1. The plaintiff in the suit from which this second appeal has arisen is the appellant here. His suit was primarily to have it declared that the decree passed against him in O.S. 26 of 1905 on the file of the Subordinate Judge, Kumbakonam, is not binding on him. The grounds on which such a declaration has been asked for, so far as one is able to gather the same from the plaint, are that he was the minor defendant 12 in that suit and that even though his father Krishnaswamier was appointed guardian ad litem in the suit he colluded with the plaintiffs in the action allowing a decree ex parte to result against him. The reliefs prayed for by the plaintiff on the basis of the declaration above referred to have reference to two sets of properties, one in Schedule A and the other in Schedule B. The primary relief is only in respect of properties described in Sch A. The relief in respect of properties in Schedule B is only prayed for in the alternative. The Court of first instance granted a decree in favour of the plaintiff in respect of the properties in Schedule A. On appeal by the defendants the decree passed by the Court of first instance was reversed and the plaintiff's suit was dismissed by the learned Subordinate Judge.
2. The case has been argued at considerable length on both sides. It may be briefly stated that three points were taken by Mr. Rangachariar, the learned vakil for the appellant. The facts, however, necessary to understand the contentions may be briefly referred to. There was a previous suit, O.S. No. 59 of 1890, on the file of the Subordinate Judge of Kumbakanom which had been instituted by the grandfather of the present respondents for the purpose of certain declarations with regard to the property of one deceased 'Muthappier. Both the widow and the mother of the deceased were alive at that time and the suit that was instituted was merely for declaring that certain alienations which had been made by the qualified owner or owners were not binding on the reversioners. The plaintiff's grandfather was a party defendant in that suit and a compromise was entered into by and between the parties which virtually resulted in the property of the deceased being divided between the parties. They came to an arrangement that the properties should be divided in equal moieties and for the purpose of carrying out the same some properties which also belonged to the plaintiff's grandfather were given to the plaintiffs in that suit in exchange for the purpose of equalising the shares or rendering convenient the enjoyment of the property about which they were making an arrangement. This Compromise, however, was not made a decree of Court, but the parties merely carried out that arrangement by executing documents which have been put in evidence in this case. After this compromise and after the death of the qualified owners, defendants, 1 and 2 and 3 in this suit were found to be the actual reversioners entitled to the reversionary estate and, it was thereupon that they filed the suit, O.S. 26 of 1905, above referred to. That suit was, therefore, merely for the recovery of possession of the various items of property forming part of the estate of Muthappier on the ground that on the death of the widow they, as immediate reversioners, became entitled to the properties. The present plaintiff, as already stated, was defendant 12. He was a minor and his father was appointed guardian. The case of collusion between the plaintiff's father and the plaintiffs in that case which was the main case set up in the plaint has not been proved and such a case has not been put forward or pressed here. The case that was sought to be made by Mr. Rangachariar was that the plaintiff's father as guardian ad litem was guilty of gross negligence in the conduct of that litigation on behalf of the plaintiff when he was minor and that therefore, the decree in that case should be held not to be binding on the plaintiff.
3. To begin with, it must fall to be observed that whatever may be the latitude that may be given or expected in ordinary actions, at any rate in cases where the relief claimed is to have a decree of a Court of competent jurisdiction set aside on certain grounds alleged, it is absolutely necessary that the grounds relied upon should be set out clearly and definitely. In fact I am not at all sure whether it would not have been open to us in this case to reject the whole case of the appellant on the ground that the case originally propounded in the plaint was one of collusion, and that having gone and no case of negligence, much less of gross negligence having been indicated in the plaint, it is not competent to the appellant to seek to make any such case here. But apparently for some reason both the Courts below seem to have proceeded on the view that it was open to the plaintiff to make such a case and Mr. Varadachariar appearing for the respondents has not raised any objection to the case being considered on the merits of the contentions raised for the appellant.
