Skip to content


Mahadev Shankar Lokhande Vs. Shankar Swamirao Lokhande - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai
Decided On
Case NumberFirst Appeal No. 356 of 1941
Judge
Reported inAIR1943Bom387; (1943)45BOMLR782
AppellantMahadev Shankar Lokhande
RespondentShankar Swamirao Lokhande
DispositionAppeal dismissed
Excerpt:
.....ad litem of his minor son-suit against father on mortgage of joint family property-how far such decree binding on minor son-manager, power of, to represent family in suits-individual member though separately served, not bound to put in separate defence-lunacy act (iv of 1912)-interim curator, appointment of.;in the case of a hindu joint family, where the manager has the power to bind the minor members of the coparcenary by an alienation for legal necessity, it is open to the son to challenge it in a suit brought to enforce the alienation on the ground that although it may be binding on the manager, it is not binding on the minor. his interest may, therefore, conflict with that of the manager, as the defences of both may be separate and even antagonistic if the manager wants to throw..........was obviously adverse as he had purchased in the name of his sons the decrees passed against the minor's father and was thus personally interested in the minor's estate adversely to her. all this was proved in the suit to set aside the decrees and sales, and it was, therefore, held that the minor was never a party to any of the suits in the proper sense of the term, it is clear on the facts of that case that the adverse interest of the uncle in the former proceedings was definitely proved in the subsequent suit and relief was granted to the plaintiff on that ground. that decision, therefore, is not an authority for the proposition that the appointment of a father as guardian ad litem of his minor son is itself sufficient to set aside the decree on the ground of conflict of interest......
Judgment:

Divatia, J.

1. [His Lordship stated the facts of the case and on examining the facts of the case arrived at the conclusion that the mortgage as well as the sale transactions were for legal necessity and were not for illegal or immoral purposes. The judgment then proceeded :] The main argument based on legal ground is that in the previous suit by defendants Nos. 3 to 5 the plaintiff's father was appointed his guardian ad litem in spite of a conflict of interest between them in disregard of the provisions of Order XXXII, Rule 4, of the Civil Procedure Code, and that, therefore, the compromise decree was not binding on the plaintiff irrespective of the merits of his contention in the present suit. The alleged conflict is that it would always be in the interest of the father to pay off his debts from the joint estate in which his minor son has a share even though the debts were illegal and immoral and as such not binding on the son, and that in a suit by the creditor against the father and the minor son, the father should not be appointed as his guardian ad litem as he would not be expected to plead on behalf of his son the illegality or the immorality of his own debts. The argument, in fact, amounts to this that the father in a joint Hindu family, although a natural guardian of his minor son, should not be appointed as his guardian ad litem in a suit brought on a debt incurred by the father as manager of the family, and if so appointed, the decree in such a suit is a nullity as against the minor's share. There is no doubt that if the son subsequently succeeds in proving that the debts for which the decree in the previous suit was obtained were not binding on him in law, he would succeed on the merits, and in such a case the question whether the previous decree was bad against him as the father as his guardian ad litem did not really represent him would not remain. But Mr, Thakor goes further and contends that even though the son may not succeed in proving on the merits that the debts were not binding on him, the previous decree must be set aside on the bare ground that on account of a possibility of conflict of interest the father cannot really represent his son as his guardian-ad-litem. The result of that argument would be that in the son's suit the previous decree in which the father was his guardian ad litem must be set aside against him even though on the merits the Court holds that the debts for which the decree was passed were binding on the son. There is no doubt that a person whose interests appear to be adverse to those of a minor should not be appointed his guardian ad litem, and if there is an adverse interest in fact, a decree would not be binding on the minor at his option, But where a person, especially a natural guardian, is appointed as guardian ad litem, in absence of anything to show that his interest conflicted with that of the minor and a decree was then passed against the minor's share, the question as to the binding nature of the decree against the minor cannot be decided without determining whether on the facts proved there was a conflict of interest between the guardian and the minor, and that cannot be done without going into the merits of the case.

