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Rambrichh Ram v. Tarak Tewari
Factual and Procedural Background
This suit arises out of an earlier suit for redemption. The plaintiff in the present suit was one of the defendants in that prior redemption suit and was a minor at the time. In the redemption suit the plaintiffs described all defendants as members of a joint undivided Hindu family and asked that one named individual, Kanhai, be appointed guardian ad litem for all minor members. Kanhai accepted guardianship for some defendants but refused to act as guardian ad litem for the present plaintiff. The Court then appointed the central nazir as guardian ad litem for the present plaintiff without issuing notice to the minor, to Kanhai, or to any other person — an appointment the Court characterises as irregular.
The central nazir did not in fact defend the prior suit; Kanhai defended it, contested the suit throughout, and ultimately lost on appeal. A decree for redemption in favour of the plaintiffs (mortgagors) resulted from that litigation.
The present suit was brought by the former minor plaintiff (now plaintiff in the present suit) against: (a) the mortgagors who had obtained the redemption decree in the old suit, (b) Kanhai and other mortgagee defendants (described in the record as “defendants second party” and “defendants third party”), and (c) the central nazir (the guardian ad litem appointed in the prior suit). The plaint was originally framed to seek a declaration only; an objection (that the plaintiff was bound to sue for possession) led to amendment so that the plaint as amended seeks to recover mortgagee possession of the property that had been the subject-matter of the former redemption suit.
At first instance the learned Subordinate Judge framed five issues and decided four, leaving undecided the specific issue whether the former decision operated as res judicata. The Subordinate Judge found as a critical fact that the plaintiff and the defendants (2nd and 3rd party) were members of a joint undivided Hindu family at the time of the former suit and that Kanhai was the karta (manager) of that family. The Subordinate Judge dismissed the plaintiff's suit. On appeal the District Judge remanded the suit for decision on the merits under Order 41, Rule 23, CPC; the Court of Appeal's remand was later challenged in this appeal.
Legal Issues Presented
- Whether the decree for redemption obtained in the former suit operates to bar the present plaintiff from recovering mortgagee possession (i.e., whether the mortgage had been effectively redeemed and whether that redemption binds the present plaintiff).
- Whether the irregular appointment of the central nazir as guardian ad litem in the prior redemption suit (including lack of notice and the nazir's failure to defend) prejudiced the interests of the minor plaintiff so as to render the prior decree void vis-à-vis the minor.
- Whether the remand order passed by the learned District Judge under Order 41, Rule 23, CPC was appropriate, given the findings of fact recorded by the Subordinate Judge.
Arguments of the Parties
Plaintiff's Arguments
- The present plaintiff amended the plaint to seek mortgagee possession of the property subject to the prior redemption suit (having been challenged that he should have sued for possession originally).
- Implicit in the procedural history is an argument that because he had been the defendant in the prior suit and because of the irregular appointment of the guardian ad litem, the prior redemption decree should not be allowed to defeat his present claim for possession (i.e., that the irregularity prejudiced his rights).
Defendants' / Mortgagors' Arguments
- The essential defence: the plaintiff cannot recover mortgagee possession because the mortgage had been redeemed in the prior suit.
- Further, the mortgagors pleaded that the present plaintiff cannot deny that redemption occurred because redemption was effected in litigation in which the present plaintiff had been a defendant (raising res judicata / estoppel from the prior litigation).
- Kanhai, as karta of the joint family, contested the prior suit thoroughly and took the matter to appeal; the mortgagors rely on that contest and outcome to show an effective and binding redemption.
Respondent / Appellate Arguments Addressed to This Court
- It was contended on behalf of the respondent (the record indicates an argument to this Court) that the appropriate order for the District Judge to have passed would have been a decree in favour of the plaintiff's claim and that the appellate Court's remand should be substituted by this Court with such a decree.