4. Mr. Rangachariar put forward three contentions. These contentions, before passing further, it must be observed, had relation really to the conduct of the plaintiff's father as guardian of the plaintiff in that suit. The argument was that the plaintiff's father was bound when he was appointed as guardian ad litem of the present plaintiff to have put in a defence and defended the action instead of allowing the plaintiff to proceed ex parte. It is therein that the negligence or gross negligence of the plaintiff's guardian is stated to have lain. I will examine later these grounds with reference to the question whether, assuming all the contentions, it can even then be held to constitute such gross negligence as would entitle the plaintiff to have that decree set aside. What Mr. Rangachari contended was that in the first instance the guardian in that suit should have put forward the plea that the compromise between the grandfather of the plaintiff in the previous case and his own grandfather was in the nature of a compromise of doubtful or disputed rights, and, therefore, binding on all the parties to it or those who claimed under them without any reference to the title under which the plaintiffs were claiming in that action. So far as this contention is concerned it seems to me it is sufficient to observe that such a case of the compromise being or being regarded as a compromise of doubtful or disputed rights has not been put forward in the plaint. In order to make out such a case of compromise of doubtful rights or a bona fide family arrangement in settlement of disputes it would have been necessary for the plaintiff to state that his grandfather at the time he was putting forward some claim to these properties put forward some claim in his own right. The whole of the ground now set out in the plaint would appear to show that the plaintiff could not possibly set up such a case of a compromise of doubtful or disputed rights between the parties. There are not sufficient allegations in the plaint on which I can hold that such a case has been put forward. It is, therefore, unnecessary to deal with it further. In fact Mr. Rangachari frankly conceded that such a case could not be regarded as having been properly set up.
5. The other ground on which Mr. Rangachari argued that the plaintiff was entitled to relief was that the properties in Schedule B were properties, at any rate, part of which had been given away by his grandfather to the respondent's grand-father in exchange for certain reversionary properties and such an exchange having been beyond the power of the plaintiff's grandfather, it must now be held that the plaintiff is not bound by any such alienation and that at any rate, so far as his one-sixth interest in those properties is concerned, he would be entitled to a decree. This claim is thus based on title or ownership of the property. With regard to this contention it has been conclusively pointed out by the learned vakil for the respondent that the plaintiff was not born on the date on which this transaction took place and, therefore, the property-having been parted with at a time he had not come into existence, it is not open to him now to question the same.
6. The last contention, which was really the main contention put forward by Mr. Rangachari, was that in any case it must be held that the guardian of the present plaintiff must have in that suit put forward a plea for restitution to him of the plaintiff's share in Schedule B properties as a condition precedent to the plaintiffs in that action being granted the decree. In the view I have taken of this contention it seems to me really unnecessary to deal at any great length with the various aspects of this contention. To begin with it must be observed that all questions of restitution ultimately rest upon the equitable doctrine of the restoration of the status quo ante and it is an undoubted and well-accepted principle that no restitution could be ordered unless it is perfectly clear that all the parties concerned could be restored in full measure to the status quo ante. In the case in question it is obvious that no such complete restoration to the status quo ante was possible. Many of the properties which were the subject-matter of the transaction in the compromise have passed into other hands. We also find that some considerable items of property had been dealt with on that occasion by way of sale by the plaintiff's grandfather to the grandfather of the defendant. It has been admitted by Mr. Rangachari that a restoration to the entire status quo ante is not possible. But what he contended for was that as the part of the B Schedule properties above referred to was part of the consideration for the transaction, the plaintiff was clearly entitled at least to his share thereof being delivered over to him. If such claim had been made on behalf of the present plaintiff as defendants in the previous action, there is no doubt whatever that the Court would have had immense difficulty in adjusting the equities, finding that the whole of the status quo ante could not possibly be restored.