2. In support of his contention Mr. Thakor has relied upon the decision in Sellappa Goundan v. Masa Naiken I.L.R. (1923) Mad. 79 which purports to follow the Privy Council case of Rashid-Un-nisa v. Muhammad Ismail Khan . There the suit was filed for a declaration that a decree obtained against the father himself and as guardian ad litem of the minors was not binding on the minors, as the debt sued upon was not an antecedent debt and was borrowed for the purpose of buying new lands and the father acted negligently in not setting up the defence that it was not binding on the minors. It was held on the evidence that the debt was of such a nature as would not bind the sons and that the defence that the minor's share was not liable would have prevailed if it had been set up in the former suit, and that therefore, the father acted with gross negligence in not setting up that defence. The father's interest was thus clearly adverse to that of the minors, and it was held that the decree was not binding on the sons on the ground that a minor represented by a guardian whose interest was adverse was not legally represented at all. This decision can be clearly distinguished from the present case, because it was found on the evidence in that case that the debts were not binding on the minors. Except on this finding it is difficult to see on what other ground the decision would have been what it is. Mr. Thakor, however, relied on certain observations that it was improper and in fact illegal to appoint the father as guardian at all, and that a minor represented by a guardian whose interest was adverse was not legally represented. It is contended that those observations support the argument that the appointment of the father as guardian ad litem was illegal in its inception on account of a possible conflict of interest, and that the decision of the Privy Council in Rashid-Un-Nisa v. Muhammad Ismail Khan also supports that contention. In that case the suit was filed on behalf of the minor for a declaration that certain decrees and sales were not binding on the plaintiff as she was not properly represented in the proceedings from which they resulted. It was held that they were invalid because the sister of the minor being a married woman was not the proper person to be appointed as guardian ad litem, and as regards the other guardian, who was the minor's uncle, his interest was obviously adverse as he had purchased in the name of his sons the decrees passed against the minor's father and was thus personally interested in the minor's estate adversely to her. All this was proved in the suit to set aside the decrees and sales, and it was, therefore, held that the minor was never a party to any of the suits in the proper sense of the term, It is clear on the facts of that case that the adverse interest of the uncle in the former proceedings was definitely proved in the subsequent suit and relief was granted to the plaintiff on that ground. That decision, therefore, is not an authority for the proposition that the appointment of a father as guardian ad litem of his minor son is itself sufficient to set aside the decree on the ground of conflict of interest. This decision is considered by the Calcutta High Court in Shaik Abdul Karim v. Thakurdas Thakur I.L.R. (1928) Cal. 1241, where Rankin C.J. has rightly observed as follows (p. 1238):

I would desire in particular to guard myself against holding that in any case where a guardian ad litem is appointed by a Court the person afterwards by showing adverse interest can get a right to treat the decree as a nullity. I doubt extremely whether the case of Rashid-Un-Nisa v. Muhammad Ismail Khan,... (to which I have already referred),... which is relied upon for that proposition, really goes so far and I am not to be taken as subscribing to every thing that is said in the case of Sellappa Goundan v. Masa Naiken.

These remarks have been approved by the Patna High Court in Chitradhar Narain Das v. Khidar Thakur I.L.R. (1937) Pat. 236. In that case the suit was filed to set aside a mortgage decree on the ground that the minors were not properly represented by their father as his interest was adverse. It was held on the evidence that as the defences open to the minors were not put forward by the guardian, the decree was not handing on them, but that it cannot be said without going into the merits that the decree was bad simply because the father's interest conflicted with that of the sons. Even the Madras High Court has, in a full bench decision in Venkatasomeswara Rao v. Lakshmanaswami I.L.R. (1928) Mad. 275 modified the observations made in Sellappa Goundan v. Masa Naiken. It is held there that although it may be undesirable to appoint a person as guardian ad litem whose interest might possibly conflict with that of the minor, the appointment and the decree passed in the suit is not a nullity as against the minor on that ground alone, that it is a question of fact governed by no hard and fast rule of law, and that there is nothing either in the Code or in any of the authorities to lay down not merely that such a person should not as a rule be appointed but cannot in any circumstances be validly appointed.

