K.B Lall v. K.N Ojha

Narayan, J.:— The plaintiff is the appellant, and the appeal arises out of a suit to set aside a mortgage decree and the sale held in execution of the decree. The plaintiff is the son of one Ragho Lal and the grandson of one Deosaran Lal. Deosaran Lal had executed a, simple mortgage bond for a consideration of Rs. 697 in favour of the defendants-first-party on the 29th April, 1923, and he died in 1333 Fasli leaving surviving him his son Ragho Lal and his grandson Krishna Behari Lal, the present plaintiff. Ragho Lal had become lunatic, and his wife, Ramdhari Kuer, had been appointed his guardian. Ragho Lal left his home in the year 1933, and since then nothing has been heard about him, and he has been taken as dead.

The mortgage was with regard to 9 bighas 19 kathas 1 dhur of land of khata no. 1, and the suit to enforce this mortgage was instituted after the death of Deosaran Lal. On the 16th May, 1936, a preliminary mortgage decree was passed in favour of the defendant-first party for realisation by sale of Rs. 1,245-7-9. This decree was made final on the 21st August, 1937, and it was executed in the year 1938. The mortgaged property was sold in execution of the mortgage decree on the 12th September, 1939, for Rs. 1,486-5-9, and was purchased by the decree-holders, the defendants-first-party. After their purchase, the defendants first-party redeemed two rehans with regard to the property, the total value of which is said to be Rs. 6,935.

The plaintiff has alleged that Deosaran Lal was a ganja smoker and a man of immoral habits, and that whatever money came into his hands was spent for immoral purposes. He has further alleged that Deosaran had never any genuine need for borrowing loan, and that, in the mortgage bond in question, only fictitious necessities were mentioned. The proceedings in connection with the suit as well as the execution proceeding have all been challeged by the plaintiff as fraudulent, and Mauiavi Muhammad Majeed, a pleader practising at Motihari, who was appointed as the guardian ad litem of the plaintiff in the mortgage suit, is said to have acted in collusion with the plaintiffs of that suit, that is, the present defendants-first-party. The plaintiff has prayed that the decree and the sale be declared fraudulent and illegal, and that the defendants-first-party be directed to give up possession of the lands redeemed by them on receiving from him the amounts that they had paid for the redemption of the rehan deeds.

Most of the defendants first-party contested the suit, and they had all filed a joint written statement. It was contended by them that Deosaran Lal was not a man of immoral habits and was not addicted to intoxicants, that the amount for which the mortgage came to be executed had been borrowed by him for legal necessities, and that there was no fraud committed in connection with any of the proceedings. It was further contended that the defendants had purchased the suit lands for a very proper price and had paid encumbrances over the property amounting to Rs. 7,702. Possession had been delivered to the defendants-first-party of the property sold on the 17th May, 1940, and, according to the defendants' allegation, they have been in possession of the property ever since possession was delivered to them under the orders of the Court.

The learned Subordinate Judge has dismissed the suit after overruling all the contentions raised on behalf of the plaintiff.

The plaintiff has consequently come up in appeal against the decision of the learned Subordinate Judge, and Mr. K.C Sanyal, who has argued this appeal on behalf of the appellant, has pressed practically all the contentions urged in the Court below except the contention that Deosaran Lal was a man of immoral habits and was addicted to ganja.

This appeal is absolutely without any merit, and, therefore, I think it would be more convenient if I dispose of first the questions of law raised by Mr. K.C Sanyal on behalf of the appellant.

The first question of law which has been raised by the learned Counsel is that there was no proper representation of the present plaintiff in the mortgage suit, because there was no guardian appointed for representing his interest before the Court in accordance with law. Reference has been made to sub-rule (2) of rule 4 of Order XXXII of the Code of Civil Procedure which runs as follows:—

“Where a minor has a guardian appointed or declared by competent authority, no person other than such guardian shall act as the next friend of the minor or be appointed his guardian for the suit unless the Court, considers for reasons to be recorded, that it is for the minor's welfare that another person be permitted to act or be appointed, as the case may be.”