- Opposing counsel (Dr. Sen is named in the opinion) attempted to challenge the factual findings (for example, contesting whether the findings that there was no prejudice or that the plaintiff was joint with the family were supported by evidence), but the Courts below and this Court found those factual findings sustained by evidence.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| "The view expressed by the learned Chief Justice in the case which has been referred to" (unnamed case, cited by the District Judge) | Reportedly used to suggest that the plaintiff must be deemed to have been prejudiced by an irregular appointment of guardian. | The Court observes that the Chief Justice did not say that and that the Privy Council has held the question to be one of evidence; the District Judge's reliance on that supposed dictum was therefore misplaced. |
| Privy Council (unnamed decision, referred to in the opinion) | Principle: whether a minor was prejudiced by an irregular appointment is a matter for evidence (i.e., not to be presumed). | The Court invokes this principle to support the view that an irregular appointment does not automatically vitiate proceedings where there was no fraud and no prejudice to the minor; the District Judge's contrary approach was criticized. |
| Allahabad Law Journal, Vol. 12 — a decision by Tudball and Piggott (unnamed at reporter level) | On the facts of that case, an irregular appointment of guardian resulted in prejudice to minors and affected their defence. | The Court notes the District Judge misapplied that decision: that case established prejudice on its facts, not a general rule that irregular appointment always produces prejudice. |
| "Two decisions of this Court" (unnamed) | General authorities relied upon by the District Judge in support of the view that an irregular appointment leads to a presumption of prejudice. | The Court criticises the District Judge's treatment of those decisions, stressing that the question of prejudice must be resolved by evidence and that the District Judge conflated distinct issues. |
Court's Reasoning and Analysis
The Court's analysis proceeds from factual findings recorded by the Subordinate Judge and endorsed in part by the lower Appellate Court. The key factual findings were:
- The plaintiff and the defendants 2nd and 3rd party were members of a joint undivided Hindu family both at the time of the former redemption suit and subsequently.
- Kanhai was the karta (manager) of that joint family.
- There was a grave irregularity in the prior redemption suit in that the central nazir was appointed guardian ad litem without notice, and that nazir did not, as a fact, defend the suit; however, Kanhai defended the suit vigorously up to the ultimate court of appeal.
From those facts the Court reasoned as follows:
- Because the karta (Kanhai) of a joint Hindu family actively and effectively defended the prior suit (and pursued the matter to the highest appellate stage), the interests of minor members of that joint family were, in practice, effectively represented despite the procedural irregularity in appointing the nazir. The Court emphasises representation by the karta as a relevant fact in assessing prejudice.
- An irregular appointment of a guardian ad litem does not automatically render a prior decree inoperative as against the minor. Instead, whether the irregularity prejudiced the minor's interests is a question of evidence; absence of fraud and absence of prejudice are determinative in denying the minor's right to set aside the prior proceedings.
- Given the Subordinate Judge's factual determination that the plaintiff was joint with the family (and Kanhai was the karta who contested the suit), the court concluded that the prior redemption was effective and binding on all family members, including the present plaintiff.
- The District Judge's remand order under Order 41, Rule 23, CPC was inappropriate because the Subordinate Judge had already decided the essential factual points (in particular, joint family status and Kanhai's role) that made further remand unnecessary. The appellate Court did not in clear terms reverse that factual finding or decide any point which would justify remand; accordingly, the remand order was set aside.
- The Court also criticizes the District Judge for misapplying precedents and for conflating two distinct issues — (a) whether there was fraud or collusion and (b) whether the minor's interests were prejudiced — both of which must be established by evidence. The District Judge treated them as a single issue and relied on dicta and authorities in an unduly broad way.
Both Piggott, J. and Walsh, J. concur in the analysis that (i) the Subordinate Judge's dismissal was correct in law and fact, (ii) the record shows no fraud or collusion, and (iii) there was no prejudice to the minor resulting from the procedural irregularity.
Holding and Implications
HOLDING: The appeal is allowed; the order of remand passed by the lower Appellate Court is set aside and the decree of the first Court dismissing the plaintiff's suit is restored with costs throughout, including in this Court fees on the higher scale.
Implications:
- Direct effect on the parties: The plaintiff's suit to recover mortgagee possession is dismissed; the redemption decree obtained in the prior suit is treated as effective and binding on the plaintiff (a member of the joint family) because the karta of the family (Kanhai) effectively defended the prior suit.
- Procedural guidance: An irregular appointment of a guardian ad litem does not automatically vitiate prior proceedings. Where there is no fraud and the minor's interests are shown not to have been prejudiced (established by evidence), the minor cannot set aside those proceedings on the ground of irregularity alone.
- On precedent: The Court's decision rests on the facts and established equitable and evidentiary principles rather than announcing any new general rule; it emphasises that questions of prejudice must be determined by evidence and criticises overbroad application of prior dicta.
Order: Appeal allowed. Decree of dismissal of the plaintiff's suit in the first Court restored. Costs awarded throughout (including higher-scale fees in this Court).
