Harihar Prasad Singh Petitioner v. Edul Singh And Others Opposite Party

Dawson-Miller, C.J:— This is an appeal by Harihar Prasad Singh from an order passed by the Subordinate Judge of Patna on the 22nd March, 1919, dismissing an application under Order IX, rule 13 of the CPC, brought by the appellant, a minor, suing through one Bajrang Pershad Singh as next friend, to set aside a decree passed against him and his two brothers in a mortgage suit. The facts out of which this litigation arises are shortly as follows:

In June 1916, Mathura Prasad, a brother of the appellant, mortgaged certain property belonging, to himself and the appellant and another brother named Murli Mmohar Prasad in favour of Edul Singh. In June, 1917, a suit on the basis of the mortgage was brought by the mortgagee Edul Sing in which Mathura Prasad, Murli Manohar Prasad and Harihar Prasad Singh were impleaded as Defendants. At that time the appellant was over the age of 18 but under the age of 31 and one of the questions which arises in the present appeal is whether in the circumstances the Appellant had at that time attained his majorty. He was sued in his own name together with the other defendants in the suit as being of age.

The preliminary decree having been passed in the mortgage suit on the 23rd January, 1918, ex parte as against Harihar Prasad, who did not appear, a final decree as subsequently on the 7th September in the same year and on the 10th December following the mortgaged property was sold. On the 14th January, 1919, the appellant instituted the present proceedings claiming to have the decree passed ex parte as against him set aside, the application being made under Order IX, rule 13 of the CPC. The grounds upon which he applied to have the decree set aside were, first, that he had never been properly served with process, and secondly, that if any process were served against him he was not properly represented in that suit because he was at the time of the institution of the suit still a minor.

2. It appears however, that the institution of the proceedings under Order IX, rule 13 was not made until one year after the preliminary decree was passed, some 4 months after the final decree was passed, and something like a month after the property was sold and by article 164 of the ached ale to the Limitation Act the period in which an application under Order IX, rule 13 can be made is one month after the date of the decree or where summons is not duly served the date when the applicant had knowledge of the decree. In order to bring himself within the period of limitation the Appellant contended in the first place that he had no knowledga of the decree until within a month of the date when he male his application under Order IX, rule 13. Evidence was given upon this question before the learned Judge and he came to the conclusion that the appellant's evidence upon that part of the case could not be accepted.

3. The facts were that service of process both with regard to the original suit and with regard to the passing of the final decree was proved by the report of the peon who served the process in each case and although the appellant contended that he had no knowledge either of the institution of the suit or of the passing of the decree until within something less than a month of the date when he instituted the present proceedings, the learned Judge even on his own evidence apart from the evidence given by the other side came to the conclusion that it was impossible to accept the facts alleged by the appellant and in my opinion he was amply justified in refusing to accept the appellant's evidence on that question. It was not disputed that the two brothers of the appellant who had attained their majority had been properly served and knew all about the suit from the very first. It was further not disputed that the three brothers were living joint in mass and property, residing in the same house and in these circumstances it was practically impossible for the learned Judge to come to any other conclusion bub that the appellant must all along have known of the institution of the suit as well as the passing of the decree against him, and, that being the case, I think the learned Judge was amply justified in arriving at the conclusion of fact are which he did arrive on that part of the case. It must therefore be assumed that in instituting the present proceedings in January, 1919, the appellant was clearly out of time and on that ground alone the learned Judge was, in my opinion, justified in dismissing an application under Order IX, rule 13. The learned Judge, however, came to the conclusion that at the date when the suit was instituted the appellant had in fact attained his majority and he considered that this was the main question for determination in the case. He gives no considered reasons for arriving at the conclusion that the appellant had attained his majority but the facts which have be considered to arriving at a conclusion upon this question are shortly these. In the year 1890 Lachmi Prasad, the father of the appellant, and his two brothers died, and shortly afterwards an application was made for the appointment of the mother of the appellant Mussamat Janki Kuer, as guardian of his person and property and on the 15th September, 1899 she was appointed guardian by the Court of the District Judge at Patna. At that time according to the order sheet appointing the appellant's mother as his guardian Harihar Prasad, the Appellant, was one year old so that at the date when the mortgage suit was instituted against him and his brothers, viz., in the year 1918, he would be at all events something over 18 years of age and if it is to be held that he attained his majority on arriving at the age of 18 then he was clearly of age at the date when the preliminary decree in the mortgage suit was passed and the same observation applies to the date when the mortgage suit was instituted.

4. If, however, under section 3 of the Indian Majority Act (Act IX of 1875) he did not attain his majority until attaining the age of 21 then it is equally clear that he was a minor at the date when the suit was instituted and at the date when the decree was passed. Before discussing section 3 of the Indian Majority Act, it is necessary that I should state the facts which took place subsequently to the year 1899 when the appellant's mother was appointed his guardian. In the year 1913 the guardian put in a petition before the District Judge at Patna in which she pointed out that Mathura Prasad, the elder brother of the appellant, had attained his majority in June 1909 and that although the two younger brothers were still minors Mathura Prasad was looking after the management of the joint family property in which the minors had no separate interest but were jointly interested with Mathura Prasad, and that in these circumstances there was no necessity for the mother to be continued as guardian and that she had rendered accounts to Mathura Prasad, and she prayed that her certificate of guardianship might be cancelled.

