1. The appellants before this Court were defendants 1 and 2 in O. S. 60 of 1962 on the file of the Munsiff, Mandya. Respondent No. 1 who was the plaintiff, filed a suit for setting aside the decree passed in O. S. No. 3 of 1958 on the file of the same Court which was subsequently confirmed in appeal, R. A. No 77 of 1959, by the learned Civil Judge, Mandya. The first suit O. S. 3/58 had been filed by respondent-2, the second plaintiff as guardian of plaintiff-1, for partition and possession of the one-third share in the joint family properties. The plaintiff's case is that he is the son of Byregowda by his third wife. Byregowda and the appellants 1 and 2 in the first suit, were brothers and members of a joint family. For the sake of convenience, in this appeal, the parties will be referred to by their designation in O. S. 3 of 1958. The suit O. S. 3/58 filled on behalf of the plaintiff by his mother plaintiff-2 as his guardian was dismissed. The appeal filed against this order (R. A. 77/59) was also dismissed on 17-3-1960. The second suit, O. S. 60/62 was filed on 17-1-1962. In O. S. 60/62, the plaintiff prayed that as there was gross negligence on the part of his mother as guardian in conducting suit O. S. 3/58, the decree was not binding on him and should be set aside. The trial court held that there was no gross negligence on the part of plaintiff-2 in conducting the suit, and dismissed the second suit. In the appeal filed by the plaintiff, the learned Civil Judge, Mandya, set aside the order of the trial court in O. S. 60/62. The learned Civil Judge also set aside the decree in O. S. 3 of 1958 and the appellate order R. A. 77 of 1959 passed by the same court. He directed the learned Munsiff, Mandya, to restore the suit, O. S. 3/58, to his file and frame an additional issue throwing the burden on the defendants to prove non-access and dispose of the case according to law. It is this order passed by the learned Civil Judge, Mandya, that is being challenged in this second appeal
2. Sri Tarakaram, learned counsel appearing on behalf of the appellants (defendants 1 and 2) has contended that the learned Judge erred in holding that there was gross negligence on the part of the guardian of the plaintiff which justified the setting aside of the decree passed in O. S. 3/1958. He contends that the learned Civil Judge has mistaken the onus of proof with the burden of proof. He has practically reviewed the judgments in the previous case including that passed by his predecessor, i.e., the learned Civil Judge in R. A.77/57, which he is not entitled to do. Sri Tarakaram also argues that the learned Civil Judge failed to consider the material evidence in the case such as exhibit D-2, which has resulted in a wrong decision.
The learned counsel contends that in this case, no question of application of Section 112 of the evidence of Indian Evidence Act arises as this was not a case where the defendants admitted the marriage between plaintiff-2 and Byregowda. The defendants denied that plaintiff-2 was the wife of Byregowda and as such the question of the application of Section 112 of the Evidence Act did not arise in this case and the learned Civil Judge was wrong in thinking that there was gross negligence on the part of the guardian in not getting an issue framed in the case on this question.
3. Sri Javali, learned counsel appearing on behalf of the respondents, contends that there was negligence in the conduct of the case right from the initial stage itself. The first issue should have been: 'Was plaintiff-2 Mayamma the wife of Byregowda?'. Sri Javali has stressed the fact that in the course of the evidence, defendant-2 has admitted that plaintiff-2 was the wife of Byregowda. The argument of Sri Javeli is when once an important admission like this has been made, a fresh issue on the question of non-access, should have been framed. Once it was admitted that Mayamma was the wife of Byregowda Section 112 of the Evidence Act is attracted and this would be conclusive proof that the plaintiff was the son of Byregowda, unless the defendants prove affirmatively that the parties to the marriage had no access to each other at any time. The argument is that the burden of proof was wrongly cast on the plaintiff by the lower court. It was for the defendants to make out clearly the case of non-access. No proper pleas have been raised or put forward in the case and as there was no issue of non-access as per Section 112 of the Evidence Act, there was really no trial of the suit. Sri Javali also argues that the question whether there was gross negligence on the part of the guardian of the plaintiff is a question of fact depending upon the facts and circumstances of each case, and it is not a question of law and as such, this Court, in second appeal, cannot interfere with such finding.
4. Sri Javali has strongly relied on Venkateswarulu v. Venkatanarayana : 1SCR424 . In the said case, their Lordships of the Supreme Court have pointed out that the presumption which Section 112 of the Evidence Act contemplates is a conclusive presumption of law which can be displaced only by proof of non-access between the parties to the marriage. Access and non-access connote existence and non-existence of opportunities for martial intercourse. Sri Javali argues that the trial court totally failed to advert to Section 112 of the Evidence Act and wrongly cast the burden of the burden of proof on the plaintiff to prove that he was the son of Byregowda. Sri Tarakaram has pointed out that in the Supreme Court decision mentioned above, the fact that the parties were married was admitted and hence Section 112 was attracted to the facts of that case. Sri Tarakaram argues, the defendants in this case denied in their pleadings that there was a valid marriage between plaintiff-2 and Byregowda. Sri Tarakaram contends, simply because in cross-examination defendant-2 admitted that Mayamma was the wife of Byregowda, there was no need, after the evidence was recorded, to frame a fresh issue.
It was only an admission made by defendant-2. The courts decided the case bearing in mind this admission made by defendant-2 on the question whether the plaintiff was the son of Byregowda. Sri Tarakaram has also pointed out that the burden of proof never shifts and it is also for the plaintiff to prove his case. In this case, the plaintiff should have proved that Mayammma was the legally wedded wife of Byregowda and that the plaintiff was born to Byregowda during the subsistence of the marriage. The learned Civil Judge has mistaken the shifting of onus of proof to burden of proof. It may also be mentioned that in the very decision mentioned above, the Supreme Court has pointed out that non-access can be proved like any physical fact either by direct or circumstantial evidence which is relevant to the issue. In this case Sri Tarakaram has pointed out, the defendants have let in unimpeachable evidence to show that Mayamma deserted Byregowda in 1925 and thereafter, her whereabouts were not known. Exhibit D-2, the petition given by Byregowda to the District Magistrate stating that Mayamma had deserted him, clearly proves the version of the defendants that there was non-access. The plaintiff it may be mentioned was born on 1941, about 16 years after Mayamma had deserted Byregowda. In O. S. 3/58 the learned Munsiff has pointed out that the admissions made by plaintiff-2 Mayamma conclusively show that the first plaintiff was not the son of Byregowda.
Mayamma had admitted that she had been residing in Bangalore for 23 to 24 years and she was working during the period as a cooly in a factory. The trial court has observed that it is very difficult to believe that Byregowda, who was himself a man of affluent circumstances, would have left his young wife, who was his third wife at Bangalore and allowed her to live working as a cooly. The trial courts also held that the defendants had placed unimpeachable evidence to show that plaintiff-2 went away in the year 1925 and did not subsequently return and that Byregowda did not even know her whereabouts. While discussing the evidence, the learned Munsiff had observed as follows :--
'As contended by the defendants, deceased Byregowda had no access to his wife during this long period of 24 or 25 years. Under these circumstances I think the contention of defendants 1 and 2 that the I plaintiff was not the son of deceased Byregowda has to be upheld.'
Again at para 7, the trial court has observed as follows :--
'As already stated, the admission of the II plaintiff herself and the petition Ex. D-2 prove beyond doubt that the II plaintiff left the village more than 30 years back that subsequent to her leaving the village she had no access to Byregowda and that her two children including the I plaintiff were born subsequently.'
In this case, as already pointed out after recording the full evidence, the trial court came to the abovementioned conclusion that Mayamma left the village 30 years back and that Byregowda had no access to his wife during that long period. Their lordships of the Privy Council in Nand Kishwar Bux v. Gopal Bux of their judgment have observed as follows:
'Turning to the High Court's judgments it does not appear that the case was decided on the grounds of onus. As the learned chief justice observed, the question of onus of proof was of no great importance, because both sides have entered into evidence.'
Again in Lakshmana v. Venkateswaralu , Sir Madhavan Nair, J. has observed as follows:--
'What is called the burden of proof on the pleadings should not be confused with the burden of adducing evidence which is described as `shifting'. The burden of proof on the pleadings never shifts, it always remains constant. * *'
Then again at paragraph 44, their Lordships of the Privy Council have observed as follows:--
'This section shows that the initial burden of proving a prima facie case in his favour is cast on the plaintiff; when he gives such evidence as will support a prima facie case, the onus shifts on to the defendant to adduce rebutting evidence to meet the case made out by the plaintiff. As the case continues to develop, the onus may shift back again to the plaintiff. It is not easy to decide at what particular stage in the course of the evidence the onus shifts from one side to the other. When after the entire evidence is adduced the tribunal feels it cannot make up its mind as to which of the version is true, it will hold that the party on whom the burden lies has not discharged the burden; but if it has on the evidence no difficulty in arriving at a definite conclusion, then the burden of proof on the pleadings recedes into the background.'
5. Keeping the abovementioned principles laid down by their Lordships in view, I will now examine whether there has been gross negligence on the part of the guardian justifying the setting aside of the decree passed in O. S. 3/58. The contention of Sri Javali is that after the admission made by defendant 2 in the course of his cross-examination that Mayamma was the wife of Byregowda the guardian should have insisted that a fresh issue about non-access should have been framed and it should have been brought to the notice of the court that the burden of providing this issue was on the defendants and not on the plaintiff. It is contended that failure on the part of the guardian to do so has resulted in a wrong decision of the case. Sri Javali has relied on Narayana Nambooripad v. Gopalan Nair : AIR1960Ker367 wherein it has been stated that a minor can avoid a decree passed against him on the ground of gross negligence of the guardian ad litem even if the minor had not succeeded in proving fraud and collusion on the part of the guardian. The right of a minor to avoid a decree obtained against him on account of the gross negligence of his guardian ad litem is a substantive right and not a mere matter of procedure and does not depend on any rule of evidence. But the very same decision points out that the negligence of the guardian in order to be a good ground for the avoidance of a decree must be of such character as to justify the inference that the minor's interests were not at all protected and in substance though not in form the minor went unrepresented in the trial court.
6. Here, the point to be remembered is that plaintiff-2 the guardian of the minor plaintiff-1 was an illiterate woman and a cooly. When she filed a suit on behalf of her minor son, she entrusted the conduct of the proceedings to a qualified lawyer. In the very nature of things, she cannot be expected to know what are the issues arising in the case and whether fresh issues should be framed after the recording of the evidence. In filing a suit, all that she can be expected to do is to engage a qualified lawyer. If there is any negligence on the part of the lawyer in the conduct of the suit, can it be said that the guardian of the minor is grossly negligent in the conduct of the suit? In Daiva Ammmal v. Selvaramanuja Nayakar : AIR1936Mad479 Madhavan Nair, J. as he then was, speaking for the Bench, in a similar case has observed at page 485 as follows:
'We are prepared to assume that the a special aspect of the question of non-liability now presented before us escaped the notice of the lawyer who conducted the case. But the question is whether the guardian who has taken all the necessary steps to conduct the case properly and has entrusted the case to a lawyer can be said to be grossly negligent on account of the lawyer's failure to raise a legal point in defence which may well have been raised by him. It is not denied that the lawyer engaged was sufficiently competent to conduct the case. It is no suggested that there was any collusion between the lawyer and the plaintiff or that he was in any other way remiss in conducting the case. It is not proved that the lawyer was not provided with sufficient funds to conduct the case. In these circumstances, is it reasonable to hold that the guardian has been grossly negligent in the conduct of the case if the lawyer fails to raise a point of law which may well have been raised by him? We think no. It was observed in (1883) 22 Ch. D. 727 that a trustee is bound to conduct the business of trust in the same way as an ordinary prudent man of business conducts his own and has no further obligation. In (1889) 42 Ch. D. 674 it was pointed out that a trustee may select solicitors and agents and so long as he selects persons properly qualified he cannot be made responsible for their intelligence and honesty. We think the same may be said about the guardian of a minor also.'
7. In Sriramamurthy v. Official Receiver Krishna, AIR 1957 Andh Pra 692, a bench of the Andhra Pradesh High Court has held that if the next friend or guardian ad litem had been guilty of gross dereliction of duty, that is to say if he had neglected to do what was plainly his duty, or did or omitted to do something which no man of common honesty and ordinary prudence would have done or omitted, then the minor would have a right to sue to set aside an adverse decision attributable to the guardian's breach of duty. The negligence of the guardian must be so serious or of such character as to justify the inference that the minor's interests were not at all protected and in substance, though not in form, the minor went unrepresented in the trial court.
8. A Full Bench of the Allahabad High Court in Mt. Siraj Fatma v. Mahmood Ali : AIR1932All293 has laid down that the negligence in order to be a good ground for the avoidance of a decree must be of such a nature as to justify the inference that the minor's interests were not at all protected and therefore, he was not properly represented. The negligence must be so gross as to amount a clear violation of the duty cast upon the guardian.
9. Bearing these principles in mind, I am clearly of opinion that in the instant case, the lower appellate court erred in law in coming to the conclusion that there was gross dereliction of duty on the part of the guardian to justify the setting aside of the decree in O. S. 3 of 1958.
10. Sri Javali has contended that the question whether there has been gross negligence is a question of fact and is not a question of law and would not come within the purview of Section 100 C.P.C. to enable this court to interfere in second appeal. He has strongly relied on Ramappa v. Bojjappa : 2SCR673 wherein their Lordships have pointed out that sufficiency or adequacy of evidence to support a finding of fact is a matter for decision of the court of facts and cannot be agitated in a second appeal. But, here the question for consideration is whether on the admitted facts, what has been done amounts to gross negligence in law on part of the guardian. The proper legal effect of proved facts is essentially a question of law and the High Court is entitled to interfere in second appeal. What is the legal conclusion to be drawn from the facts and whether in law gross negligence on the part of the guardian has been made out, are, in my opinion, questions of law. In Mulla's Code of Civil Procedure, 13th edition by T. L. Venkatarama Ayyar, at page 439, para 5, in its commentary under Section 100 it is stated as follows:
'Though a second appeal does not lie from a finding of fact, yet where a legal conclusion is drawn from the finding a second appeal will lie under clause (a) of the section on the ground that the legal conclusion was erroneous. Thus the question whether possession is adverse or not is often one simple fact, but it may also be a conclusion of law or a mixed question of law and fact. xx xx
'The facts found (by the lower appellate court) need not be questioned. It is the soundness of the conclusions from them that is in question and this is a matter of law.' As stated by their Lordships of the Privy Council in another case 'the proper legal effect of a proved fact is essentially a question of law', and the High Court is, therefor, entitled to interfere in second appeal.'
I am therefore clearly of opinion that the question whether on the admitted facts gross negligence on the part of the guardian is made out, is a question of law and this court can interfere with the findings of the lower appellate court under section 100, C.P.C.
11. In the result, for the reasons mentioned above, I am of opinion that the order of the learned Civil Judge is contrary to law and has to be set aside and I do so accordingly and allow the appeal and restore the decree of the trial court. In the circumstances of the case, there will be no order as to costs.
12. Appeal allowed