1. These are two applications by Sonubai, widow of Baburao, to set aside the orders made by this Court on the 28th February 1916 dismissing the appeal and rejecting the application under Extraordinary Jurisdiction filed on her behalf by her next friend for default under Order XLI, Rule 17. The circumstances under Which the applications are made are these : Sonubai's husband Baburao filed Suit No. 410 of 1911 in the Court of the First Class Subordinate Judge of Poona for a partition of the joint family property and to recover his half share against Krishnarao. One Limbaji had three sons, Balwantrao, Gopalrao and Gangaram. Balwantrao died leaving a son, Baburao. Gopalrao died leaving a son Krishnarao. Thus Baburao and Krishnarao were cousins. Gangaram was not joined as a party to the suit, as it was stated that he had already separated. The joint property was stated to be very valuable. Baburao valued his half share at Rs. 18,72,005. In 1912, Gangaram filed Suit No. 359 of 1912 in the same Court in his own right and on behalf of his minor son-Yadurao alias Baburao-for one-third share in the joint family property. He joined Baburao Balwantrao as a party to this suit. He valued his one-third share at about Rs. 9,79,000. Baburao died in June 1913 leaving a minor widow, Sonubai. An application was made on her behalf by her father, Keshav Sambhajirao, in August 1913, to bring her on the record as the legal representative of her husband and to allow her to continue the suit. The learned Subordinate Judge held that the right to sue did not survive and that the suit abated, and ordered accordingly, on the 10th of September 1913, It appears, however, that she was brought on the record in Gangaram's suit as the legal representative of her deceased husband in which Baburao was defendant No. 2. Sonubai's father filed Appeal No. 158 of 1914 in forma pauperis in this Court against the abatement, treating it as a decree, through Mr. Vidhvans, a Vakil of this Court. The claim was valued at about Rs. 18,72,00, He also filed application No. 288 of 1913 under the Extraordinary Jurisdiction of this Court against the same order, through the same Vakil. This was intended apparently to meet the possible objection that the order of abatement was not appealable as a decree or an order. Mr. Vidhvans died in May 1915. Thereafter a notice of his death was served upon the next friend of Sonubai. But he did not appear, and took no steps to prosecute the appeal or the application. On the 28th February 1916 my learned brother Batchelor and I dismissed the appeal for default under Order XLI, Rule 17. Neither party appeared at the time. The application also was rejected for default. Sonubai attained majority on the 21st February 1919, when she completed her 18th year. She made the present application (No. 302 of 1919), on the 11th March 1919, to discharge the order dismissing the appeal for default, and a similar application (No. 303 of 1919) to discharge the order rejecting the application under the Extraordinary Jurisdiction for default on the same day.
2. In support of these applications it is alleged by Sonubai that her father is an old man, who has been insane for nearly five years, that he was not in a position to act for her as her next friend or guardian on the record at the date of the order made by this Court or at the date when the notice of the death of Mr. Vidhvans was served upon him. Some affidavits have been filed in support of her applications. The applications are opposed by Krishnarao's minor son Shivajirao, Krishnarao having died during the interval. The minor son of Krishnarao is represented by his mother and guardian Banubai on the record. It is asserted on her behalf that Sonubai's father was competent to act and did act in Gangaram's suit as the guardian of Sonubai.
3. I have not referred to the allegation in Sonubai's petitions as to the interest and conduct of the alienees from Baburao with reference to the estate and the litigation relating to the estate. It is not necessary to do so for the purpose of these applications. It may be mentioned that Gangaram's suit, after certain proceedings, was finally decided only in April last. It is unnecessary in this application to go into the reasons of this delay. But the decree in the suit is now under appeal, preferred to this Court by Sonubai. The trial Court in that suit has held that Sonubai is debarred from claiming the share of her husband in consequence of the order of abatement in Baburao'a suit.
4. On the facts stated above, we have to consider whether a case is made out for discharging the orders made by this Court on, the 28th February 1016.
