Govind Prasad v. Shanti Swarup

1. The suit giving rise to the present appeal was brought by Shanti Swarup, respondent, for a declaration that the preliminary and the final decrees for foreclosure passed in suit No. 92 of 1930, of the Court of the Subordinate Judge of Cawnpore in favour of the contesting defendants are a nullity and not binding on him. The said decrees were for the foreclosure of a mortgage-deed dated 22nd June 1928, executed by Chhadammi La,l the grandfather and Jagannath Prasad the father of Shanti Swarup plaintiff-respondent. The mortgage was for a sum of Rs. 7,000 and was in favour of the contesting defendants.

2. Chhadammi Lal, Jagannath and Shanti Swarup were impleaded as defendants in the foreclosure suit. Shanti Swarup was a minor, and his father Jagannath Prasad was appointed as his guardian for the suit. The plaintiff-respondent assailed the validity of the decrees mentioned above on the ground that Jagamnath being himself one of the executants of the mortgage-deed was not in a position to raise appropriate pleas on his behalf in bar of the claim for foreclosure of the mortgage and, as such was not a proper person to be appointed as his guardian ad litem. The plaint gave no indication of the pleas that according to it the plaintiff could be successfully raised on his behalf in the foreclosure suit. At the trial however it was suggested on behalf of the plaintiff-respondent that Jagannath omitted to plead that the mortgage was not for legal necessity, and that the rate of interest stipulated in the mortgage-deed was excessive, and lastly, that the Court should in any case instead of passing a decree for foreclosure pass a decree for sale in favour of the mortgagees, and the omission of Jagannath to raise these pleas was due to the fact that he himself was one of the mortgagors and resulted in serious prejudice to the plaintiff.

3. The defendant's contested the suit. They denied the allegation of the plaintiff that Jagannath was not a proper person to be appointed as the guardian ad litem of the plaintiff in the foreclosure suit, or that he omitted to take such pleas as could validily be raised in bar of the claim for foreclosure. They alleged that the pro-, party mortgaged by the deed of 1928 was the self-acquired property of Chhadammi Lal and the plaintiff had no interest in the same, and accordingly contended that even if Jagannath was not a proper person to be appointed as the plaintiff's guardian, the plaintiff was in no way prejudiced, as he had no interest in the mortgaged, property. The defendants therefore challenged the right of the plaintiff to the relief claimed by him.

4. There was abundant evidence in the case to justify the assertion of the defendants that the mortgaged property was the self-acquired property of Chhadammi Lal, and, both the Courts below have recorded a finding to that effect. But the case put forward by the plaintiff in the Courts below was that Chhadammi Lal had thrown the property into the common stock and, as such, the property became the property of the joint family cosisting of Chhadammi Lal, Jagannath and the plaintiff. The trial Court overruled the contention of the plaintiff that the property was thrown into the common stock and held that the omission of Jagannath to take the pleas mentioned above could in no case be prejudicial to the interests of the plaintiff for the simple reason that the plaintiff had no interest in the mortgaged property. The trial Court also considered the question whether or not the debt secured by the mortgage was raised for legal necessity, and answered the question in the affirmative. It therefore held that Jagannath could not successfully raise the plea of want of legal necessity on behalf of the plaintiff-respondent in the foreclosure suit. It further observed that Jagannath had actually pleaded in the foreclosure suit that the rate of interest was texcessive, and, the Court had given effect to that plea by reducing the rate of interest. In view of these findings the trial Court dismissed the plaintiff's suit.

5. On appeal by the plaintiff the lower appellate Court reversed the decree of the trial Court and decreed the suit. It held that Chhadammi Lal had thrown the property into the common stock, and the plaintiff had an interest in the same. It did not record any finding on the question whether or not the debt secured by the mortgage was for family necessity, as it was of the opinion, that Jagannath being one of the executants of the mortgage-deed was not in a position to resist the foreclosure suit on behalf of the plaintiff either on the ground that the debt was not for legal necessity or was tainted with immorality, or to raise the plea that the Court should in any case, in lieu of a decree for foreclosure, pass a decree for sale of the mortgaged property. It accordingly held that Jagannath was not a proper person to be appointed as the guardian ad litem of the plaintiff, and that this fact by itself rendered the foreclosure decree nugatory so far as the plaintiff was concerned.

6. The contesting defendants have come up in second appeal and they assail the decree of the lower appellate Court on two grounds. Firstly, it is contended that the finding of the lower appellate Court that Chhadammi Lal had thrown the mortgaged property into the common stockis erroneous. It is accordingly urged that the plaintiff had no interest in the property with respect to which the foreclosure decree was passed, and, is therefore not entitled to challenge the validity of that decree. Secondly, it is contended that in the absence of a finding to the effect that the plaintiff was not effectively and adequately represented in the foreclosure suit and that he was prejudiced because of the non-appointment of a proper person as his guardian ad litem, the suit should not have been decreed.

