1. The plaintiffs sued for a declaration that the decree in suit No. 24 of 1919 against their father which was in connection with the suit property was not binding on them on the ground that their father Jamiet-ram did not properly represent them in that suit and had been guilty of gross negligence. The defendants, now respondents, pleaded that the suit was barred by Section 42 of the Specific Relief Act, that it was barred by res judicata as Jamietram did represent the plaintiffs in that suit, and that it was barred by the law of limitation. The learned Subordinate Judge framed four preliminary issues, and as a result of his findings on those issues he dismissed the suit. The plaintiffs have appealed.
2. The first issue raised by the learned Judge was whether the suit is not barred by res judicata. He held that it was barred by res judicata inasmuch as the father Jamietram had defended the suit and had fought the matter up to this Court and that he represented his minor sons. He held that his minor sons had been properly represented by him. But he neglected to notice that the main ground of the plaintiffs was that their father had been grossly negligent in the conduct of the case. His finding that Jamietram had in fact represented their interests was therefore insufficient for the disposal of the case. It is clear law that a minor has a right to sue to void a decree which is obtained against him owing to gross negligence of his guardian, and the rule would apply whether the guardian be a guardian adlistem appointed by the Court, friend, or even the Hindu law guardian, i.e. his father
3. We consider that the learned Subordinate Judge has erred in this matter. He has also erred in his findings adverse to the plaintiffs on, two other issues. He has held that the suit was barred by Section 42 of the Specific Relief Act on the ground that the plaintiffs who were out of possession were bound to sue for possession, and that since they did not sue for possession and had not taken the opportunity of amending their plaint when the flaw was pointed out to them by the defendants in their written statement, they could not be allowed to amend and to continue the litigation. This finding, we think, was unfair to the plaintiffs. It was their case that not the present defendants but their own brother was in possession of the suit property and since the learned Subordinate Judge was disposing of the matter on preliminary issues before recording evidence, we do not think that he was justified in referring to the papers on record and deciding on that evidence without giving the plaintiffs an opportunity of leading further evidence if they wished to do so.
4. As a matter of fact whether the defendants were in possession or the plaintiffs' brother was in possession we think that the plaintiffs should not have confined their suit to requests for a mere declaration. If the defendants were in possession they should have asked for possession of their share by partition and if their brother was in possession they should have asked for an injunction to prevent the defendants interfering with their rights in the property.
5. A third issue decided against the appellants was that of limitation. The learned Subordinate Judge found that Section 7 of the Indian Limitation Act barred their claim. Section 7 runs thus : ' Where one of several persons jointly entitled to institute a suit is under any such disability, and a discharge can be given without the concurrence of such person, time will run against them all.' The learned Subordinate Judge found that the plaintiffs' elder brother hadcome of age more than three years before suit and was entitled to sue on behalf of himself and of the plaintiffs, and, therefore, following the authority of Bapu v.Bala : (1920)22BOMLR1383 he held that time had begun to run against the plaintiffs when their brother attained the age of eighteen. We think that this section is not applicable to the facts of the present case and that they differ from the facts of Bapu v. Bala inasmuch as the elder brother was not the manager of the family and was not entitled to sue on their behalf.
5. Mr. Majmudar has raisd a defence of Hindu law. His argument is that the plaintiffs cannot in any case succeed in this suit inasmuch as they have no interest in the property in suit. Their case was that their father had obtained title to the suit property which had been joint family property by excluding his coparceners, and Mr. Majmudar contends that a member of a joint family who obtains title by excluding his coparceners holds the property so acquired as his self-acquisition. He has referred us to no authority in the case law nor can we find any discussion of this point in the books. He argues that what the father has obtained by physical force active or passive ought to be reckoned as his self-acquisition on the analogy of gains of science acquired by him by his intelligence without detriment to the joint family property. There was no detriment to the joint family property in this case and we think that had the father obtained title by adverse possession from a stranger, the learned advocate's argument would have had great force. But a distinction must be made between property of which title is acquired by adverse possession from a stranger and that obtained from the joint family under the joint effect of Article 127 and Section 28 of the Indian Limitation Act. The father had an interest in this joint family property by birth. His interest was conditioned by the interests of the coparceners. It was liable to be increased by the death of his coparceners or by their exclusion. But the change in the quantum of his share did not in our opinion alter the nature of the property. It has never lost its character as ancestral property and in our opinion his sons at birth obtained the right of coparceners in it with him.
6. The result is that this appeal must succeed. It is very unfortunate that the learned Subordinate Judge did not think it necessary to decide this small case on its merits originally, for now five years have been wasted. But the case must now go down for trial on the merits. We remand it under Order XLI, Rule 23. The plaintiffs will now have permission to amend their plaint so as to satisfy the requirements of Section 42 of the Specific Relief Act. Costs of the appeal will be costs in the cause.
7. This order applies to the first appellant only. Appellant No. 2 has come of age since the filing of the appeal and has not elected to continue the appeal. In fact he has made no application in the matter. We feel justified in assuming that he has elected to abandon his appeal. Therefore the decree of the lower Court against him will be final.