Mr. Sanyal has strongly relied on the words “unless the Court considers for reasons to be recorded”, and he has submitted that the appointment of Maulavi Muhammad Majeed, Pleader, as the guardian ad litem for the defendant no. 1 in the mortgage suit was absolutely without jurisdiction, because the Court never recorded any reason for appointing another person as the guardian for the minor. In this connection, the learned Counsel has further submitted that, though ostensibly the mother of the plaintiff was served with a notice as one acting as the guardian on his behalf, the plaintiffs of the mortgage suit deliberately and designedly refrained from giving out to the Court that she was a guardian appointed by a competent authority. Of course, it is an undisputed position that the mother of the plaintiff had been appointed as his guardian under the provisions of the Guardians and Wards Act (VIII of 1890). It is also an undisputed position that, in the plaint of the suit or in the processes that came to be served on the lady, she was not described as a certificated guardian of this plaintiff. In order that the legal position may be clearly understood, it is necessary to examine the entire provisions of rules 3 and 4 of Order XXXII. Rule 3 contains the rules under which the guardian for the suit has to be appointed by the Court for representing the minor defendant. sub-rule (4) of rule 3 lays down that no order shall be made on any application under this rule except upon notice to the minor and to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian, upon notice to the father or other natural guardian of the minor, or, where there is no father or other natural guardian, to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule. It is important to note for appreciating the contention raised by Mr. Sanyal that the sub-rule lays down that, where there is a guardian of the minor appointed by a competent authority, the notice has to be served on him or her, as the case may be, and only when there is no such guardian appointed has a notice to be served upon the father or the other natural guardian of the minor. Rule 4 contains the provisions indicating as to who can act as the next friend or as guardian for a suit, and sub-rule (2) of this rule, which has been quoted above, lays down that, whenever there is a guardian appointed by a competent authority, no other person can act as the guardian for the minor unless the Court considers, for reasons to be recorded, that it is for the minor's welfare that another person be appointed as his guardian. On examining the sub-rules contained in rule 4, it appears that all these sub-rules are meant to control the appointment of a guardian, and sub-rule (4) specifically lays down that, where there is no other person fit and willing to act as guardian for the suit, the Court may appoint any of its officers to be such guardian. In this case, if the service report is not discredited, the certificated guardian, after service of notice on her, did not appear, and could, therefore, be taken as a person not fit and willing to act as guardian for the suit. This being the position, it was incumbent on the Court to appoint one of its officers as the guardian. sub-rule (4) of rule 4 was amended by this Court in the year 1927 (vide notification no. 36, dated the 14th May, 1927, published in the Bihar and Orissa Gazette, dated May 25, 1927). The amendment is important for our present purpose, because by this amendment the words

“Where the person whom the court, after hearing objections, if any, under sub-rule (4) of rule 3, proposes to appoint as guardian for the suit, fails Within the time fixed in a notice to him, to express his consent to be so appointed.”

have been substituted in place of the words

“Where there is no other person fit and willing to act as guardian for the suit,”.

