not binding on the plaintiffs and that
the Court below erred in holding that the house is not an ancestral property.
The points for consideration in, this appeal are as follows:,
Whether the plaintiffs have proved their case that the decrees mentioned in the plaint are not binding on the plaintiffs and are liable to be set
aside?
Whether the plaintiffs are entitled to the relief of partition?
Whether the suit is in time?
Whether the suit is barred by res judicata?
Whether the suit is bad for non-joinder of parties?
The first defendant, Ongaliammal is the second wife of Chinnappa Mudaliar. The plaintiffs-appellants are the sons of Chinnappa Mudaliar
through the first defendant. The second defendant is the son of Chinnappa Mudaliar through his deceased first wife. The suit property is only one
item i.e., a house situate at Erode Town described in Schedule A to the plaint. It is relevant in this connection to note that it is not the case of
anyone that the plaintiffs became divided from their father. The third defendant, V.S. Arunachala Mudaliar obtained a money decree in O.S. No.
971 of 1952 on the file of the District Munsif''s Court, Erode, against Chinnappa Mudaliar himself. Ex. A5 is the certified copy of the suit register
extract in O.S. No. 971 of 1952 on the file of the District Munsif''s Court, Erode, Ex. A5 shows that the suit was filed on a promissory note
against Chinnappa Mudaliar, that Chinnappa Mudaliar appeared through an advocate in that suit and that on 17.4.1983 the suit was decreed. It is
also relevant in this connection to note that a decree was passed even prior to the filing of the Insolvency Petition. As the debt that ripened into a
decree was a simple money debt incurred by the father Chinnappa Mudaliar, which would be binding on the plaintiffs, the sons, unless it was
shown that the debt was tainted with illegality or immorality, one of the allegations in the tions in the plaint is that Chinnappa Mudaliar fell into evil
ways and incurred debts for his illegal and immoral purposes. P.W. 1 was aged less than ten years when his father expired. Therefore, his evidence
as to the life led by Chinnappa Mudaliar cannot be accepted. P.W. 2 has stated that the plaintiffs'' father is his junior uncle''s son and that he does
not know anything about the conduct of Chinnappa Mudaliar. Therefore, there is practically no acceptable evidence to hold that Chinnappa
Mudaliar was leading any immoral or illegal life or incurred any debt for the alleged immoral or illegal activity.
In this appeal it is contended that the ''Kulachara'' of the family of the plaintiffs was agriculture and that Chinnappa Mudaliar entered into a new
venture of starting a business of yarn and incurred debts and, therefore, those debts are not binding on the plaintiffs. It is relevant in this connection
to note that it is common ground that the parties to the suit belonged to Sengunda Mudaliar caste. The debts in question are all simple money
debts. P.W. 2, Narayana Mudaliar, has stated that Chinnappa Mudaliar had 1-� acres of land in Vendipalayam, that he had no other ancestral
properties, that Narayanaswamy Mudaliar, the plaintiffs'' grand father that is the father of Chinnappa Mudaliar, did business in snuff and rice and
no other trade, Chinnappa Mudaliar was conducting javully trade (cloth business) at Erode and that he did the business well. His further evidence
is that Chinnappa Mudaliar''s ancestral land did not fetch any income, that Chinnappa Mudaliar sold it, that for eking out his livelihood Chinnappa
Mudaliar did business in snuff after the sale of the land and that he does not know whether Chinnappa Mudaliar made profit on incurred loss in
''jawfuly'' business. The plaintiffs'' paternal grandfather died long before P.W. 1, the first plaintiff was born. The evidence of P.W. 1 is that his
ancestral properties are in another village i.e., Lakkapuram. He has admitted that the occupation of his caste is weaving and ''Jawuly'' trade. P.W.I
has further admitted that he does not know whether his father Chinnappa Mudaliar incurred debts in his trade by way of purchase of goods and
whether the defendants obtained decrees for the balance on that account. Therefore, there is practically no evidence to show that any of the debts
due to any of the defendants which later ripened to decree was connected with the alleged immoral or illegal activity of Chinnappa Mudaliar. The
plaintiffs have not proved that any of the debts was tainted with illegality or immorality.
