Sham Lal v. Ghasita

Banerji and Aikman, JJ.:— The plaintiffs in this case claim a declaration that their two-thirds share in certain zamindari property is not liable to sale in execution of a decree for sale obtained under section 88 of the Transfer of Property Act, and that they are not bond by the decree or by any proceeding in execution which may be taken hereafter. The suit for sale was brought to enforce a simple mortgage of ancestral property executed by Kure, the father of the present plaintiffs, with, whom they formed a joint Hindu family. The defendants to that suit were Kure and the present plaintiffs. The present plaintiffs were then minors, and the father was first named as their guardian ad litem, but he refused to act. Thereupon the plaintiffs' mother. Musammat Durga, was appoints their guardian ad litem. The suit ended in an ex parte decree for sale against all the defendants. No order absolute for sale has yet been passed under section 89 of the Act, or anything else done towards the execution of the decree. In this suit the plaintiffs sue virtually to set aside the decree, so far as it affects their rights, on the ground that their mother, Musammat Durga, being a married woman, her appointment as guardian ad litem was illegal with reference to section 457 of the Code of Civil Procedure, and that therefore they were not properly represented in the suit for sale and are not bound by the decree passed in that suit. It has been found, and is not disputed, that Musammat Durga was a married woman, and therefore could not legally be appointed a guardian ad litem of the minors in the suit for sale. It has not been found that there was any fraud connected with her appointment, or with the conduct of the suit, or the passing of the decree. Both the Courts below have decreed the claim on the ground that the plaintiffs not having been property represented in the suit for sale, the decree passed in that suit is not binding on them. It is urged in the appeal before us that the plaintiffs' suit is barred by the rule of res judicata. There can be no doubt that if the decree passed in the suit for sale is binding upon the plaintiffs, the present suit is barred by the rule of res judicata, no matter whether the decree was rightly or wrongly passed. The question is whether the decree is binding upon the plaintiffs. This question is by no means free from difficulty; but after giving the matter our best consideration, we think that it is concluded by the ruling of their Lordships of the Privy Council in Durga Persad v. Kesho Persad Singh and inferentiafly by the ruling of their Lordships in Mungniram, Marwari v. Mohunt Gursahai Nund . In the former case the minors sued for a declaration that a certain decree, which the appellants had obtained against their uncle Sheonandan Singh and another on his own behalf, and as guardian of those minors, ought not to be executed against them, on the ground that the debt contracted by the ancestor, for which the decree was obtained, had not been contracted for legal necessity and was not binding on them, that the uncle was not a properly constituted guardian, and that in the suit in which the decree was so obtained against them they were not properly represented. The Privy Council held that the decree in the suit was not binding upon the infants, as Sheonandan, who was named as their guardian, was not the legal guardian, and had no right to defend the suit in their name. In the latter of the two cases referred to above the suit was of a nature similar to the present. The plaintiff sued for a declaration that the decree and auction sale under which the defendant became purchaser of the property in suit were not binding upon him as he was a minor, and was not properly represented in the suit in which the decree was obtained. Their Lordships disposed of the suit on the ground that the plaintiff was properly represented in the previous suit against him, but they did not dismiss the suit on the ground that such a suit would not lie. It was suggested in the course of the argument in that case that the plaintiff's remedy was by way of an appeal, or an application to have the first decree set aside. But their Lordships did not decide the case on that ground, as they could easily have done. On the contrary, the judgment implies that a separate suit would lie. The right of a minor to sue to set aside a decree on the ground that he was not properly represented in the previous suit was recognised in Vishnu Keshav v. Ramchandra Bhaskar and in Daji Himat v. Dhirajram Sadaram . We may also refer to the case of Nawab Mahomed Nooroollah Khan Harcharan Rai , upon which the lower appellate Court relies. The learned vakil for the appellants has relied upon the case of Daulat Singh v. Raghubir Singh . In our opinion the judgment in that case, so far from supporting the appellants' contention, is against them. In that case it was found that the guardian was properly appointed, and was a person who could legally act as guardian, and it was held that the minor having been represented by a lawfully Constituted guardian, was as much bound by the decree in that suit as if he had been sui juris at the time and had represented himself. From his it may be inferred that if the minor had not been represented by a lawfully appointed guardian the decision would have been different. The ruling in Raghubar Dyal Sahu v. Bhikya Lal Misser to which reference was made on behalf of the appellants, does not, in our opinion, help the appellants. Ia that case Field, J., observed “If it be a suit to set aside the decree obtained against an infant properly made a party and properly represented in the case, and if it be sought to do this by a separate suit, I apprehend that the plaintiff in such a suit can succeed only upon proof of fraud or collusion.” This remark of the learned Judge, in our opinion, implied that he would not have held that the suit was not maintainable otherwise than on the ground of fraud or collusion, if the minor had not been properly represented in the suit in which the decree was passed. The result is, that this appeal fails and is dismissed with costs. We may mention that this case was heard by the late learned Chief Justice of this Court and one of us, and that the view which he took was the same as that now adopted by us.

Appeal dismissed.