5. A similar petition to the same effect was also filed by Mathura Prasad on that occasion and the order made was that the guardian should be released and that Mathura Prasad should be declared a major and further he was appointed guardian of the two minors. So far as the last part of that order is concerned appointing Mathura Prasad, who was the karta of the family, guardian of his two minor brothers it was clearly of no force or effect and it is not contended that Mathura Prasad was by that order the property constituted guardian of the appellant. The only question which arises is whether, as the properly constituted guardian of the appellant appointed during his minority and before attaining the age of 21 years had been discharged from that office, section 3 of the Indian Majority Act applied after the guardianship of the mother came to an end. The words of that section are to my mind very clear and admit of no doubt that once a guardian of a minor has been properly constituted by the Court the minor shall not be deemed to have attained the age of majority until he has completed the age of 21 years and it does not matter whether the guardian is discharged before he attains that age. The section provides that

“Subject as aforesaid every minor of whose person or property or both a guardian, other than a guardian for a suit within the meaning of Chap. XXXI of the Code of Civil Procedure, has been or shall be appointed or declared by any Court of Justice before the minor has attained the age of eighteen years, and every minor of whose property the superintendence has been or shall be assumed by any Court of Wards before the minor has attained that age shall, notwithstanding anything contained in the Indian Succession Act (No. I of 1888) or in any other enactment, be deemed to have attained his majority when he shall have completed his age of 21 years and not before.”

6. There is no provision in that section which causes the operation of the section to cease in the event of the guardian being discharged and all that is necessary to bring the section into operation is that a guardian should be appointed as guardian of a minor before he attains the aga of 18, and, that having been once dona, he shall not be deemed to have attained his majority until he arrived at the age of 21. The matter, however, does not rest there and has been considered both in the High Court at Bombay and is the High Court at Calcutta and in the case of Jaraomal Marwari v. Mahadeo Prasad Sahu(1) it was laid down that where a guardian has once been validly appointed or declared, the minority does not cease till the attainment of 21 years by the ward and it is immaterial whether the guardian dies or is removed or otherwise ceases to act. It is not necessary to quota further authorities on this question. The wording of the section seams to be capable of bearing only one meaning and it is sufficient to say that I entirely agree with the decision come to by the Calcutta High Court in the case last mentioned. The learned Judge, however, came to the conclusion that the contention put forward by the applicant before him (the present appellant before us) that once a guardian had been appointed of a minors person or property the durability of infancy lasts till the age of 21 was not sound and need not be considered. In this respect the learned Judge was, in my opinion, clearly wrong. He ought to have come to exactly the contrary conclusion if my interpretation of section 3 of the Indian Majority Act is right as interpreted by the High Court at Calcutta in the last-mentioned case and in other cases and so far as that part of his decision is concerned I think it cannot stand. This, however, does not dispose of the case because as already stated the application was clearly barred by limitation when the appellant made the present application before the Subordinate Judge in 1919. He did not make his application either within a month from the date the decree was passed or as found by the Judge with which I entirely agree within a month from his knowledge of the passing of the decree and therefore, so far as the application under Order IX, rule 13 is concerned, the Judge was right in dismissing that application.

7. It has been contended, however, before us that in the present case as it is clearly shown that the appellant was a minor at the time of the institution of he mortgage suit and was not properly represented, in that no guardian was appointed to represent him in that suit, we sought in the exercise of our inherent powers to grant him relief as against the present decree which he is seeking to have set aside. It seems to me that the Court would not be justified in proceedings of this sort to consider the question of how far the appellant would be entitled to relief as against the decree which has been passed against him if in fact he does not bring himself within the operation of Order IX, rule 13. There were several remedies open to the appellant whereby be could get rid of the operation of the decree. He chose deliberately to apply under Order IX, rule 13 to have the decree set aside on the ground that he had not been properly served. That was really the only ground upon which the application was made. That of course included the question of whether service upon him personally was a proper service but as already stated the remedy under Order IX, rule 13 was no longer open to him because he had omitted to take proceedings within proper time.

8. But although I do not think that we ought to exercise any actual or supposed inherent jurisdiction so as to set aside the decree on the ground that the appellant was not properly represented in the mortgage suit, I do not wish to say anything which may bar the appellant's remedy in other respects to have the decree set aside if in fact in a proper proceeding he can establish the facts which I have assumed have been established in the present proceedings.

9. If he can in fact make out that he was a minor at the time when the suit was brought and the decree passed and that he was not properly represented, then it may be that decree as against him is a nullity and that if execution be sought against the property in which he is interested be may be able to resist it even in the executing Court if he can prove that the decree in fact as against him is a nullity. He also has a remedy by suit whereby he can proceed for a declaration that the decree is not binding upon him. He may also have other remedies which it is not necessary to consider but so far as the present application, viz., the application under Order IX, rule 13, is concerned, I am clearly of opinion that be does not bring himself within that rule because he has not taken advantage of the remedy under that rule within the time prescribed by the Limitation Act. In my opinion this appeal should be dismissed with costs.

10. Das, J.:— I agree. I desire to add that the learned Judge clearly erred in relying upon the order appointing the guardian as-proof of age. It is quite clear that when an issue is raised as to minority an order appointing a guardian is no evidence of minority. If authority is needed for the proposition it will be found in the case of Satis Chander Mukhopadhya v. Mohendra Lal Pathak(2). I desire to make it clear that if and when the question of minority is again raised, the finding of the learned Subordinate Judge on this point ought not to prejudice the respondents.