It is contended on behalf of the plaintiffs-appellants that the suit property is the ancestral property of the plaintiffs and not the self-acquired
property of Chinnappa Mudaliar. It is relevant to note that this aspect of the matter has not been proved, as it has not been proved that the debts
were incurred for any illegal or immoral purposes and as the debts are simply money debts, the plaintiffs'' share, if any, in the suit property is
certainly liable to answer for the simple money debts of the father on the theory of pious obligation. It is also contended that the plaintiffs have not
proved that the suit property described in A Schedule is their ancestral property. P.W. 2 has chosen to say that the plaintiffs'' grandfather
purchased the suit house. But he has admitted that he does not know as to when, from whom and for how much the plaintiffs grand-father
purchased the suit house. P.W. 1 also has not produced any document to prove that the sale deed for the purchase of the suit house stood at any
time in favour of Narayanasamy Mudaliar, the paternal grandfather of the plaintiffs. On the other hand, the contesting defendants have produced
Ex. B-4, the registered sale deed dated 30-5-1942 for Rs. 2,500/-executed by Chinnammal and others in favour of Chinappa Mudaliar. It is the
evidence of D.W. 1, the 17th defendant, that the suit house was purchased by Chinnappa Mudaliar himself under Ex. B4, that Chinnappa Mudaliar
had mortgaged the suit house to the Co-operative House Mortgage Bank at Erode and that he then handed over the document Ex. B4, that is title
deed, to the bank. His further evidence is that after he purchased the suit house in Court auction subject to encumbrance, in favour of Co-
operative House Mortgage Bank, he discharged the mortgage as disclosed by Ex. B-6, copy of the ledger maintained by the Co-operative House
Mortgage Bank Ex. B-5, the certificate issued by the Bank and that the Bank then handed over Ex. B-4, the sale deed, to him.. The recitals in Ex.
B-4 are that Ex. B-4, the sale deed, was executed by the heirs of Mottaiya Mudaliar in favour of Chinnappa Mudaliar, that Mottaiya Mudaliar had
purchased the property under the sale deed dated 2.4.1937 from one Karuppanna Mudaliar and the sale under Ex. B-4 was for Rs. 2,500/. The
recitals in Ex. B-4 themselves disprove the plaint allegations that Chinnappa Mudaliar sold the suit house in favour of Mottaiya Mudaliar nominally
and again got it transferred in his name from Mottaiya Mudaliar. Therefore, we find that it has not been proved that the suit house is the ancestral
house of the plaintiffs.
It is relevant also in this connection to note that the decree in O.S. No. 971 of 1952 was passed against Chinnappa Mudaliar during his
lifetime. Subsequently, he filed E.P. No. 7 of 1955 which was later transferred and numbered as I.P.I of 1956 of Sub Court, Erode, and during the
pendency of the said I.P. he died. During the pendency of the Insolvency Petition an interim Receiver was appointed and he took possession of the
suit house and leased to third parties. Those facts are not disputed. Later, the suit house was brought to sale in execution of the decree in O.S. No.