7. That would necessarily require that the Court should go in great detail with regard to the value of various properties and even thereafter any result that may be arrived at could only be regarded as unsatisfactory. After all, if we find that restitution as an equitable relief could only be granted under conditions when complete restoration to the status quo ante alone is possible, and if in this case we are also further satisfied that such a thing is not possible, it follows that the doctrine of restitution is not available for the plaintiff. Further, though this matter has not been dealt with at any very great length, the party who is called upon to make restitution must be in some manner or other a party claiming under the contract or transaction under which the property in respect of which the restitution is sought has passed to the other party. The previous case was instituted merely on the ground of the plaintiffs having been on the death of the qualified owner the reversionary heirs to the estate. That was their title. They did not claim as the heirs of the grandfather, or even as the surviving co-parceners of their father, and grandfather. There was, therefore no claim whatever made by the present respondents as plaintiffs in the previous action on the ground of their being descended from their grandfather or representing him in any way. In such a case as that, is it open to a defendant to ask for restitution? No doubt when a person is a party to a contract, a Court of equity will compel him to return or refund to the other party whatever benefit he has received under a contract or transaction if that party should seek to go behind it, or have it set aside and claim any relief on that basis. If a party can be so compelled, it follows that all those who may be regarded as his legal representatives may also be similarly compelled. But it must be observed that it is only in their legal capacity as legal representatives, whether they are executors, administrators, or heirs, that they can be so compelled, and such compulsion must be limited to the estate or the properties inherited by them from the party whom they represent. The very legal expression " restitution " shows to my mind the principle underlying it to be that the further restitution must be asked only if the party that is sought to be compelled to make restitution seeks to go behind or have set aside in some manner or other any contract or transaction to which he was either directly or indirectly a party. A case in which, however, certain persons claim as reversioners, in their own right to get possession of the property cannot be regarded as being in its nature one to go behind any contract which may be regarded as affecting them or any transaction to which they or any of their predecessors-in-interest as such were parties. It is not, however, necessary to labour this point further because we have not heard full argument on this and I have, therefore, deemed it sufficient merely to indicate the view.
8. Mr. Rangachari has referred to various cases where Courts have held that a party coming to Court for certain reliefs was bound to make restitution as a condition precedent to obtaining from the Court the relief sought. He referred to the case of Girraj Baksh v. Kazi Hamid Ali [1887] 9 All. 340. It would be found that on an examination of the facts of that case the guardian appointed by the Court purported in making the mortgage to act as guardian for the minors under reference, even though such guardian had not obtained the sanction of the Court for alienating immovable property. It was found on the facts that the amount raised on the mortgage had gone specifically to discharge a debt which was binding on the minor as having been contracted by the predecessor-in-interest and that as regards the balance the same had been expended by the guardian for the interest of the minor, such as his maintenance, education, etc. It must be observed regarding that case that the learned Judges first came to the conclusion that the transaction was not absolutely void or illegal and further the law recognizes the right of reimbursement of a guardian as against the minor in respect of moneys which might have been properly expended by him for his benefit or in the interests of his estate. It has been pointed out by Sir John Wallis, C.J., in Shanka Krishnamurthi v. Bank of Burma [1911] 35 Mad. 692, that it is possible that in transactions entered into by a guardian, though the transaction itself might be held not to be-binding on the minor for certain reasons, the creditor of the guardian might in certain circumstances be subrogated to the rights of the guardian himself. If, therefore, the case before the learned Judge in Girraj Baksh v. Kazi Hamid Ali [1887] 9 All. 340, was one in which the guardian was clearly entitled to be reimbursed the amount of the debt and of the proper expenses, there was ho reason why the creditor or mortgagee should not have been granted relief on that basis by making a condition that the plaintiff could recover the property only on paying up the amount to the extent to which his estate had benefited.
9. Mr. Rangachariar also referred to the. case of Mutta Venkatachalapathy v. Venkatachalapathy Garu [1912] 23 M.L.J. 652. With regard to that case it is sufficient to observe that the party who was sought to be compelled there to make restitution was himself a party to the transaction and, therefore, the facts of that case are such that no useful principle can be extracted therefrom for application to the present case.
