1. I think that the learned Judge was quite right and that what occurred at the trial of the former suit estops the plaintiff from bringing this suit.
2. This suit was brought for the purpose of establishing the plaintiff's adoption, and of having the trusts of the will of the late Mohesh Chundra Safooi declared. The former suit was brought, so far as the plaintiff was concerned, with the same object, namely to have his rights declared as the adopted son of Mohesh Chundra. His adoptive mother sued on her own behalf to have her rights declared under her husband's will, and also as the nest friend of the present plaintiff, to establish his rights as the adopted son, and one point raised in the pleadings was as to the validity of his adoption.
3. Then what occurred at the trial was this. We understand that no evidence was offered; but that the question of the validity of the adoption was argued by the Counsel for the plaintiff upon the plaint as it stood. The statements in the plaint were very full, and it seems to have been admitted on the part of the plaintiff that the consent of the sister, Nundamoni Dassee, was necessary to the validity of the adoption.
4. A long correspondence was set out in the plaint, which, so far from showing any consent on the part of the sister, rather tended, to prove the contrary; and after the point had been fully argued, it seems that Mr. Lowe, the plaintiff's Counsel, seeing that the opinion of the Court was against him, asked leave to withdraw the suit; and, I think, we must presume that he applied to do so under Section 97 of Act VIII of 1859; because in the note of what took place, we find that the Judge, though he allowed the suit to be withdrawn, refused leave to bring a fresh suit. The rule laid down by that section has always, as far as we are aware, been acted upon as law on the Original Side of this Court, and there is no other rule under which Mr. Lowe could have asked to withdraw the suit and bring a fresh one.
5. That being so, it appears to me that the withdrawal of the suit under Section 97 operated (not strictly speaking, as a res judicata), but as a bar to prevent the plaintiff bringing any fresh suit to establish his adoption.
6. Mr. Bonnerjee has argued that, although the Judge might have acted on that occasion upon the rule as laid down in Section 97, and although the withdrawal of the suit under that rule might, in the case of an adult person, have had the effect of barring any fresh suit for the same cause, that would not be so in the case of a suit brought on behalf of a minor, because the minor could have had no means of judging for himself, whether the withdrawal was a prudent or proper course to take.
7. But it seems to me that there is no force in that argument.
8. As long as we have reason to believe, that the suit is lawfully brought by a party who has a right to bring it on behalf of the minor, it seems to me that any withdrawal of the suit by that party has precisely the same effect as the withdrawal of a suit by a person of full age. It is difficult to see why a suit properly brought on behalf of any other person, who cannot act for himself, should be subject (so far as the present question is concerned) to other rules, than those which are applicable to suits brought by parties in their own names.
9. Mr. Bonnerjee, by way of illustrating his argument, asks us to suppose the case of a person, who had nothing to do with a minor, and no right to sue on his behalf, bringing an action of trespass in the minor's behalf, and then, finding that the defendant had a good defence, withdrawing the suit on no better authority than he brought it. But that would be a totally different case from the present, simply because the person bringing the suit would not be the proper person to bring it.
10. If Mr. Bonnerjee could have shown in this case that there had been any impropriety in the minor's mother bringing the former suit, and that the minor, for that or some other reason, was not bound by her acts or the acts of the person who managed the suit for her, that would have been a different thing. But here it is conceded that the mother was the proper person to bring the former suit, and no objection was taken on that score, either in the former suit or in the Court below, or in this appeal.
11. We must, therefore, take it that the former suit was properly brought, and that being so, it seems to me that the withdrawal of the suit had the same effect as the withdrawal of a suit by an adult person.
12. That disposes of the first contention.
13. But there was another point raised by the appellant, which, if there had been any facts to support it, would have been perfectly good in point of law, namely, that the person who managed the suit on behalf of the plaintiff and his mother, withdrew it in fraud of the plaintiff, and in collusion with the defendant Nundamoni Dossee.
14. Of course, if there had been any ground for this contention, and if we were satisfied that it had been properly presented to the Court below, and the Court had refused to frame an issue to try it, I should consider that we ought to remand the case for the trial of such an issue.