971 of 1952 and D.W. 1 the 17th defendant, purchased the same in Court auction as disclosed by Ex. A6, the registration copy of the sale
certificate issued to him. D.W. 1 also got possession of the suit house through Court as disclosed by Ex. B 1, the certified copy of the possesion
warrant and return and also as disclosed by Exs. A7 and A8, the certified copy of the possession receipt and the certified copy of the possession
warrant in E.A. No. 490 of 1963 in O.S. No. 971 of 1952 of the District Munsif''s Court, Erode. It is also relevant in this connection to note that
the 17th defendant as a third party Court auction purchaser purchased the property for valuable consideration. He is not a decreeholder against the
estate of Chinnappa Mudaliar. It is contended on behalf of the 17th defendant and the 15th defendant herein that unless there is allegation and
evidence to prove that the 17th defendant was a party to any fraud, along with the Court auction purchaser, the 17th defendant being a third party,
the decree holder could maintain his title to the suit property acquired under the Court auction purchase, even if the decree in execution of which
the property was sold, turned out to be invalid for any ground or reversed. In this regard reliance is placed on behalf of the 17th defendant to a
decision reported in Janak Raj Vs. Gurdial Singh and Another, . A decision in Gangathara Pandithar v. Ratbabai Ammal and Panchanath Ayyar
I.L.R.(1883) Mad. 237, is also relied on for the proposition that the Court auction sale should be upheld and the title of the purchaser should be
confirmed even if the execution petition in which the sale was held was a tima-barred one. Adecision in Lalji Sah and Others Vs. Sat Narain
Bhagat and Others, , is relied on for the proposition that if there is any fraud on the part of the decree holder, it could not affect the auction
purchaser''s title, as the auction purchaser is a third party purchaser. It is also pointed out on behalf of the 17th defendant that the interim Receiver
appointed in the Insolvency Proceedings would suspend the running of time. In this regard a decision in Premlata Agarwal v. Lakshman Prasad
Gupta and Ors. (1971) 2 S.C.J. 55 : A J.R. 1970 S.C. 1525, is relied on. The 17th defendant as D.W. 1 has specifically stated in his evidence
that as he is a third party Court-auction purchaser, his title was to be confirmed and could not be impeached even if the execution in O.S. No. 971
of 1952 is found to be barred by time.
The appellants want to set aside the decree set out in Schedule B to the plaint. Exs. A2 to A5 and A10 to A12 are the certified copies of the
suit register extracts respectively in O.S. Nos. 722 of 1958, 733 of 1958, S.C.1058 of 1958, O.S. No. 971 of 1952, O.S. No. 758 of 1958,
O.P. No. 624 of 1958 and O.S. N0. 734 of 1958 mentioned in B schedule to the plaint. According to the appellants, the debts that ripened into
those decrees are fictitious debts and they were creations of those decree holders and Chinnappa Mudaliar to defeat the claims of other creditors
of Chinnappa Mudaliar and those debts were created to recite in the I.P. petition and Chinnappa Mudaliar had also entered in his accounts those
debts and has admitted them as true in the. Insolvency Petition for the said fradulent purpose. The said plaint allegation has not been proved. It is
the allegation of P.W. 1 that it is P.W. 2 who supplied the informations set out in the plaint. P.W. 2 made no whisper about these debts, in his
evidence. It is also relevant in this connection to note that the age of P.W. 1 is not ripe enough to give evidence relating to the alleged fictitious
nature of the transactions said to have been created for the purpose of Insolvency Petition in pursuance of any fraud and collusion between
Chinnappa Mudaliar and those creditors.
14-A. Because during the alleged transaction P.W. 1 was young and could not have understood it even though any transaction of that nature was
indulged in.
On behalf of the appellants, another contention that is raised is that the suit O.S. No. 19 of 1958 on the file of Sub Court, Erode, filed by the
third defendant, V.S. Arunachala Mudaliar, against the legal representatives of Chinnappa Mudaliar was dismissed on the ground of limitation as
seen from Ex. B2 the printed copy of the judgment in that suit. It is contended on behalf of the appellants that if similar contentions had been raised
in the other suits by their guardian, those also would have shared the same fate. From this we cannot held that the other decrees also would have
ended in a similar manner unless it has been proved that there was no difference between O.S. 19 of 1958 and other suits. It is also relevant in this
connection to note that Muthammal, the grand-mother of the plaintiffs instituted the suit O.S. No. 6 of 1959 on the file of Sub Court, Erode, for
partition of the suit property against the defendant, attacking the debts in their favour. O.S. No. 19 of 1958 and after its remand and O.S. No. 6 of
1959 were both tried together and a common judgment was rendered and Ex. B2 is the printed copy of the common judgment in both the suits. It
has been found in Ex. B2 that the suit property, i.e, the house property, is not the ancestral property of the plaintiffs-appellants, that the
''Kulachara'' of the appellants'' family is only business, that the immorality attributed to Chinnappa Mudaliar is not true, and that the debts quoted in
the Insolvency Petition filed by Chinnappa Mudaliar are true. As already stated the 17th defendant who had examined himself as D.W. 1
purchased the suit property subsequent to the institution of O.S. No. 6 of 1959. Therefore, it is observed in paragraph 27 of the judgment in Ex.