Before this amendment, it had to be gathered from the circumstances that there was no person fit and willing to act as guardian; but the rule as it now stands provides that, if there is no response to the notice issued by the Court, the Court has to appoint one of its officers as the guardian. If, after the service of notice, the certificated guardian, though not described as such, did not appear before the Court, the rules must be deemed to have been sufficiently complied with in this case. This would be the combined effect of the amended sub-rule (4) and the provisions contained in rule 3. The appointment of the pleader, Mr. Majeed, as guardian for the suit was, therefore, justified, and there is no ground for holding that this appointment was without jurisdiction. It is true that the Court was not apprised of the fact that there was a certificated guardian; but, even if the Court would have been informed that there was a certificated guardian, it could not but have appointed one of its officers as guardian after the notice had been served on the certificated guardian. Mr. Sanyal referred to a decision of the Madras High Court in Bhimaji v. Hussain Saheb in which it had been held that, if a minor has a guardian appointed by a competent authority, he alone can represent the minor in any litigation, and that consequently a decree obtained against such a minor represented not by such guardian, but by another, though the Court had acted in ignorance of the existence of such a guardian, was not binding on the minor. The facts of this Madras case are clearly distinguishable from the facts of this present case, inasmuch as in the Madras case an officer of the Court had been appointed as the guardian at the instance of the plaintiff of the suit without the Court being informed that there was a guardian appointed for the minor by a competent authority. In the Madras case, there could not be any service effected on the certificated guardian as in this case, and the appointment of the guardian for the suit was made not only in utter ignorance of the fact that there was a certificated guardian but without any notice whatsoever to the certificated guardian. Their Lordships of the Madras High Court followed a well-known decision of the Privy Council in Rashid-Un-Nisa v. Muhammad Ismail Khan, and I can observe, with the greatest respect for the view taken by their Lordships, that their Lordships were very much influenced in their decision by the dictum laid down by the Judicial Committee in Rashid-Un-Nisa v. Muhammad Ismail Khan. The ratio decidendi of the Privy Council case, however, is that a minor should be taken to be completely unrepresented in the litigation if a disqualified person is appointed as his guardian. The Privy Council case has, therefore, got no relevance in this present appeal before us. On the other hand, there are several other authorities in which it has been distinctly pointed out that, when the Court, in ignorance of the fact that the minor has a guardian appointed by a competent authority, appoints another person, that does not by itself vitiate either the decree passed in the suit or the sale held in execution of the decree. As early as in the year 1907, a Division Bench of the Allahabad High Court held that, where the Court, in ignorance of the fact that there was a certificated guardian, had appointed another person as the guardian, this amounted to no more than irregularity, and could not vitiate the decree or the sale consequent upon the decree—Dammar Singh v. Pirbhu Singh. This decision was followed by the same High Court in a recent case, Dharampal Singh v. Mool Chand, and I respectfully adopt the observation of Allsop, J., that it is one thing to say that a minor is not represented at all if represented by a person who is absolutely disqualified from representing him and quite another to say that he is not represented at all if represented by a person whom the Court in its discretion could appoint to represent him but might not have appointed, if it had been aware of all the relevant facts. The whole question is whether any prejudice has been caused to the minor, and in the absence of any allegation of fraud or prejudice to the minor caused by the irregularity, the proceedings must be regarded as valid. In Punyabrata Das v. Monmohan Ray a Division Bench of this Court observed as follows:—

“Then it is argued on the facts of the case that the pleader guardian was appointed without notice to the minor himself. It has long been held and the best authority is the case of Walian v. Banke Behary Prasad Singh (I.L.R 30 Calcutta 1021), decided by the Privy Council and followed in Pande Satdeo Narain v. Ramayan Tewari (A.I.R 1923 Patna 242), that where the Court has in fact had before it a guardian ad litem appointed by the Court and the guardian ad litem has appeared on behalf of the minor and the order has been made against the minor—the Court will not consider as an illegality vitiating the proceedings the want of notice to the minor. It is an irregularity and that irregularity cannot be taken advantage of by the minor unless lie can show positive prejudice to the conduct of the proceedings on his behalf.”