3. Mr. Thakor has further relied on certain observations of the Allahabad High Court in Murlidhar v. Pitambar Lal I.L.R. (1922) All. 525. In that case the minor's uncle was appointed as his guardian ad litem in a previous suit to enforce a mortgage created by the uncle who was the manager of the family, and the uncle confessed to a decree against himself and the minor. In a suit toy the minor through a next friend to set aside the decree as against him, it was held on the evidence that the mortgage was made for the private speculation of the uncle and for certain alleged home expenses which were found to be false. The mortgage, therefore, was held as not binding on the minor and the decree was set aside as against him. In the course of the judgment it was observed that where the mortgage was made by the manager of the joint property of himself and the minor, a duty was cast on the Court to consider whether the manager, who could not repudiate his own mortgage, was at all a proper person to represent the minor, and that if it appointed a person disqualified under Rule 4 of Order XXXII, it was an illegality rather than a mere irregularity. Those observations, however, do not mean that the appointment of the manager as guardian ad litem is by itself illegal apart from the prejudice caused to the minor. In fact the final remarks in the judgment on this point are that in all such cases where a minor subsequently sues to set aside a decree as against him on the ground that he was not properly represented, the merits have to be gone into, and that if the Court finds that he had not been prejudiced, it was unnecessary to go into any other question. This decision, therefore, does not support the contention that the previous decree could be set aside irrespective of the merits of the subsequent suit on the point of the binding nature of the transaction on the minor. On the other hand, such a contention has been expressly negatived by the same High Court in Sundar Lal v. Kunwar Hari Har Sahai : AIR1937All552 . The lower Court had held there that where the father who had executed the mortgage-deed acted as guardian ad litem, the trial was vitiated on that ground alone and there was no necessity to go into the question as to whether or not the deed relied upon by the mortgagee was made for legal necessity. The High Court disagreed with that view and stated that the minor should be granted relief only in those cases in which he is able to establish that the transaction was not binding on him for want of legal necessity or some other cause and that his interest had suffered by the appointment, It was further observed that however desirable it may be not to appoint the father as guardian ad litem on account of a possible conflict of interest, if, however, he was appointed, it did not follow that it was his duty to create and manufacture evidence in order to support the case of the minor. We find ourselves in complete agreement with this view.

4. The last case relied on by Mr. Thakor is Chettyar Firm v. Mg. Shwe Hmun A.I.R. [1938] Ran. 468. There the parties were Burmese Buddhists, and the mortgage was executed by a person for himself and on behalf of his minor brother and sisters. In a suit on the mortgage the executant was appointed as guardian ad litem of the minors and a decree was passed. In a subsequent suit by the minors to set aside the decree against them, it was held that all the executants were co-debtors and the major brother who was only a de facto guardian had, under the personal law governing the parties, no authority to affect the interest of the minors in the property; the parties were regarded only as co-debtors, and as one debtor was interested in seeing that his co-debtors did not escape their joint liability, his appointment as guardian ad litem was ipso fact adverse to the interest of the minors. That decision has no application to the facts of the present case where the father is not only a natural guardian of his son but can bind him by any transaction which is for an antecedent debt and is not illegal or immoral.

5. These are all the relevant cases bearing on this point and we think the result can be sumimarized thus : In the case of a Hindu joint family where the manager has the power to bind the minor members of the coparcenary by an alienation for legal necessity, it is open to the son to challenge it in a suit brought to enforce the alienation on the ground that although it may be binding on the manager, it is not binding on the, minor. His interest may, therefore, conflict with that of the manager as the defences of both may be separate and even antagonistic if the manager wants to throw the burden of his private debt on the family. In such a case it would be undesirable to appoint the manager as the guardian ad litem for the minor in the suit, but if he is so appointed and a decree is passed against the minor's interest in the property, it cannot be said, in absence of fraud or collusion on the part of the manager, that the decree is a nullity merely because the manager ought not to have been appointed as his guardian. If the minor subsequently sues to set aside the decree, he must show that the alienation was not, in fact, binding on him. This would be especially so where the manager is the father who is the natural guardian of the minor and whose personal debts also are binding on the son if they are antecedent to the alienation and are not illegal or immoral In the present case there is no proof of fraud or collusion on the part of the father, and the debts for which the mortgage and the sale were made are not shown as not binding on the son. The interests of the father and the son are not thus conflicting. We are of opinion, therefore, that the mortgage decree is not proved to be not binding on the son on this ground.