B2 that it could not be said that no property is available for partition. The correct interpretation of the observation in paragraph 27 of Ex. B2 is that
the subsequent event i.e., the Court auction sale that took place subsequent to the filing of the suit O.S. No. 6 of 1959 could not affect the relief
prayed for in O.S. No. 6 of 1959, if the plaintiffs in that suit were otherwise entitled to. The interpretation placed in the present plaint that
paragraph 27 of Ex. B27 declared the right of the plaintiffs to have partitioned the suit property is a misconceived one. A reading of the entire
judgment would show that if the plaintiffs were entitled to get any right in O.S. No. 6 of 1959 it could not be defeated by the Court sale
subsequent to that suit. No doubt it has been observed in Ex. B2 that the plaintiffs should pray for setting aside the decree. From that, the plaintiffs
have chosen to add another string to their bow that their next friend in O.S. No. 6 of 1959 has failed to include a prayer for setting aside the
decrees and, therefore, she acted in gross-negligence in the conduct of the suit.
It is relevant in this connection to note that a mere inclusion of the prayer to set aside the decree in O.S. No. 6 of 1959 will not bring the result
desired unless there is proof that the plaintiffs are not bound by the debts incurred by the father. It is also relevant in this connection to note that the
judgment in the earlier suits have not been produced. Ex. B2 shows that the property was the self-acquired property of the father and the debts
were simple money debts incurred by Chinnappa Mudaliar for trade purposes and that those debts were not tainted with illegality or immorality.
Therefore, the omission to include the prayer to set aside the decrees in the suit O.S. No. 6 of 1959 cannot afford as an adequate ground for the
plaintiffs to charge the guardian with negligence.
It is also relevant in this connection to note that no material has been placed before the Court in support of the contentions that the suits in
which decrees were passed against the plaintiffs were not in time. Further, the question, whether the appointment of the interim Receiver, who has
taken possession of the estate of the Insolvent, would suspend the running of limitation, is a nice question of law not free from doubt. In support of
this contention, the Learned Counsel for the appellants has referred to a decision in Nagarur Sam bayya v. Nagrur Pedda Subbayya (1937) 2
H.L.J. 703 : ILR 1938 Had. 439. He has further contended that the position has been made clear by Section 15 of the present Limitation Act. On
the other hand, the Learned Counsel for the respondents herein has relied on a decision reported in R. Subramaniya Ayyar v. Dharapuram
Janopakara Nidhi Ltd. AIR 1928 Had. 454, and Sinnaruthevan and Ors. v. Nachiappa Chettiar (1955) 1 H.L.J. 51 : 67 L.W. 894 and Prem Lata
Agarwal Vs. Lakshman Prasad Gupta and Others, , with respect to the question of limitation. It is relevant in this connection to note that the
guardian has engaged a competent lawyer to fight on behalf of the appellants. O.S. No. 6 of 1959 filed by the next friend on behalf of the plaintiffs-
appellants herein is also through a competent lawyer engaged by next friend of the plaintiffs appellants herein. In Daivam maland Ors. v.
