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Rajinder Kumar v. Sanatan Dharam Mahabir Dal & Others
Factual and Procedural Background
This revision petition challenges the order of the Additional Civil Judge (Junior Division), Bathinda dated 3 October 1997, which arose in proceedings under Section 47 read with Section 151 of the Code of Civil Procedure taken by the petitioner as an objection to execution of a decree. The first respondent (a trust) instituted a suit for recovery of possession of shops; the trial court decreed the suit. The defendants appealed to the Additional District Judge, Bathinda (appeal dismissed), then filed a second appeal in this Court (dismissed), and subsequently carried the matter to the Supreme Court which confirmed the decree. Execution proceedings were instituted to recover possession. The petitioner, who is one of the judgment-debtors, objected to execution on the ground that he was a minor when the suit was instituted in January 1972 and was not properly represented through a proper guardian; therefore, he contended the decree was not binding on him and could not be executed.
Relevant facts found in the opinion:
- The petitioner was born on 7 August 1963 (Exhibit O.1) and was therefore a minor at the time the suit was filed in 1972.
- When defendants refused to accept notice on the petitioner's behalf, an application for appointment of a court-guardian was filed and the Court appointed a guardian ad‑litem for the petitioner.
- The court-guardian engaged an advocate who also represented other defendants; the guardian's advocate adopted the written statement filed by other defendants and the suit was contested and decreed.
- During appeals the defendants (including the petitioner) were transposed as appellants; the second appeal in this Court was decided on 15 May 1992.
- By the time this Court decided the second appeal (15 May 1992), the petitioner had attained majority; an appeal to the Apex Court was also pursued.
Legal Issues Presented
- Whether a decree obtained against a person who was a minor when the original suit was instituted is void or unenforceable if a court-guardian had been appointed but there was claimed procedural irregularity in the guardian's appointment or representation.
- Whether non-compliance with Rule 3 of Order 32 (as amended in the Punjab) renders the decree a nullity where a guardian ad‑litem was appointed and the minor's interests were arguably represented.
- Whether a minor who attains majority during the pendency of appeals and who does not notify the court or place himself on record is nevertheless bound by the decree (i.e., whether silence amounts to deemed adoption of proceedings).
- Whether a suit against the manager of a Hindu joint family binds minor members of that family with identical interests.
Arguments of the Parties
Petitioner's Arguments
- The petitioner contended that he was a minor at the time the suit was instituted and was not properly represented by a guardian, and therefore the decree is not binding on him and cannot be executed against him.
- The learned counsel for the petitioner specifically argued that the provisions of Rule 3 of Order 32 of the Code of Civil Procedure as amended in the Punjab were not followed, rendering the decree a nullity.
Respondent(s)' Arguments
The opinion does not contain a detailed account of the respondents' separate legal arguments. The record, however, shows that the plaintiff pursued execution of the decree and that appeals were prosecuted (including in the Supreme Court) without the petitioner taking the objection now raised while the appeals were pending.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Lanka Sanyasi v. Lanka Yerran Naidu and Ors., A.I.R. 1928 Madras 294 | Where a minor attains majority during proceedings, if he does not come on record or inform the court, he is deemed to have elected to abide by the judgment; there is no special provision in the CPC for such a situation. | The Court relied on this authority to hold that the petitioner, having become major while appeals were pending and not informing the Court or coming on record, must be deemed to have elected to abide by the adjudication and is therefore bound by the decree. |
| Savithri v. Vasudevan Nambudiri, A.I.R. 1959 Kerala 387 | Expresses the same view as Lanka Sanyasi regarding consequences when a minor attains majority and does not seek to be placed on record. | Referenced to support the principle that failure to act on attaining majority binds the erstwhile minor to the proceedings and judgment. |
| V.K. Murugappa Mudaliar v. P.M. Desappa Nayaim Varu and Ors., A.I.R. 1950 Madras 314 | Authority aligned with the principle on minors attaining majority and effects of non-action. | Used to reinforce the Court's conclusion that the petitioner's silence after attaining majority meant acceptance of the result of earlier litigation. |
| N.M. Rayulu Iyer Nagasami Iyer & Co. v. Chockanarayanan Chettiar, A.I.R. 1954 Madras 237 | Another decision supporting the approach that a minor who attains majority and does not take steps to be represented or come on record is bound by earlier proceedings. | Cited to bolster the conclusion that the decree, which became final after the petitioner attained majority and without objection from him, is binding on him. |
| Mahabir Prasad v. Sawai Chand and Ors., A.I.R. 1958 Rajasthan 107 | Support for the proposition that suits against the manager of a Hindu joint family are binding on minor members of that family where interests are common. | Applied to find that the suit against the family manager bound the petitioner as a minor member of a Hindu joint family whose interests were identical with other defendants. |