6. The next point urged on the appellant's behalf is that the father acted against the minor's interest in compromising the mortgage suit practically by submitting to a whole decree and that too before the written statement was filed. It is true that except remitting the pleader's fees the plaintiffs did not give up anything. The application for sanctioning the compromise, however, shows that the defendants had to pay the debts of other creditors also, some of whom had obtained decrees ordering the sale of the defendants' property subject to the mortgage incumbrance. It was prayed that if all the properties were sold in one lot subject to the mortgage burden, they would not fetch a proper value, but if they were sold in separate lots, they would fetch a better price and some properties might thus be saved after discharging all the debts and that the defendants would be benefited if the plaintiffs' debts were discharged, especially as the interest on the debts was increasing. The Court sanctioned the compromise as for the minor's benefit. The statement in the order that the defendants had obtained remission of the Court costs seems to be a slip as it was stated in the application itself that what was remitted was the pleader's fees out of the Court costs. That, however, has not caused any prejudice to the minor, because apparently there was no defence to the plaintiff's claim. There is nothing to show that the father was in collusion with the plaintiffs or that he was under their undue influence. On the evidence led in the present suit most of the debts, as I have shown above, appear to be business debts of the cloth shop of the family, and no direct connection between them and the father's alleged immoral conduct has been proved, If, therefore, defendant No. 1 had no real defence to make either for himself or for his minor son, it cannot be said that the certified compromise, although it practically amounted to submitting to a full decree, was not binding on the minor.

7. The last point pressed on behalf of the appellant to avoid the mortgage-decree is that the suit was invalidly filed by the then plaintiffs and the present defendant No. 3 was not really a party as plaintiff No. 1 in that suit. The facts relating to this point are these:-The mortgage-deed was passed by Parvatappa, defendant No. 3 in the present suit. At that time his two sons, the present defendants Nos. 4 and 5, were minors. Thereafter in August 1934 Ramappa the elder son, after attaining majority, applied to the District Court for the appointment of a curator under the Lunacy Act alleging that his father was of unsound mind and that the applicant should be appointed as manager of the family business. The Court appointed one Deshpande as an interim curator for filing suits which would otherwise get time-barred till the disposal of the application. That application was subsequently not pursued on account of a settlement between the parties, and in July 1935 it was dismissed for non-prosecution. In the meanwhile, on September 11, 1934, the mortgage suit was filed. The first plaintiff was Parvatappa who was described as a lunatic but he was not represented by the interim curator but by his son Ramappa as his next friend who was also shown as the guardian of his minor brother. It was stated in the plaint that the three plaintiffs formed a joint Hindu family, that Parvatappa had taken the mortgage as manager of the family, that as he had become demented about a year before the suit, Ramappa, the next senior member of the family, had taken up the management of the family business and was thus the manager at the date of the suit. The suit ended in the compromise decree. In the present suit the plaintiff sought to produce the application in the lunacy proceedings and the term of settlement in that matter. The lower Court rejected that application to produce them as they were tendered at a late stage after the parties had closed their case, and it is the appellant's grievance before us that it was wrongly rejected. We have, however, taken those documents into consideration, because even if they were accepted, it would not affect the decision on this point. The terms of the settlement were that Ramappa should make the management of the family and its business and take the advice of his father, that the latter should spend not more than Rs. 1,000 per year for any charitable object and that the family should remain joint. As a result of this settlement the lunacy proceedings were dismissed for non-prosecution. It is clear on the oral evidence and on the terms of this settlement that Ramappa was working as manager of the family business from 1933 even before the application under the Lunacy Act was made and he continued to do so under the terms of the settlement even till the final decision of this suit. Mr. Thakor's point, however, is that the interim curator should have brought the mortgage suit on behalf of Parvatappa, It is difficult to see under what provisions of the Lunacy Act the interim curator was appointed. There is nothing in the chapter relating to the appointment of curators in the mofussil towns which would empower the Court to appoint an interim curator, As observed in Saroj Basini Debt v. Mahendra Nath Bhaduri I.L.R. (1927) Cal. 836 there is no question of interim orders pending the determination as to the person's state of mind, and there is no provision in Chapter V of the Lunacy Act to appoint an interim curator. The appointment is to be made only if the person is found by inquisition to be a lunatic. In our opinion, the appointment of the interim curator being not justified under the Lunacy Act, the argument that he alone could have brought the suit falls to the ground. The evidence, however, satisfactorily shows that Ramappa, defendant No. 4, was in actual management of the business even before the lunacy petition was made, and under Hindu law if the manager ceases for some reason or other to act as such, it is open to the next senior member of the coparcenary to act as such manager, and any transaction made by such manager would be binding on all the members of the family, including the person who was managing the property before. As held by the Privy Council in Sheo Shankar Ram v. Jaddo Kunwar the manager of a Hindu family so effectively represents all the members of the family that the whole family is bound, and there are also observations in Kishen Parshad v. Har Narain Singh to the effect that the managing member of a joint family business can maintain suits to enforce contracts without making the other members of the family as parties. In our opinion, therefore, the fact that the mortgage was taken by defendant No. 3 in his own name would not disentitle the other members of the family business from filing a suit to enforce the mortgage provided the person who was managing the property at the time when the suit was brought was the plaintiff in that suit. There is, therefore, no substance in the objection that defendant No. 3 should have brought the mortgage suit.

