Rajkumar v. Mangad Rai

Mukerji and Bennet, JJ.:— This appeal has no force and has been filed mainly in the interests of the next friend who was responsible for the suit.

The ostensible plaintiff to the suit was a minor, Rajkumar, on whose behalf the appeal is. His father Lachman has executed two mortgages in favour of the other defendants, and on these mortgages decrees have Page: 908been obtained by the mortgagees and the property has been advertised for sale. The plaintiff's case was that the property was the joint family property of himself and his father Lachman Das and the mortgages having been executed without legal necessity could not support the decrees and the property could not be sold.

The defence was that the property was the self acquired property of Lachman Das, that he got it under a settlement made by his maternal grandmother and the plaintiff had no interest in the property. The defendants also urged in the written statement that the suit was a frivolous one and had been brought only to harass the defendants. The learned Subordinate Judge found that there was no foundation for the suit, that the property was the self-acquired property of Lachman Das, that the plaintiff had no interest in the property and that the suit was a frivolous and vexatious one. In the result, the learned Subordinate Judge dismissed the suit and awarded, besides ordinary costs, a sum of Rs. 50.0 as further costs by way of compensation under section 35A of the Civil Procedure Code and directed that the sum be paid by Jwala Prasad, the next friend of the minor Rajkumar.

The appellant has not printed the material documents in the case, although the value of the appeal exceeds Rs. 10,000. The reason is obvious. The appeal has no merits and the object of filing the appeal was two-fold: first, to obtain a stay of execution of the decree if possible and next, to get a reversal of the order by which Jwala Prasad was made to pay the costs.

On the merits it is abundantly clear that the property was the self-acquired property of Lachman Das. The property was originally owned by a third person and was sold in an auction sale in 1909. It was purchased by Mst. Champa Kunwar, the maternal grandmother of Lachman Das Lachman Das got the property under a deed executed by himself, his maternal Page: 909grandmother and the husband of his mother's sister Mst. Barni Kunwar. The only evidence that has been printed in the case is the evidence of a few witnesses. This evidence we have examined. It has no value, we hold that the property was the self-acquired property of Lachman Das and the plaintiff had no interest in the property. As we have already said, the appeal has no merits.

Coming to the award of extra costs under section 35A, the learned counsel for the appellant has argued that the minor might be made liable to pay the costs, but certainly not the next friend. His argument is based on the language of section 35A and is this. In section 35A a “party” has been made liable, while in section 35 larger powers have been given to the court and the court is authorized to award costs against any person whom it finds liable to pay them. But this argument does not take account of the fact that what is awarded under section 35A is “costs” and nothing but costs, although those costs are to be awarded by way of compensation. The extra costs that were awarded under section 35A, being “costs,” the order to pay it is covered by section 35 itself. In this view, there can be no doubt that the court below was justified in making the next friend of the plaintiff pay costs by way of compensation.

We hold that the appeal has no force and dismiss it with costs. The costs of the appeal will be paid by Jwala Prasad the next friend of the minor.