7. As we consider that the second contention advanced on behalf of the defendants is well-founded, we are relieved from the necessity of expressing an opinion as regards the first contention advanced on behalf of the defendant-appellants. We may however observe that we are by no means satisfied that the finding of the lower appellate Court as regards the property [being thrown into the common stock by Chhadammi Lal is based, on legal evidence. The burden of proving that a member of a joint Hindu family threw his self-acquired property into the common stock lies on the person making the assertion, and this burden can only be discharged by proof of the fact that the owner of the property (clearly expressed an intention to abandon his separate and exclusive rights in the property in favour of the members of the joint family. The intention may be expressed by words, or may be inferred by the manner in which the profits of the property were dealt with. The finding of the lower appellate Court on the point is based on the fact that Chhadammi Lal associated Jagannath and the present plaintiff with himself while executing two mortgage-deeds with respect to the property. The first mortgage was executed in the year 1925 by Chhadammi Lal and Jagannath Prasad for himself, and on behalf of the plaintiff who was a minor. The second mortgage deed was the mortgage-deed on the basis of which the foreclosure decree was passed and, this mortgage was executed both by Chhadammi Lal and Jagannath. The lower appellate Court observed that as Chhadammi Lal joined Jagannath and the plaintiff in the execution of the mortgage-deeds, it must be presumed that he threw his self-acquired property into the common stock. It may very well be that Chhadammi Lal associated Jagannath and the plaintiff with himself while mortgaging the property simply on the insistence and for the satisfaction of the mortgagee. Be that as it may, we are far from holding that the fact that the son and grandson of Chhadammi Lal joined in the execution of the mortgage-deeds was by itself sufficient to justify the inference that Chhadammi Lal abandoned his exclusive rights to the property in favour of the joint family consisting of himself, his son and grandson.

8. We are however clearly of the opinion, that the plaintiff was adequately and effectively represented in the foreclosure suit and that all the pleas that could validity be taken on his behalf were raised by Jagannath, and, accordingly the decrees for foreclosure are binding on him. The provisions of Order 32, Rule 3, Civil P.C., that where the defendant is a minor, the Court, on being satisfied of the fact of his minority shall appoint a proper person to be guardian for the suit for such minor, are mandatory, and it is well settled that a decree passed against a minor without the appointment of a guardian ad litem is a nullity : vide, Champi v. Tara Chand 1924 All. 892. But it is equally well-settled that if a guardian has been appointed for a minor defendant, mere irregularities in the appointment of the guardian or the mere fact that a proper person was not appointed the guardian does not render the decree nugatory against the minor unless and until it is proved that the minor was not effectively represented in the suit and was prejudiced by the omission of the guardian to take the pleas that could validly be raised on his behalf : vide, Walian v. Banke Behari Pershad Singh (1908) 30 Cal. 1021, Bijnath Rai v. Dharam Das Tiwari 1916 All. 22, Murlidhar v. Pitambar Lal 1922 All. 91 and Raja Babu v. Balmukand 1925 All. 214. The reason for this rule of law is not far to seek. The law insists that the minor should be represented by a proper pier-son whose interests are not, adverse to the interests of the minor, so that the minor's interest may not in. any way be neglected or prejudiced. But if it is apparent that the minor's interests in the suit in which he was a defendant were not in any way prejudiced, it becomes wholly unnecessary to inquire into the question as to whether or not the guardian appointed was a "proper person" within the meaning of Order 32, Rule 4 Civil P.C., for the simple reason that the purposes for which a guardian is appointed are achieved.

9. It follows therefore that in cases; where a guardian ad litem for a minor defendant has been appointed and a decree is passed against the minor, the minor is not entitled to avoid the decree without proof of the fact that he was not effectively representied in the suit, and that he was prejudiced by the omission of the guardian to raise proper pleas on his behalf. In the case before us, we find that all the picas that could be raised with any hope of success on behalf of the present plaintiff in the foreclosure suit were raised by Jagannath. No exception can be taken to the finding of the trial Court that the debt secured by the mortgage was for legal necessity. Out of the sum of Rs. 7,000 secured by the mortgage-deed, a sum of Rs. 6,530 was for the payment of antecedent debts. To that extent the mortgage was clearly for legal necessity. The balance of the sum, Rs. 470, was paid by the mortgagee at the time of the execution of the mortgage-deed. One of the contesting defendants stated on oath that the sum of Rs. 470 was paid for the expenses of the execution and registration of the mortgage-deed, and this statement was not challenged in the course of cross-examination, and was therefore rightly accepted by the trial Court. It follows that the entire debt secured by the mortgage-deed was for legal necessity and it would have been idle for Jagannath to plead that the mortgage was not for legal necessity.

10. There was no suggestion on behalf of the plaintiff in the trial Court that the mortgage-deed was tainted with immorality. The lower Appellate Court was therefore wrong in proceeding on the assumption that if some person other than Jagannath had been appointed guardian ad litem of the plains tiff, he could have pleaded that the debt was raised for an immoral purpose. Jagannath did plead that the rate of interest was excessive, and this plea was given effect to in the foreclosure suit. We further find that the plea that the Court should, instead of a decree for foreclosure, pass a decree for the sale of the mortgaged property, was embodied in the written statement in the foreclosure suit. There is however nothing in the judgment of that case to show that this plea was pressed at the time of hearing. The plea was, without substance, as a Court is bound to pass a decree for foreclosure when the suit is based on the basis of a mortgage by conditional sale. It is only when the suit is on the basis of an anomalous mortgage that discretion is given to the Court to pass a decree for sale in lieu of decree for foreclosure.

11. It was not suggested in the Courts below, arid it is not suggested in this Court, that any other pleas could be successfully raised on behalf of the present plaintiff in the foreclosure suit, nor is it suggested that Jagannath was not in a position to raise such pleas because of the fact that he was one of the executants of he mortgage-deed. There is no escape from the conclusion that the plaintiff failed to prove that he was not effectively represented in the foreclosure suit, or that he was prejudiced in any way by the omission of Jagannath to raise appropriate pleas on his behalf. It follows that the plaintiff was not entitled to the decree granted to him by the lower appellate Court. We accordingly allow this appeal, set aside the decree of the lower appellate Court and restore the decree of the trial Court with costs in all Courts.