15. But I am satisfied that this point, although it might have been mentioned, was not really pressed upon the attention of the Judge. I think if it had been refused, the Judge would have said something about it in his judgment, and some mention would have been made of it in the grounds of appeal. I am, therefore, not prepared to say that the learned Judge was wrong in not framing an issue upon that point.
16. At the same time, having regard to the plaintiff's position, if I were even now satisfied that the plaintiff had any real ground for contending that the withdrawal of the suit was brought about by fraud, I should certainly have been disposed to allow him, on proper terms, an opportunity of trying that issue in the Court below.
17. But I think, before we allow any party to raise an issue of fraud at this stage of the proceedings, we ought to be satisfied that there is some real ground for the contention; and it was for this reason that we required Mr. Phillips, when the Court rose yesterday, to produce an affidavit showing in detail what grounds his client had to support the contention.
18. An affidavit has accordingly been produced, made by the plaintiff himself, and I am satisfied from that affidavit that he has no sufficient ground to justify us in allowing such an issue to be raised.
19. The affidavit only states that the mother's consent was neither asked nor granted for the withdrawal of the former suit, and that the person who was managing the suit received certain sums of money (not stating any amount) from the defendant Nundamoni Dassee, both before and after the withdrawal. But it does not appear that those sums were paid for any improper purpose.
20. The only suggestion of any fraud is made by the plaintiff himself in these words:
"I allege that these payments were made as a consideration to the manager for withdrawing the suit."
But he gives us no reason for supposing that the allegation is well founded. It is only made in this general form by the plaintiff, who, at the time when the suit was withdrawn, was a child of some five or six years old, and could, of course, have known nothing of the matter.
21. We should do very wrong to allow an issue of fraud to be tried at this stage of the cause upon no better grounds than are disclosed in the affidavit.
22. There is only one other point upon which I think it right to say a few words.
23. We had some doubt during the argument whether, assuming that the withdrawal of the former suit to have been brought about by fraud, the plaintiff could bring the present suit without having taken some steps to set aside the former judgment; because this is not; the case of res judicata, properly so called but an absolute statutory prohibition imposed upon a party who has withdrawn a former suit without leave to bring a fresh one.
24. But it seems to me, on consideration, that the rules which apply to cases of res judicata must apply generally to a statutory bar of this kind.
25. It was said in the Duchess of Kingston's case, quoting the opinion of Lord Coke, that "fraud vitiates the most solemn proceeding of Courts of Justice." and I think that, if in a case like the present it could be shown that the withdrawal of the former suit was brought about by fraud and collusion between the party managing the suit and the defendants, the minor plaintiff might relieve himself from the consequences of the fraud in one of three ways: 1st, by an application to the Court in the suit in which the withdrawal took place; 2ndly, by a regular suit to set aside the judgment founded upon the withdrawal; or, 3rdly, by bringing a fresh suit for the same cause, and setting up the fraud as an answer to the statutory bar.
26. In this case, as there is no sufficient ground for raising the question of fraud, the appeal must bo dismissed, and the appellant must pay the costs on scale No. 2.
Cunningham, J.
27. I concur on both points with what has just fallen from my lord.
28. The principal point urged in the appeal, namely, that Section 97 of Act VIII of 1859 did not contemplate the case of a minor represented by a next friend, is one which is of great importance as regards the position of minors who are brought into the case, and it is well that we have had the advantage of two learned arguments upon it; but I confess that the result of that argument is that, however reluctant we may be to accept a state of things which is calculated in some instances to work hardship to minors, I think that we must take it to have been the law, that where a minor is represented in the manner sanctioned by the law, and the person so representing him adopts a procedure to which particular consequences attach by the Code, then those consequences must affect the minor. For this reason I think that Section 97 must be regarded as precluding the minor from re-opening the matter involved in a former suit from which the person acting for him has withdrawn. I also think that there are no grounds on which we can allow the issue of fraud to be raised at this stage of the proceedings.