In another case, Mohammad Abdus Salam v. Kamalmukhi, which is also a Bench decision, this Court held that the appointment of a guardian of a minor for the purpose of suits is really a question of procedure as had been held by their Lordships of the Judicial Committee in Walian v. Banke Behari and that an error in matters of procedure is not generally revisable. The Madras High Court held in Rarichan v. Manakkal Raman that the failure to record reasons under clause (2) of rule 4 is only an irregularity and will not by itself vitiate the decree if the minor is in fact represented by a guardian appointed by the Court. In a very recent decision, Bhersinghbhaoo v. Tularam Bhaoo, the Nagpur High Court has considered the question at some length, and has come to the same conclusion. Their Lordships referred to the Madras decision and to various other reported decisions, and, I say with respect, rightly pointed out that there was a string of authorities in which a view contrary to the one taken in Bhimaji v. Hussain Saheb had been taken. These authorities undoubtedly turn upon two facts, namely, that the Court was not aware of the existence of a certificated guardian and had appointed another, without adverting to this fact, and also that in those cases no prejudice to the minor had been established. In Hitendra Narayan Singh v. Sukhdeb Prasad Jha* Jha it was pointed out by this Court that, though, under the section as it stood before its amendment in 1927, it was necessary for the Court to have some evidence that there was no other person fit and willing to act as guardian of the minor for the suit before it could appoint any of its officers to be such guardian, the appointment of one of its officers as the guardian could be regarded only an irregularity and the minor would be deemed to be validly represented by the guardian even if no enquiry was directed towards finding as to whether there was any other person fit and willing to act as guardian. There is no reported case exactly parallel to this present case before us in which it is really the certificated guardian to whom the notice was sent by the Court, though she was not described as such, and the appointment of the officer of the Court was made only when she failed to appear. Even the case in I.L.R 43 Madras 808 cannot, to my mind, be cited as an authority in this present case before us, because there the certificated guardian was completely ignored, and here it is the certificated guardian whom the Court wanted to appoint as the guardian for the suit in the first instance, and, it is only when she failed to, appear, the Court had to act according to sub-rule (4) of rule 4 of Order XXXII as it stands after the amendment. The appointment of Mr. Majeed was, therefore, not illegal or invalid, and the minor, having been represented by him, must be deemed to have been effectively represented. It is another point if the guardian has acted in collusion and concert with the opposite party or is guilty of gross negligence. This is a question of fact which I shall determine later. The question of law raised by the learned Counsel, appears to be without any substance, and my finding, in agreement with the learned Subordinate Judge, is that the appointment of Mr. Majeed as the guardian for the suit was a valid appointment.

The next contention urged by Mr. Sanyal is that the sale held in execution of the decree should be deemed to be without jurisdiction, because it was held without the value of the land having been estimated according to the provisions of section 16 of the Bihar Money-Lenders Act, 1938. The provisions of sections 1, 2, 9-17, 21-23 and 26 of the Bihar Money-Lenders Act, 1938, came into forcen the 15th of July, 1938, and it was on the 4th July, 1938, that the executing Court passed an order for the issue of sale proclamation fixing the 12th September, 1938, for sale at 11 a.m Mr. Sanyal drew our attention to the use of the word shall in section 16(1) of the Money-Lenders Act of 1938, and contended that the Court executing, the decree had to hear the parties to the decree and estimate the value of the property put to sale with the intention of finding out whether the proceeds from the sale of a portion of the property would be sufficient to satisfy the decree. It is true that, if the new law had come into operation before the sale, it had to be followed. But, as pointed out by a Division Bench of this Court in Kamleshwari Prasad v. Mahadeo Sahai*, the Court was a Court which had jurisdiction to execute decrees under the procedure in the Code of Civil Procedure unless facts were brought to its notice making that procedure inapplicable. As a matter of fact, we have examined the sale proclamation, and we find that the value of the property had been estimated and notified. I shall presently show that the value that had been put on the property was a proper value, and that the guardian did not act negligently if he did not move the Court either for fixing the value or for granting instalments. Section 16(1) shows that what is required is that the Court should hear the parties. It does not specifically provide for the issue of a notice, though there are decisions of this Court with regard to the Bihar Money-Lenders Act of 1939 which lay down that notice under section 13 of this Act ought to issue. In this case, the Court had acted according to the provisions of Order XXI rule 66 of the Code of Civil Procedure, and it acted legally and with jurisdiction if it acted according to the provisions of Order XXI rule 66. There was a valuation put upon the property, and this valuation was duly notified. It would not, therefore, be, in my opinion, sound to contend that the Court had no jurisdiction to sell the property, because it had not acted strictly according to the provisions of section 16(1) of the Bihar Money-Lenders Act which came into force after the order for the issue of sale proclamation had been passed. We cannot ignore the circumstance that, when the sale proclamation was ordered to be issued, the Bihar Money-Lenders Act of 1938 was not in force at all.