Piggott, J.:— This is a suit which arises out of a previous suit for redemption. The plaintiff-respondent was one of the defendants in the said suit for redemption. He was at the time a minor. The plaintiffs in that suit described all the defendants as members of a joint undivided Hindu family and asked that one of them by name Kanhai, might be appointed guardian ad litem for all the minor members of the family impleaded as defendants. Kanhai accepted this position with regard to some of the defendants, but he refused to act as guardian ad litem for the resent plaintiff. The Court thereupon appointed the central nazir guardian ad litem for this minor. In doing so it contravened the previsions of the law by not issuing a notice to the minor or to the aforesaid Kanhai, or to any other person of its intention to appoint the central nazir as guardian. That official did not as a matter of fact defend the suit. It was, however, defended by Kanhai, who contested the suit throughout and only lost it on appeal to this Court. The result however, was a decree for redemption in favour of the plaintiffs mortgagors. The present suit has been brought against the mortgagors, the successful plaintiffs, in the former suit, against Kanhai and other mortgagee defendants, who for some reason, not to me very apparent, are divided into two categories described as defendants second party and defendants third party, and finally against the central nazir, the former guardian ad litem of the present plaintiff in the redemption suit. As originally drafted the relief sought was a mere declaration, and one of the pleas taken in reply was that the plaintiff was bound to sue for possession. This plea so far prevailed that the plaint was amended to meet the objection. On the plaint as amended, therefore, the plaintiff is seeking to recover mortgagee possession of the property which was the subject-matter of the former redemption suit. I am not sure that either of the Courts below has fully appreciated on its legal aspect the nature of the defence set up by the mortgagors.
2. Their essential defence was that the plaintiff could not recover mortgagee possession because the mortgage had been redeemed. Incidentally, and in further support of this essential plea they also pleaded that the plaintiff in the present case could not deny the fact that the mortgage had been redeemed, because redemption had been effected by means of a suit in which the present plaintiff was himself a defendant. On the pleadings as they stood before him the learned Subordinate Judge framed five issues. He has decided four of them, and the one issue which he has left undecided is issue 4, which was framed in the following terms: “Does the former decision operate as res judicata.” In the result he dismissed the plaintiff's suit. He did so after deciding one issue of fact which in my view was of the greatest possible consequence. He found upon the evidence that the plaintiff and defendants 2 and 3 party were in fact members of a joint undivided Hindu family, both at the time of the former suit and since, and he further found that Kanhai already mentioned was the karta or manager of this joint family. If the learned Subordinate Judge had said that this was an issue of fact which he declined to try, because in his opinion it was unnecessary to look at anything except the result of the redemption suit and the fact that the plaintiff was formally represented therein by a guardian appointed by the Court, I might have felt grave doubt as to the correctness of his decision. He was however, fully aware of the fact that there had been a grave irregularity in the proceedings of the Court which tried the redemption suit. He went on to consider however whether that irregularity had in any way prejudiced the interest of the present plaintiff.
3. In order to determine this question, it was undoubtedly of the greatest importance to try the issue as to the jointless or separation of the family. If the present plaintiff had been as he alleged living separately from the joint family of which Kanhai was the head, he might have had a defence to the suit not open to Kanhai, and there would have been room for doubt whether the mortgage had been effectively redeemed by payment made to Kanhai as the result of the former litigation. Having tried out this question of fact, and determined it against the plaintiff, the learned Subordinate Judge naturally held that the plaintiff had been in no way prejudiced by the result of the previous litigation. He advisedly left undecided issue 4 to which I have already referred thereby it seems in effect holding that it was immaterial to determine whether the former decision could or could not be said to have the effect of res judicata in respect of the present litigation, because in any case the present suit must fail once the Court has found that there has been a redemption of the mortgage, in consequence of a litigation effectively fought out by the mortgagors on the one side and by the head and manager of the joint Hindu family, to which the present plaintiff belongs, on the other. The suit having been dismissed by the first Court the plaintiff went on Appeal to the Court of the District Judge. As to what the learned District Judge intended to decide I must confess myself a little doubtful. He says in one place that the first Court's finding, to the effect that the present plaintiff was not prejudiced by the irregularity committed in the former suit was “premature” whatever that may mean. In another place he says that the plaintiff must be deemed to have been prejudiced. He finishes up however by passing what purports to be an order under the provisions of O. 41, R. 23 of the CPC, remanding the suit for “decision