| C.K.S. Krishnamurthi and Ors. v. Chidambram Chettiar and Ors., A.I.R. 1946 Madras 243 | Similar authority on operation of suits involving a Hindu joint family and representation of members. | Relied on to support the conclusion that the petitioner, as a member of the Hindu joint family, was bound by proceedings taken against the family manager. |
| Amrik Singh & Anr. v. Karnail Singh & Ors., A.I.R. 1974 Punjab & Haryana 315 (Full Bench) | Emphasizes that Order 32 seeks effective representation of minors; too rigid an insistence on technical compliance with procedural provisions may produce injustice where the minor's interests were effectively represented. | Used to reject the contention that technical non-compliance with Order 32 Rule 3 necessarily renders the decree a nullity where the minor's interests were effectively represented in the litigation. |
| Smt. Kameshwari Devi @ Kaleshwari Devi & Ors. v. Smt. Barhani & Ors., J.T. 1997(3) S.C. 403 | Holds that if a minor's estate was not protected, on attaining majority the minor can file a suit within three years under Section 7 of the Limitation Act; limited defences available include fraud/collusion/negligence of the guardian. | Cited to explain available remedy (a suit within three years after attaining majority) and to note that where the estate was adequately represented and interests were common, the decree binds the minor; the Court held the petitioner did not pursue such a remedy. |
Court's Reasoning and Analysis
The Court's analysis proceeds by applying established principles of law to the specific facts found on the record:
- Representation of the minor at trial: The Court found that a court-guardian was appointed after relatives refused notice and that the guardian engaged an advocate who adopted the written statement filed by other defendants. The Court treated this as evidence of representation and rejected the submission that there was no representation at all. The Court distinguished between no representation and imperfect/irregular representation, holding that only the former renders a decree a nullity, and that an irregularity will not avoid a decree unless prejudice to the minor is shown.
- Effect of attaining majority during proceedings: Relying on Lanka Sanyasi and subsequent authorities, the Court held that where a minor attains majority during the pendency of proceedings, he must come on record or notify the court if he wishes to avoid being bound by the results. Failure to do so is treated as an election to abide by the adjudication. On the facts, the petitioner became major while appeals were pending, did not inform the Court or come on record, and thereafter the appeals proceeded and were decided; consequently, the petitioner was bound.
- Prosecution of appeals and finality: The Court emphasised that the litigation was actively contested up to the Supreme Court and that no objection about the petitioner's minority or guardian's representation was taken either in this Court or in the Apex Court. The decree attained finality long after the petitioner attained majority. The Court relied on this procedural history to support the conclusion that the petitioner cannot now nullify the decree on minority grounds that he failed to raise earlier.
- Hindu joint family and suit against manager: The Court noted that the property was held on lease by the petitioner's father and that, after his death, the family members succeeded to tenancy rights; the elder brother became manager. The Court applied authority holding that a suit against the manager of a Hindu joint family binds minor members where interests are identical, and therefore the petitioner was bound by proceedings against the family manager.
- Order 32 Rule 3 (Punjab amendment) and technical non-compliance: Addressing counsel's contention about non-compliance with Order 32 Rule 3, the Court referred to the Full Bench decision in Amrik Singh which emphasises effective representation rather than mere technical compliance. The Court applied this principle to the facts and concluded that, because the minor's interests were effectively represented (the contest was on every conceivable ground and appeals were prosecuted), defects in procedural compliance did not render the decree a nullity.
- Delay and available remedy after attaining majority: The Court observed that the decree became final after a long period (two decades) and the petitioner delayed raising any objection for many years after attaining majority. The Court noted the remedy discussed in Smt. Kameshwari Devi — that a person whose estate was not protected may sue within three years after ceasing to be a minor — but found that the petitioner neither took that route promptly nor alleged the limited bases (fraud/collusion/negligence of the guardian) that would be open to him under that authority.
In sum, the Court treated the combination of (a) appointment of a court-guardian and contested litigation, (b) the petitioner's attainment of majority without placing himself on record or promptly litigating his grievances, (c) continuation of appeals to finality without objection, and (d) legal authorities prioritising effective representation over strict technicality, as determinative against the petitioner.
Holding and Implications
Holding: THE REVISION PETITION IS DISMISSED.
Implications:
- Direct effect on the parties: The impugned order sustaining execution stands, and the decree for possession may be executed against the petitioner; the petitioner's objection based on minority and alleged irregularity in representation was rejected.
- On remedial options: The Court observed that, had the petitioner's estate not been protected, the narrow remedy would have been to sue within the period prescribed by Section 7 of the Limitation Act after attaining majority, alleging fraud/collusion/negligence by the guardian; the petitioner did not pursue that remedy within the timeframe referenced by binding authority.