5. On behalf of the applicant it is urged as a preliminary objection that the application is barred by limitation under Article 168 of the Indian Limitation Act, and that the minority of Sonubai is not a ground for not giving effect to the provisions of this Article, as such an application is not within the scope of a 6 of the Act. It is urged that in spite of her minority the present application is barred, as it is made long after the date of the dismissal. It seems to me that Article 168 applies to an application for the re-admission of an appeal under Order XLI Rule 19 under which, if sufficient cause is shown for default, the Court is bound to re-admit the appeal. Such an application is outside the terms of Section 6 and the minority of Sonubai is no answer to the plea of limitation. I am of opinion that the preliminary objection would be good if the powers of the Court to re-admit the appeal were confined only to Rule 19 of Order XLI and I would be bound to give effect to it. But if Rule 19 does not exhaust the powers of the Court to re-admit an appeal or an application dismissed for default, and if it is open to the Court to deal with these applications under Section 151 of the Code, and to make an order to that effect for the ends of justice or to prevent abuse of the process of the Court, the preliminary I objection cannot succeed, as the period of limitation will have no application to the exercise of such powers. The delay would undoubtedly be an element to be considered in exercising the powers under the section which, in the very nature of things, ought to be sparingly exercised. But the inherent powers of the Court would be exercisable without any reference to the period of limitation fixed for applications to re-admit appeals or to restore any other proceeding dismissed for default.
6. The questions, therefore, are whether it is open to this Court to make an order re-admitting the appeal and the application in the exercise of its inherent powers, and whether the facts brought to our notice render it necessary to make such an order for the ends of justice.
7. As regards the first question I am of opinion that the Court has such a power. The provisions of Rule 19 are not exhaustive on the point. Under that rule the Court is bound to re-admit the appeal if sufficient cause is shown for the default, without any reference to the merits of the appeal. The inherent powers of the Court to discharge an order made for default depend upon somewhat different considerations. The corresponding provision in the Code of 1882 has been interpreted by Bhashyam Ayyangar J. in that sense in Somayya v. Subbammam I.L.R. (1903) Mad. 599. In Lalta Prasad v. Ram Karan I.L.R. (1912) All. 436 the Court took the same view as to the meaning and scope of Order IX, Rule 9. It is also clear that a minor on attaining majority can sue to have any decree against him set aside on the ground of fraud or negligence on the part of his next friend or guardian as the observations of Farran J. in Cursandas Natha v. Ladkavahu I.L.R. (1895) Bom. 571. show. In Lalla Sheo Churn Lal v. Ramandan Dobey I.L.R. (1894) Cal 8, a minor, on attaining majority, was allowed to sue on the same cause of action, in spite of an order dismissing his suit for default under Section 102 during his minority on similar grounds. When it is open to the minor to resort to that remedy I do not see why it should not be open to a Court to help the minor in an application to set aside the order made on default, if it be shown that the next friend or the guardian was unable to act or was negligent in the discharge of his duties. The reasoning in Lalla Sheo Churn Lal's case supports this view. It may be that under the circumstances of a particular case the Court may leave the minor to his remedy by way of suit in view of the necessity of testing the allegations as to negligence or fraud in the strict manner in which they could be tested in a suit. But I see no sufficient reason to hold that that is the only remedy and that the Court has no power to help the minor otherwise with reference to an order made in Consequence of the default of the next friend of the minor. The decisions in Ranee Birjobuttee v. Pertaub Sing (1860) 8M.I.A. 160 and Raja Debi Bakhsh Singh v. Habib Shah (1913) L.R. 151: 15 Bom L.R. 640 appear to me to support the view that in a proper case it is open to the Court to make an order re-admitting the appeal or the application in the exercise I of its inherent powers for the ends of justice.