The second contention urged by Mr. Sanyal must also be rejected.

So far as the merits of the case are concerned, the present appellant has not got even a presentable case. He has not been able to establish that Mr. Majeed had acted in collusion with the present defendants or had acted negligently, and I find that Mr. Majeed did all that could possibly be done on behalf of the present plaintiff in the action based on the mortgage in which, in fact, this plaintiff had no defence worth the name to offer. In spite of the elaborate argument advanced by Mr. Sanyal, he has not, and I must say quite fairly, said a word as to the nature of the claim that had been made in the mortgage suit. The plaintiff has not contended, at least before us, that the claim that had been made in the mortgage suit was a false or a baseless claim. The mortgage bond had been executed on the 29th April, 1923, and this plaintiff was born in Kartik 1332 Fasli corresponding to October-November, 1924. A Mitakshara son acquires only by birth an interest in the family property, and he thus gets an interest only in what is left of the ancestral property, and not in what has gone out. After the mortgage, the son could have an interest only in the equity of redemption, and it was not open to him to question the transfer by way of mortgage. The suit was instituted on the 18th May, 1935, and, though the principal with interest amounted to Rs. 3,729-15-3, the plaintiffs of the mortgage suit, that is, the present defendants-first-party, claimed only Rs. 999 on the foot of the mortgage. They remitted the heavy sum of Rs. 2,730-15-9 obviously for the reason that the property mortgaged was only 9 bighas 19 kathas 1 dhur which, at that time, could not have fetched the price which is assessable on it now according to the prevailing selling rates of lands in the country. There can be no doubt that lands in the year 1935, when the plaint was filed, or in the year 1938, when the sale took place, were selling very cheap, and it is for this reason that the plaintiffs of the mortgage suit though it fit to claim only Rs. 999 in the mortgage action. This mortgage debt had been mentioned by the plaintiff's mother as one of the debts payable on behalf of the minor in the application which she had filed under section 10 of the Guardians and Wards Act. The learned Subordinate Judge has discussed in detail the fact relating to the proceedings in the suit and the execution, and the learned Counsel for the appellant could not contend before us that there is any wrong statement made in the judgment of the learned Subordinate Judge. The summons and notice had been properly served on the plaintiff and his mother before the Court appointed Mr. Majeed as the guardian ad litem. So far as the service of summons is concerned, Mr. Sanyal submitted that the village of the defendant as mentioned in the process being Narkatiya, the peon to whom the process had been made over could not have gone to Dharharwa where the service appears to have been effected. The two villages are only two or three miles apart, and the address given in the plaint was Narkatiya hal mokam Dharharwa. There was nothing wrong if the peon, after not being able to find out the defendant in Narkatiya, went to village Dharharwa and served the process there. The fact that both the villages Narkatiya and Dharharwa are mentioned in the service report is, in my opinion, a circumstance which, instead of discrediting the report, shows that the peon took some pain for finding out the defendant and effected service on him at Dharharwa when he was not found at Narkatiya. Mr. Majeed's evidence in this case is amply supported by the order-sheet of the mortgage suit; and the only inference which one can reasonably draw after a perusal of the order-sheet is that Mr. Majeed was very anxious to have adequate instructions from the lady for filing a proper defence in the case. He was a guardian appointed by the Court, and it was difficult for him to act absolutely without instructions. On the 16th September, 1935, he was permitted to go to the residence of the natural guardian for getting instructions, and thereafter he field ismanavisi of witnesses. Several persons were cited by him as witnesses, and those persons could not have been cited by him until he had received instructions from the lady. Not only were a number of witnesses cited but a few witnesses were examined on behalf of the minor, and in view of the contentions urged by him in his written statement, in view of the fact that he had taken all possible precautions for obtaining instructions from the lady, and also in view of the fact that he had filed ismanavisi and examined witnesses in the case, it will be preposterous to contend that he was acting in collusion with the defendants. A perusal of the written statement filed by him will show that no better defence could be put forward on behalf of this plaintiff. He went to the length of stating that the family, being in affluent circumstances, had not the necessity of incurring any debt, though there are documents on the record which go to show that the family was really not in affluent circumstances and had to incur debts on several occasions. The plea that Deosaran Lal was not a man of good morals was taken in the written statement, and this plea, though it has been taken in the present plaint, could not be pressed before us. The written statement had been filed on 1st August 1935 and not on 1st April 1935 as the paper-book shows. The judgment of the mortgage suit shows that some of the contentions were seriously pressed before the learned Munsif, and the learned Munsif had to consider those contentions with care. The defence that had been set up might have been overruled; but for that the guardian was not responsible. As I have already said, even here Mr. Sanyal could not contend that the claim as made in the niortgage action was a false one, and, if the claim was not a false one, there could not be any plausible defence in the suit. Keeping in mind these difficulties under which the guardian must have laboured, it will be simply, reasonable to hold that he did all that was possible for him to do in the case, and it is regrettable that the plaintiff had no scruple in denouncing the guardian in this present litigation.