- Precedential outcome: The decision applies existing authorities on minors attaining majority, effective representation under Order 32, and liability of Hindu joint family members; the opinion does not purport to establish a new legal principle but applies cited precedents to dismiss the revision petition.
1. This revision petition is filed against the order of the Additional Civil Judge (Junior Division) Bathinda, dated 3.10.1997, on an objection partition under Section 47 read with Section 151 of the Code of Civil Procedure filed by the petitioner to the execution of the decree.
2. The first respondent, which is a trust filed a suit for recovery of possession of shops. The said suit was decreed by the trial Court. Against the said decree, the defendants filed an appeal to the Additional District Judge, Bathinda, which was dismissed. Against the decree and judgment of the Additional District Judge, a second appeal was also filed in this Court, which was also dismissed. The defendants carried the matter to the Apex Court. The Apex Court also confirmed the decree. To execute the said decree for possession, the petitioner (decree-holder) filed an application for execution of the same, out of which the present revision petition arises. The petitioner, who is one of the judgment-debtors, is objecting to the execution of the decree on the ground that he was a minor at the time when the suit was instituted in January 1972 and he was not properly represented through a proper guardian in the proceedings. Therefore, the decree is not binding on him and cannot be executed.
3. There is no dispute of the fact that the petitioner was a minor when the suit was filed. The suit was filed against his brother, mother, himself and his sisters. The mother and the brother of the petitioner refused to receive the notice on behalf of the petitioner. Therefore, an application was filed for appointment of a Court-guardian and the Court appointed a Court-guardian for the petitioner. The Court-guardian engaged Shri Jagmohan Lal Syal, Advocate, who was also appearing for the mother and the brother of the petitioner, who also contested the suit The Advocate appearing on behalf of the Court-Guardian, representing the mother of the petitioner, adopted the written statement filed by other defendants. After contest, the suit was decreed. The brother of the petitioner initially filed an appeal before the Additional District Judge, Bathinda. In that appeal, his mother, brother and sisters have been impleaded as respondents 2 to 8. Respondents 2 to 8 including the present petitioner moved an application on 17.7.1976 before the learned Additional District Judge to transpose them as appellants. On that application the learned District Judge passed the following order: -
"Respondent No. 2 to 8 who are defendants along with the appellant in the lower Court and are along with the appellants the heirs of deceased On Parkash Garg, have moved an application for being transposed as appellants. Shri Manmohan Lal Gupta, Counsel for the plaintiff-respondent No. 1 has made a statement that he did not oppose the application; the names of these respondents namely 2 to 8 be removed from the list of respondents and be transposed as appellants."
4. The learned District Judge dismissed the appeal. A regular second appeal was filed in this Court by all the defendants including the present petitioner Rajinder Kumar, who was the third appellant. The appeal was heard and decided on May 15, 1992.
5. There is also no dispute of the fact that all the respondents are living together. Admittedly, the petitioner was born on 7.8.1963 as evidenced by the certificate of date of birth produced by the petitioner himself, which is marked as Exhibit 0.1 Therefore, by the (time the) appeal in this court was decided on May 15,1992, the petitioner already became a major. There is also no dispute of the fact that against the judgment of this Court in R.S.A. No. 933 of 1979, dated 15.5.1992, an appeal was also filed before the Apex Court. Either in the Court or in the Apex Court, no objection has been taken by the petitioner that the decree passed against him/when he is a minor, is not validly passed, on the ground that he was not properly represented in the suit. When the appeal was pending in this court, the petitioner became major. When the appeal was decided in this Court in the year 1992, the petitioner was aged about 29 years. It is not as though the petitioner was not aware of the pendency of the appeal in this court. But the petitioner did not choose to get himself declared as major. When admittedly the petitioner had knowledge of the proceedings for eviction, it is the duty of the petitioner to get himself declared as major. When a defendant becomes a major during the pendency of the suit, he can himself come on record as a major or inform the Court that he has attained majority. If he does not move in the matter, he may be deemed to have adopted the proceedings and will be bound by the result of the litigation. It has been held in Lanka Sanyasi v. Lanka Yerran Naidu and Ors., A.I.R. 1928 Madras 294, as follows:-
"No provisions have been made in the. Civil Procedure Code, in respect of a minor defendant attaining majority. Therefore, the minor defendant who comes of age may, if he thinks fit, come on the record and conduct the defence himself. If, however, he does not do so and allows the case to proceed as though he was still a minor without bringing to the notice of the court, the fact of his having attained majority, then he must be deemed to have elected to abide by the judgment or adjudication by the Court with respect to the matter in controversy on the basis of the suit at the time."