on the merits.” Now the first Court has not decided the suit on a preliminary point nor has the learned District Judge in clear terms reversed the decision of the first Court on any point whatsoever. On this ground alone therefore this order of remand is liable to be set aside. In the course of an able and ingenious argument addressed to us on behalf of the respondent it has been contended that the proper order for the learned District Judge to have passed would have been an order decreeing the plaintiff's claim, and that such an order should now be substituted by us for the order of remand. I am content to put on one side the question whether we could legally do what the respondent has asked us to do. In the face of the finding recorded by the Subordinate Judge which has apparently Seen endorsed by the lower appellate Court, as to the jointless of the plaintiff with the defendants 2nd and 3rd party, it is obvious that the plaintiff's suit cannot be decreed. I think there was somewhere at the back of the learned Judge's mind a feeling that there were some other questions of fact which he would like to see determined before coming to a final decision on the suit. If the learned District Judge had been content to observe strictly the provisions of the law, he would have stopped to ask himself what questions, if any there were as to which he required further findings and to put them in the form of issues. In the attempt to do so he would probably have cleared his own mind as to the rights and wrongs of the case, and might have saved himself from arriving at an erroneous conclusion. I am unable to see that there were any other questions of fact requiring determination, once the first Court arrived at the finding already referred to. There has been an effective redemption of this mortgage by means of the suit in which the karta of a joint Hindu family was a defendant, and which was stoutly resisted by the aforesaid karta and fought by him up to the ultimate Court of appeal. In a suit of this nature, thus contested, the interests of the minor members of the joint family are effectively and properly represented by the karta of the family, whatever irregularity there may have been in the proceedings of the Court. Moreover a redemption thus effected is binding upon all the members of the family. I hold therefore that the learned Subordinate Judge was right in dismissing the plaintiff's suit. This appeal must prevail, the order of remand passed by the learned District Judge beset aside and the decree of the first Court dismissing the plaintiff's suit be restored, with costs throughout, including in this Court fees on the higher scale.
Walsh, J.:— I entirely agree. Where there has been an irregularity in the appointment of a guardian, the moment it is shown that there has been no fraud and that the minor's interests have not been prejudiced by the irregularity, to my mind the minor's right to set aside the proceedings must be denied. In this case there are two clear findings of fact: (1) that there was no collusion or fraud and (2) that the minor's interests were not prejudiced. Dr. Sen was unable to show that these findings of fact were not founded upon legal evidence or not justified. In my opinion they are fatal to his suit and the suit was rightly dismissed by the first Court. I should not have thought it necessary to add anything, had it not been for the fact that the learned District Judge clearly misapplied—in a way which I am afraid is too common—two decisions of this Court. In his painstaking judgment in which he has given in chronological order the facts as established in the Court below, he arrived at a point where it was necessary to come to a legal decision. He unfortunately went entirely wrong. It may often be the fault of the Advocate, sometimes it is the fault of a Judge, who quotes an extract from a case which the Judge has fib opportunity to examine closely. In this particular instance the District Judge has said that he followed the view expressed by the learned Chief Justice in the case which has been referred to, that the plaintiff must be deemed to have been prejudiced. The Chief Justice said nothing of the kind. The Privy Council has held that it is a matter of evidence. He has further said quoting from the Chief Justice, that the appointment of the nazir as guardian without providing funds to enable him to defead the suit is generally a little more than a farce. He went on to apply that dictum omitting the qualifying word “generally” and held that it was invariably a farce, and therefore invalid. In the second place he misapplied an authority which was quoted to him from the reporter's diary in Allahabad Law Journal, Vol. 12, a decision by my brothers Tudball and Piggott. He held that case decided that if the appointment was irregular the minor must be deemed to have been prejudiced in the suit. So far from that being the case, the decision to which he referred held on the facts of the particular case, the appointment was irregular and the minors were prejudiced in their defence. To my mind there are two distinct issues. Bath have to be established by evidence. They are not one issue and in treating them as one issue the District Judge, I think, was misled by the two cases to which he was referring. In this particular instance the plaintiff has failed to establish the second issue and consequently the suit fails.
4. By the Court.— The appeal is allowed, the order of remand passed by the lower Appellate Court is set aside and the decree of the first Court dismissing the plaintiff's suit is restored with costs throughout, including in this Court been on the higher scale.
V.B/R.K
5. Appeal allowed.
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