The service of the processes connected with the final decree and the execution proceeding has also been satisfactorily proved, and I was not able to appreciate the argument of Mr. Sanyal that the guardian should have filed objections at the final stage and also in the execution proceeding. It is not the business on duty of an officer who is appointed as guardian ad litem by the Court to file all sorts of frivolous objections, and undoubtedly in this case it would not have been decent on the part of the guardian to object to the decree being made absolute or to file objection in the execution proceeding when the judgment-debtor had not been able to pay the decree money. Order XXXIV rule 5 of the Code of Civil Procedure does not even require that a notice should be served for a decree being made final. Here, however, a notice was actually served on the guardian ad litem, and the guardian ad litem, having known the financial condition of the plaintiff's family and being fully aware of the fact that he could have no reasonable objection to the decree being made absolute, could, not resort to dilatory tactics. Mr. Sanyal submitted that, after the Bihar Money-Lenders Act had come into force, the guardian ad litem should have applied for instalments. But in this case the guardian ad litem was perfectly justified if he did not apply for instalments before the date fixed for sale. As I have already pointed out, a large amount had been remitted by the plaintiffs of the mortgage suit, and, though the plaintiffs of the mortgage suit were entitled to claim about four thousand rupees, they had claimed only Rs. 999. The guardian ad litem acted very properly if, because of this heavy remission, he did not apply for instalments. The learned Subordinate Judge has rightly pointed out that it was not the intention of the defendants-first-party to snatch a decree from the Court anyhow, and that the guardian ad litem, instead of being negligent, had taken all proper steps. Neither negligence nor collusion on the part of the guardian ad litem has been established, and I cannot help observing that the present suit was started in a spirit of desperation. When this suit was filed, the prices of lands had risen very high, and the plaintiff naturally felt inclined to take a chance. The execution had been started in June, 1938, and judicial notice must be taken of the, enormous rise in the prices of lands since then. The property was properly valued at that time, and it was sold for an adequate price, in view of the fact that there were encumbrances amounting to about Rs. 7,000 over it. The encumbrances were duly notified.

In the result, therefore, I must dismiss this appeal with costs.

Jamuar, J.:— I agree.

S.H

Appeal dismissed.