6. The same view has also been taken in Savithri v. Vasudevan Nambudiri, A.I.R. 1959 Kerala 387 and also in V.K. Murugappa Mudaliar v, P.M. Desappa Nayaim Varu and Ors., A.I.R. 1950(37) Madras 314 and N.M. Rayulu Iyer Nagasami Iyer and Co. through one of its Partners N.M.R. Venkatakrishnba Iyer v. Chockanarayanan Chettiar, A.I.R. 1954 Madras 237. It is also pertinent to note that after he became major, an appeal was also filed in the Apex Court. The appeal was also on behalf of the petitioner. The petitioner, therefore, cannot contend that the decree was against him during his minority and is not binding on him on the ground that he was not property represented. The decree attained finality long after he attained the majority and he never objected, neither in the appeal before this court nor in the Supreme Court. The appeals are in continuation of the suit. The petitioner has not taken any objection that the decree passed against him during his majority in not binding against him and, therefore, it is liable to be set aside.
7. Admittedly, the suit property was taken on lease by the father of the petitioner. On his death, all the defendants became entitled to the tenancy rights of his father. There is also no dispute of the fact that the petitioner and other members form Hindu Joint Family along with his father. After the death of his father, the elder brother of the petitioner became the Manager of the family. When the suit was filed against the Manager of the Hindu Joint Family, it is binding on the minor members of the family as well. In this context reference may be made to the decision of Rajasthan High Court in Mahabir Prasad v. Sawai Chand and Ors., A.I.R. 1958 Rajasthan 107, and also to the decision in C.K.S. Krishnamurthi and Ors. v. Chidambram Chettiar and Ors., A.I.R. 1946(33) Madras 243.
8. I am also of the opinion that it is not a case where there is no representation of the minor at all. If a minor defendant is no represented at all in the suit, the decree as against him may be said to be a nullity but that must be distinguished from cases where the Court had appointed a guardian ad-litem on an application filed by the defendant. Though there is some irregularity in appointing the guardian, it does not amount to no representation at all. The minor cannot avoid the decree unless it is shown that the defect in procedure has prejudicated him.
9. The learned counsel for the petitioner contended that the provisions of Rule 3 of the Order 32 of the Code of Civil Procedure as amended in the Punjab have not been followed and therefore, the decree is a nullity. I am not able to agree with this contention of the learned counsel for the petitioner. In this connection, it is useful to refer to the Full Bench decision of this Court in Amrik Singh and Anr. v. Karnail Singh and Ors., A.I.R. 1974 Punjab and Haryana 315, wherein it has been observed as follows:-
"The object of Order 32 is to see that no decrees are passed against minors where they are not effectively represented. I have deliberately used the words 'effectively represented' in contradistinction to the 'representation' contemplated by Order 32 Rule 3. If a minor is represented by a guardian ad-litem and the interests of the other major defendants are identical with him and those defendants are effectively prosecuting the litigation it can hardly be said that a minor is not effectively represented. Too much insistence on technical provisions of a procedural law can at times lead to absurd results and cause injustice to the parties."
10. On the facts of the present revision petition, the interest of the petitioner is identical with that of the other defendants and the suit has been contested on every conceivable ground and the matter was taken upto the Apex Court by the defendants unsuccessfully. The suit was filed in the year 1972. The decree became final only after a period of two decades. When the plaintiff is seeking to execute the said decree, the petitioner filed this application to further delay the execution. The plaintiff is not able to recover possession of the property for more than two and a half decades. One can understand if the petitioner makes a grievance immediately on attaining the majority but he kept quiet for more than a decade after attaining majority. If he wants to have the decree set aside, he has to necessarily file a suit asserting his rights on attaining majority. It has been held by the Apex Court in Smt. Kameshwari Devi @ Kaleshwari Devi and Ors. v. Smt. Barhani and Ors., J.T. 1997(3) S.C. 403, that if the interest of the estate of the minor is not protected, necessarily the minor on his attaining majority or within 3 years thereafter is entitled to file the suit under Section 7 of the Limitation Act, after cessation of the disability to question the correctness of a decree which is sought to be made binding on him, and in such a case, the limited defence that could be open to him is that either the decree in the earlier suit was obtained by fraud/collusion or by negligence or the part of the Court guardian or that the guardian ad-litem did not safeguard the interest of the estate of the minor. It has also been held by the Apex Court that if the defence was common to all the defendants in earlier suit including that of the minor and the estate of the minor was sufficiently represented by appointing the Court guardian, the decree is binding on the minor.
11. In view of my foregoing discussion, I do not find any ground warranting interference with the impugned order of the Executive Court. The revision petition, therefore, fails and is accordingly dismissed.
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