8. The next question is whether the facts in this case demand that the power should be exercised in favour of the petitioner. The broad facts are that Baburao sued for his share in a large estate and died during the pendency of the suit. His widow was a minor then claiming to be entitled to his share on the ground that the severance of interest was effected daring her husband's life-time. Her lather as her next friend tried to put forward her rights, but failed in the lower Court. He appealed to this Court, but his pleader died and after the pleader's death he did not or could not take any steps to prosecute the appeal, On attaining majority Sonubai has applied to this Court, without losing any time, within a month after attaining majority, to allow her to prosecute the appeal. She points out that her father could not act as her next friend at the time when he received the notice of the pleader's death in November 1915 or thereabout owing to his demented condition, brought on probably by old age. On the materials before the Court the allegation as to his insanity could be neither accepted nor rejected without further inquiry. But whether on that ground or on any other ground, he failed to prosecute the appeal on behalf of his daughter, which affected her right to considerable property, worth about eighteen lacs of rupees according to the valuation in the appeal. In Gangaram's suit the one-third share is valued at about Rs. 9,79,000 (nine lacs and seventy nine thousand). The order of abatement may have the effect of negativing her right to such property completely. I do not say that it has such an effect. That will have to be considered in the appeal which she has filed in this Court from the decree in Gangaram's suit. At any rate the trial Court in that suit has taken that view, and the abatement may fairly be treated for the purpose of these applications as seriously jeopardizing her right to her husband's share in the property. In a matter of such importance, her next friend failed to act for his minor daughter. I do not think it could serve any useful purpose to delay the disposal of these applications by asking the lower Court to find en further evidence as to whether the allegation as to insanity is proved. It would largely be a matter of inference from his present condition as to whether in November 1915 he was insane as alleged by Sonubai. His failure to act seems to me to indicate-and must be taken under the circumstances of this case to indicate-either inability due to physical incapacity or negligence on his part to safeguard the interests of his daughter.
9. Looking broadly at the merits of the order of abatement, which it is permissible to take into account in determining the ' ends of justice', it is fair to say that if the appeal had been heard on the merits in February 1916, this Court would have been bound to consider the observations of their Lordships of the Privy Council in Suraj Narain v. Iqbal Narain I.L.R. (1912) All 80., decided in December 1912, in connection with the question of the severance of interests; and whatever may have been the accepted view in this Presidency then, it is not unreasonable to say that this Court might have-I do not say would have-taken the view which a Full Bench of the Madras High Court took in October 1915 in Soundararajan v. Arunachalam Chetty I.L.R. (1915) Mad. 159, F.B. as to the effect of these observations. At the same time I do not see any need or justification for rigorously excluding from our consideration the decisions of the Privy Council after February 1916, which may make the merits of the appeal appear stronger and clearer, in determining now what the ends of justice require. I do not desire to prejudge the merits of the appeal; but it is hardly possible and not fair to exclude what I may call the prima facie merits of the appeal from consideration in deciding whether for the ends of justice this Court should exercise the powers under Section 151 of the Code of Civil Procedure. On the other hand the re-admission of the appeal cannot prejudice the just rights of the opponent. I have not overlooked the fact, which has been pressed upon our attention by Mr. Bhandarkar that the opponent is a minor.
10. I am conscious that the inherent powers reserved under Section 151 should be sparingly exercised and only when a clear case is made out. After a careful consideration of all the circumstances I have come to the conclusion that for the ends of justice it is necessary to discharge the orders dismissing the appeal and the application, for default, to readmit the appeal and the application, and to allow the present petitioner to prosecute the same against the present opponent as the legal representative of the deceased Krishnarao. I would make the rules absolute and order accordingly.
11. Under the circumstances I would order the applicant Sonubai to pay the opponent's costs in both the applications.
12. In the view I have taken, it is needless to consider the suggestion that, if necessary, the applications may be treated as applications for review and that the delay may be excused under Section 5 of the Indian Limitation Act. The procedure appropriate for review would be different, and it is not essential to pursue this point further.
13. In this matter Mr. Bhandarkar for the respondent has taken a preliminary objection that the application is barred by Article 168 of Schedule I of the Indian Limitation Act 1908. The facts necessary in order to understand the position are as follows.