8. With regard to the position of defendant No. 3 at the time of the present suit, the plaintiff did not implead him as a lunatic, nor is there anything to show that he was such during the pendency of the present suit, and the learned Judge does not seem to be right when he observes in the judgment that defendant No. 3 was really and continued to be insane even during the pendency of the present suit. It must be taken that for the purpose of the present suit defendant No. 3 is not a lunatic at all because it has not been proved that he was so at any time as the proceedings under the Lunacy Act were dropped. But Mr. Thakor's argument is that defendant No. 3 has accepted service in the present suit and has not put in any defence, and that therefore all the allegations in the plaint must be deemed to have been accepted by him and thus binding on him at any rate. Reliance is placed upon the decision of this Court in Shriram Surajmal v. Shriram : (1936)38BOMLR577 . But that case could be easily distinguished from the facts of the present case where the manager, defendant No. 4, has put in the defence on behalf of the family when he is acting as such. His defence must, therefore, be taken to be the defence of defendant No. 3 for the purpose of the present suit. The fact that defendant No. 3 has not filed any written statement cannot be taken as an admission on his part about the allegations made in the plaint. We think, therefore, that there is no substance in this point also.

9. There is one point, however, to which the learned Judge below does not appear to have applied his mind. Even if the mortgage-decree is binding on the present plaintiff, that decree is not still executed, and the equity of redemption of the mortgaged property still vests in the plaintiff and defendant No. 1. It is conceivable that after the mortgage-decree is executed there may be a balance left after satisfying the mortgage debt, and the plaintiff would be entitled to his one-third share at any rate in the balance. We, therefore, think that the decree of the lower Court dismissing the entire suit of the plaintiff is not quite correct, and that a declaration be granted that if there is any property left after the mortgage-decree is satisfied, the plaintiff would be entitled to a one-third share in the same.

10. We, therefore, pass a preliminary decree in favour of the plaintiff declaring that he has one-third share in the properties in suit except the property, sold to defendant No. 6 and subject to the mortgage-decree in favour of defendants Nos. 3, 4 and 5.

11. Substantially the appeal fails. The appellant must pay the costs of the respondents in separate sets, one in favour of defendants Nos. 4 and 5 and the other in favour of defendant No. 6. Costs are to be paid personally by the next friend of the appellant, but liberty will be reserved to him to proceed to reimburse himself out of the estate of the minor. The plaintiff's next friend should pay the Government's costs of this appeal.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //