The facts of the case are sufficiently set forth in the judgment of the Court (1), which was delivered by Markby, J.:—
In this case the plaintiffs sued to set aside a certain decree ??? against two of the plaintiffs by the Subordinate Judge of Nuddea, and to stay proceedings in execution of that decree.
One Gooroodass Dass died in 1863, leaving six sons, who lived together as a joint Hindoo family. Doorgadass Dass, the eldest son of Gooroodass, died in December 1865, leaving two minor sons, being the two plaintiffs in the suit above-mentioned, against whom the decree was obtained which this suit was brought to set aside. The family was possessed of various properties, real and personal, and also of certain trades and businesses. On the 12th of March 1866, Nursing Persad Dass, one of the brothers, was appointed by the High Court receiver of the trades and businesses, another receiver being appointed for the rest of the property. In February 1873, five surviving sons of Gooroodass were declared insolvent, and all their property, moveable and immoveable, became vested in the Official Assignee. After this the defendant, Grish Chunder Mookerjee, sued the insolvents in the Court of the Subordinate Judge of Nuddea, and obtained a joint decree against all the defendants for Rs. 29,716-5-3. Proceedings in execution were taken, and certain properties belonging to the family were ordered to be sold in execution of the decree. The Official Assignee objected, but his objections were overruled, and he then at once filed this plaint against the execution order, joining with himself the two minor sons of Doorgadass Dass.
Subsequently, the plaintiffs filed a written statement, in which they stated that the sale had taken place, and that the property had been sold to one Tariny Churn Chatterjee for an inadequate price. They also stated that the decree in the suit by Grish Chunder had been obtained by fraud, and that the guardian of the minors had in that suit been guilty of misconduct. Tariny Churn Chatterjee was, on the 8th February 1875, made a party to this suit.
The Subordinate Judge held, first, that the minors were not parties to the suit in which Grish Chunder obtained his decree secondly, that the decree in that suit, even if they were parties to the suit, was not binding upon the minors, by reason of the fraud of Grish Chunder and the misconduct of their guardian; thirdly, that the property of the insolvents was vested in the Official Assignee, and therefore could not be sold under the decree against the insolvents; and he accordingly declared that the minors were not bound by the decree in Grish Chunder's suit, and that their interests and those of the Official Assignee were in no way affected by the sale in execution of that decree to the defendant Tariny Churn Chatterjee.
The two defendants have preferred separate appeals which have been heard together.
The decision of the Subordinate Judge upon the third point in favour of the Official Assignee has not been contested, and the points which have been argued here for the appellants are: (1) that the minors were parties to the suit brought by Grish Chunder; (2) that there was no fraud or misconduct which would vitiate the decree passed in that suit; and (3) that Tariny Churn, having purchased at a sale in execution of decree, had a good title notwithstanding any defect in the decree.
As regards the first point, we think the Subordinate Judge was wrong in saying that the minors were not parties to the suit of Grish Chunder. That suit was brought against (inter alies) Nursing Persad Dass for self and as guardian of the minors, Ashotosh Dass, and Mohetosh Dass, and Saroda Soondry Dassee, wife of the late Doorgadass Dass, second guardian of the minors.
No doubt the form of the suit is strange and incorrect, but there can be no question that the intention was to sue the minors, and if there had been no other objection to the decree, we should hold that it was binding on the minors. It is no doubt most unfortunate that more attention is not paid to these matters of form in the Mofussil Courts, but there is no authority for saying that where the minors have been really sued, though in a wrong form, a decree against them would not be valid. Neither the case referred to by the Subordinate Judge (11 B.L.R, 171), nor that cited by Mr. Hill (12 B.L.R, App., 2) go to that extent.
The next question is, whether the decree is void as against the minors by reason of the fraud of Grish Chunder or the misconduct of those who represented the minors in the suit. Three objections have been taken to the decree under this head: first, that the guardians allowed the minors to have a decree passed against them for debts which were barred; secondly, that there should have been no personal decree at all against the minors; and, thirdly, that there should have been a plea of part payment which must have been proved.
It is not established to our satisfaction that the Statute of Limitations could have been successfully set up to any part of this claim; but there was certainly great negligence in allowing a personal decree to go against the defendants. It has indeed been doubted whether minors can be made liable for the trade debts of an ancestral partnership at all; and, although that doubt is now removed, still no Court would make minors liable for anything more than their share in the partnership property, and it was wholly wrong to allow a personal decree to go against the minors without objection. Apparently no separate defence was made at all to the suit of Grish Chunder by the guardians of the minor.
There was also gross misconduct, and even fraud, in the neglect to plead part payment. We think we cannot do otherwise than accept as true the statement of Grish Chunder, made on the 23rd February 1876, which was, that, on the 3rd April 1873, Rs. 1,000 were deposited with him by Nursing Persad Dass, and on the 15th January 1874 Rs. 6,000 more were deposited, on arrangement being made at the same time for the execution of a kistibundee for Grish Chunder's debt, with security for the balance. This arrangement not being carried out, Grish Chunder brought his suit, and obtained the decree which it is now sought to set aside; but the estate being already at that time vested in the Official Assignee, and for fear that money being found in the hands of Nursing Persad Dass he might be punished, he and Grish Chunder purposely abstained from saying anything about that deposit. This was a fraud on the part of Nursing Persad, who was managing the suit for the minors, and nothing else. No doubt he did not intend that the money deposited should go into Grish Chunder's pocket; but it left the minors at Grish Chunder's mercy, and it was a wilful withholding from the Court of facts which he was bound to disclose. We have no doubt whatever that as against the minors a decree so obtained is void.
It is also clear to us that Tariny Churn Chatterjee is in no better position than Grish Chunder himself. He is Grish Chander's son-in-law; he had distinct notice at the time of the purchase, that the property which was being put up for sale had been made over to the Official Assignee, and that both the Official Assignee and the minors had instituted a suit, which was then under trial, to set aside the decree under which execution was proceeding. Tariny Churn having chosen to purchase after receiving that notice must take the consequences. He cannot claim that he was a bona fide purchaser who had a right to assume that the property was being sold under a valid decree. We think, therefore, that the decree of the lower Court was a right decree, and dismiss the appeal with costs.