14. In 1911, one Baburao sued for partition and a share in a joint family estate. On June 10th 1913, during the pendency of that suit, Baburao died. His widow, who is now the applicant before us, was at that date a minor. On August 4, 1913, she applied to be placed on the record as heir of the deceased plaintiff. For the purposes of that application she was represented by her father in the capacity of next friend. Her application was dismissed on September 10, 1913 on the ground that the right to sue did not survive, and it was ordered that the suit should abate. From that order the next friend lodged an appeal in the High Court, and Mr. Vidhwans, a pleader of this v. Court, was appointed to conduct the appeal. Before the hearing Mr. Vidhwans died, and in accordance with the usual practice a notice was served on the next friend on November 4, 1915 directing him to appear, and stating that on failure the appeal would be dismissed for default. The appeal came on for hearing in due course on 28th February 1916 and neither side put in an appearance : it was accordingly dismissed under Order XLI, Rule 17, of the Code of Civil Procedure on that day. The applicant Crump J. attained majority on February 21, 1919, and, on March 11, 1919, ' she moved this Court under Order XLI, Rule 19, to re-admit the appeal.
15. If in such a case a minor is properly represented by a next friend it would ordinarily follow that an application to re-admit the appeal must be made within thirty days, the time allowed by Article 168 of Schedule II of the Indian Limitation Act. In this case, however, it is alleged at the outset that the next friend became insane about the year 1914. The allegation is supported by substantial affidavits, and it is necessary to consider the case on that basis.
16. Assuming the allegation of insanity to be well founded the position is that a minor litigant has been prevented from appealing to this Court by reason of the fact that her next friend was of unsound mind, and her claim to a large estate has been allowed to go by default. The result would be deplorable were there no remedy, but the hardship is no ground for interfereing unless interference is warranted by the powers of the Court.
17. In my opinion a person who is of unsound mind cannot act as next friend. This is indeed clearly laid down by Order XXXII Rule 4, of the Code of Civil Procedure. But it is urged that where a next friend becomes insane after appointment the remedy is to move the Court for his removal under Rule 9 of that Order and that unless and until this is done the minor is bound by the acts of the next friend as though he were of sound mind. I am unable to accede to this contention. In my opinion a next friend who is of unsound mind is no next friend at all for he is not qualified to act. The case, therefore, falls within the scope of Order XXXII, Rule 5 and the order dismissing the appeal may be discharged on the ground that the minor was not represented by a next friend.
18. But even if this rule is not applicable the case would be one in which the Court ought, I think, to interfere ex debito justitiae and the inherent powers of the Court under Section 151 of the Code of Civil Procedure can very properly be applied to this case, The principles on which the Privy Council acted in Raja Debi Bakhsh Singh v. Habib Shah (1913) L.R. 40 IndAp 151 : 15 Bom, L, R. 640. are applicable. To rank the absence of a minor whose next friend is of unsound mind in the category of default is not very stateable. An order passed in these circumstances is a nullity.
19. But apart from the question of the insanity of the next friend which might in itself call for further enquiry beyond the affidavits or the record the circumstances disclose negligence so gross, whether arising from insanity or not, as to be in itself a sufficient ground for avoiding the order. The facts speak for themselves, There is a very large estate at stake The refusal to place the minor on the record as heir of her husband has deprived her, or may deprive her, of that estate. I say 'may deprive her' for the exact effect of the order of abatement is not certain. That order was challenged by an appeal, and certainly there is at least an arguable case. That case would indubitably have been argued but for the unfortunate death of the pleader engaged. At this point the next friend became blind to his plain duty, and took no steps to appoint another pleader. A clearer case of the grossest negligence could hardly be found. It can hardly be doubted that where a minor is concerned the gross negligence of a next friend is a ground on which the avoidance of proceedings may be sought even where there is a statutory bar: cf. Lalla Sheo Churn Lai v. Ramnandan Dobey I L.R. (1894) Cal. 8. It is impossible to permit the estate of an infant to be lost in this way, and in my opinion the inherent powers of the Court are wide enough to enable us to make such orders as the interests of justice require. The orders proposed by my learned brother are, in my opinion, appropriate ex debito justitiae.