Selvaramanuja Naiakdr and Ors. AIR 1936 Had. 479, it was held that failure on the part of a qualified lawyer engaged by the guardian to raise a
point of law could not be a ground to hold that the guardian was negligent in the conduct of the suit. It has also been held in the said decision that
the failure on the part of the guardian to prefer an appeal does not amount to negligence, as the guardian is not bound to prefer an appeal where it
will be useless. In N.P.L. Eagappa Chettiar minor through his next friend V.A.B. Subramanian Chettiar v. R m. S.V.L. Ramanthan Chettiar and
Anr. (1942) 1 H.L.J. 155 : AIR 1942 Had. 384, it was held that it is open to a minor to challenge a decree passed against him on the ground that
his guardian had been grossly negligent in the conduct of the suit in which the decree was passed even in the absence of fraud or collusion. A
decision in Narayanan Nambooripad and Others Vs. Gopalan Nair and Another, , is relied on for the proposition that gross negligence on the part
of guardian can be inferred from his conduct in not setting up proper defence. The Learned Counsel for the appellants also does not dispute the
proposition of law laid down therein. Further the same decision also lays down that the negligence on the part sic the guardian in order to put a
good ground for the avoidance of the decree must be of such character as to justify the inference that the minor''s interest was not at all protected
and in substance though not in form the minor went unrepresented in the trial Court. On the other hand, we find the next friend taking interest and
instituting the suit O.S. No. 6 of 1959 and engaging a qualified lawyer to conduct the suit. P.W. 1 also has not stated that his grand-mother was
party to any fraud or collusion. He wanted to infer negligence on the guardian because of the fact that suit instituted by her ended in dismissal. No
fresh material has been placed by the minors in the instant suit than one supplied by the guardian in O.S. No. 6 of 1959 to drive the Court to come
to a different conclusion and charge the guardian and the negligence pleaded has not been proved in this case.
It is also relevant to note that O.S. No. 971 of 1952 was a money suit instituted against Chinnappa Mudaliar and a decree was obtained even
during his lifetime. In Hungul Pershad Dichit and Anr. v. Grijakant Lahiri Chowdhry I.L.R.(1885) Mad. 123, it was held that even if property in
Court auction has been sold in pursuance of time-barred execution application, it could not be relied on as a ground to defeat the right acquired by
a third party auction-purchaser. In the instant case before us the 17th defendant, who has gone into the box as D.W. 1 has acquired title to the suit
house, the only property involved in the suit, by means of a purchase in the Court sale. As he is a third party bona fide Court auction purchaser,
and as there is no evidence or charge that D.W. 1 is a party to any fraud either with the decree-holder or independently, the right of D.W. 1 to the
suit property cannot be impeached. As the decision in O.S. 6 of 1959 cannot be set aside, the present suit is certainly barred by the principle of
res judicata inview of the decision in O.S. 6 of 1959. Therefore, the lower Court is right in holding on issue 1 that the decrees mentioned in the
plaint are binding on the plaintiffs and not liable to be set aside. The finding under issue No. 2 rendered by the Court in the suit that the plaintiffs-
appellants herein are not entitled to the relief of partition as well as the finding under issue No. 4 that the suit is barred by the principle of res
judicata are correct and are hereby confirmed.
D.W. 1 has specifically admitted, that the second defendant is residing in a street behind Easwaran Koil Street at Erode and that he does not
know whether he is living separately and not with the plaintiffs for a period of 12 years. P.W. 1 has stated that the second defendant has not been
living with the plaintiffs'' family, that P.W. 1''s mother told that the second defendant has not been living with his family even before the birth of
P.W. 1 and that the second defendant was not living with the plaintiffs even during the lifetime of his father. Thus, it has not been proved that the
second defendant was joint family manager of the family of the plaintiffs. So, it cannot be held that the suit is barred by time on account of the
second defendant''s failure to take action earlier. P.W. 1 has produced the birth extract Ex. A9 and it shows that he was born on 11.6.1947. The
suit was instituted in forma pauperis even in 1967. Therefore, the finding of the Court below under issue 4 that the suit is not barred by limitation is
correct.
The finding of the Court below under issue No. 5 that as the plaintiffs are not going to get any relief and as the will referred to in the written
statement of the 21st defendant has not been produced and proved, we cannot say that the legatees thereunder are necessary parties to the suit is
also correct. The finding of the Court below under issue No. 6 that the appellants are not entitled to the relief claimed is correct. The Judgment and
decree of the Court below are hereby confirmed. There is no merit in the appeal. None of the contentions raised on behalf of the appellants herein
can be upheld. Hence, the appeal is dismissed with costs. The appellants are directed to pay the Court fee payable on the memorandum of
grounds of appeal to the Government.