10. The third aspect from which Mr. Rangachariar argued that his client would have been entitled to an order of restitution against the plaintiffs in the previous action was that there was a legal principle which though not amounting to estoppel prevented plaintiffs in the position of the present respondents from recovering the property without making such restitution. If the facts alleged or proved do not amount to estoppel, it is difficult to sea how, apart from the principles already referred to, there can be an obligation on the part of persons like the plaintiffs in the previous case to make restitution to this present plaintiff of property which we shall assume for the purpose of the present argument, they had obtained in some other manner. Mr. Rangachariar referred to various cases both in this Court and in Bombay and Allahabad to which it is unnecessary particularly to refer, where the learned Judges have held that when a certain reversioner had by his conduct so consented to an alienation by a qualified owner those who are in the position of heirs or representatives of such reversioner are estopped from contending that the alienation is not valid. He said that that principle might be availed of at any rate to the extent of holding that if some consideration had passed for such consent or arrangement, the alienation can be set aside only on condition at any rate of restitution being effected of what has been received as consideration. With reference to these cases it is only necessary to refer to the decision of their Lordships of the Privy Council in the case of Rangaswami Goundan v. Nachiappa Goundan A.I.R. 1918 P.C. 196. Their Lordships have made it perfectly clear that the person who ultimately happens to be the reversioner becomes entitled, thereto really in his own right and not as the heir or representative of his father or other remoter ancestor. There are further difficulties in the way of applying such a doctrine as has been contended for by Mr. Rangachari to cases like this where the property comes to be claimed by one parson under one legal right and the estoppel is said to impinge on him by reason of some other legal capacity.
11. On these considerations it seems to me, therefore, that in the previous suit it would not have been open to the guardian of the plaintiff to put forward the plea with any reasonable chance of restitution in respect of the Schedule B pro parties in the present plaint. After all, one should not forget that the question now before us is not whether such a plea, if made, could or could not be made good, but whether the father, the guardian, was guilty of gross negligence in omitting or failing to put forward such a plea, filing a written statement and contesting the suit. If the true doctrine should be that the minor is entitled to have the decree set aside only on establishing to the satisfaction of the Court gross negligence on the part of the guardian, the question then resolves into whether we can now regard the failure to put forward such a plea of restitution as one of gross negligence.
12. It must again be observed in this connexion that it was not the case of the guardian having by his act or omission abandoned or sacrificed the right of the minor altogether. A claim for restitution is merely a claim there and then in that case to get some relief from the other party as a condition precedent to the plaintiff being granted the relief prayed for. Such a claim, therefore, must be regarded as based on rights to recover the property or fund in respect of which restitution is sought. The mere fact, therefore, that in that case no plea for restitution was put forward could not possibly be regarded as amounting to a sacrifice or abandonment of the rights of the minor. After having heard arguments from learned lawyers at the Bir on both sides we have ourselves felt grave difficulty in this case to come to the conclusion whether or not in such circumstances a person in the position of the plaintiff could be said to be entitled to restitution. If so, in the case of a layman like, the plaintiff's father, could it possibly be said that ha was guilty of gross negligence in not thinking of this plea of restitution and not putting it forward in a written statement to be filed by him? It seems to me that I can with some confidence state that the possibility of making such a claim for restitution might not have struck even many lawyers. If so, it follows that the Court cannot possibly regard as negligence, much less as gross negligence, any failure on the part of the father to put forward such a claim. Therefore, even assuming that in the present case the ground on which the plaintiff has sought to have set aside the decree passed in the previous suit against him, included the ground of gross negligence on the part of the guardian, it seems to be clear that no such case of gross negligence could be regarded as having been proved or established. That was really the ground on which the lower appellate Court has proceeded, because the lower appellate Court took the view, and for all practical purposes I cannot say that it was wrong, that any attempt on the part of the plaintiff's father to have defended the action would have been utterly futile. I, therefore, agree that, no case of collusion or gross negligence having been proved by the plaintiff with regard to the conduct of his father, the guardian in the previous suit, the plaintiff is not entitled to have that decree declared not binding on him or have that decree set aside
13. The second appeal is, therefore, dismissed with costs.
Cornish, J.
14. I agree.