D.N. Roy, J.
1. This is a defendants' appeal arising out of a judgment dated 22-11-1946 passed by the learned Addl. Civil Judge of Banaras by which a decree was granted to the plaintiffs-respondents setting aside the final decree dated 15-1-1944 passed in partition suit No. 466 of 1939 of the Court of the Munsif Haveli, Banaras, on the ground of gross negligence on the part of the guardian ad litem of the minor plaintiffs..
The parties to the suit are members of the same family. Defendants Nos. 1 and 2, namely, Murli Manohar and Govind Lal, instituted the suit No. 466 of 1939 against the present plaintiffs and defendants Nos. 3 to 15 for partition of the property specified in Schedule A of the present plaint which admittedly was joint ancestral property of the parties.
There was another property which was specified in Schedule B of the present plaint. This property was not included by the plaintiffs in the earlier suit aforesaid. In that case natural guardians of the present plaintiffs who were then minors refused to act as their guardian-ad-litem and Sri Chhail Beharilal Verma a pleader of the Court was appointed their guardian-ad-litem.
The defendants pleaded in that suit that the property specified in Schedule B was also joint ancestral property and should be brought into hotch pot for purposes of partition. The trial Court framed issue No. 6 on that point which was to the following effect:
'Whether the property specified in the written statement and under issue is property of the joint family of the parties? If so, how does the failure on the part of the plaintiffs to leave that property out of suit affect the suit?'
2. The trial Court found on that issue that this property was joint family property and was liable to be partitioned. The trial Court therefore by judgment and preliminary decree dated 6-12-1940 directed that a preliminary decree for partition of l/6th share of the plaintiffs and of an equal share of the defendants Nos. 5 and 6 in the property detailed at the foot of the plaint (with the exception of houses Nos. 241, 251, 243, 243/1 and 244) find also in the six shops situate in Mauza Sheodaspur be passed. Certain further directions were given under the preliminary decree with which we are not concerned.
It was the 'property in Sheodaspur which was the subject of contention under issue No. 6 aforesaid. As against the judgment and decree of 6-12-1940 two appeals were preferred by different parties before the District Judge of Banaras. Both the appeals were dismissed by the Addl. Civil Judge on 21-9-1940 and the decree of the trial Court was affirmed.
On 31-1-1943 Murli Manohar and Covind Lal applied in the Court of the Munsif, Havali tu get a final decree prepared in pursuance of, and in accordance with, the preliminary decree. In that proceeding no notice was issued to the present plaintiffs or to the other defendants Nos. 3 to 15. The Amin was called upon to prepare Kuras for the preparation of the final decree.
The Amin submitted a report on 9-11-1943. Certain objections were taken against it by the then plaintiffs and by defendants Nos. 5 and 6 but some of them withdrew their objections subsequently. Defendants 1 and 3 also filed an objection against the Amin's report. Their objection was twofold, namely that the Amin had overvalued the property described as bungalow No. 8 within thecantonment of Banaras by valuing the site as a whole which belonged to the Government and in which the parties had no proprietary title; and, secondly, that these shops stood over plot No. 1 of Sheodaspur and plot No. 1 had already been partitioned by the revenue Court.
Learned Munsif by his order dated 18-11-1944repelled the two objections stated above holding that the property had not been overvalued and that the shops at Sheodaspur could not be partitioned in the present suit because they stood over land which had already been partitioned by the revenue Court. The learned Munsif was of the view that what was contained in the original judgment of the Court and in the preliminary decree was a direction to the effect that
'these shops could be partitioned if it was found that these shops were standing in the abadi land and not in plot No, 1 of Sheodaspur.'
The Munsif therefore by his final decree dated 15-l-1944 affirmed the plan and report prepared by the Amin with certain modifications in regard to the amount which was to be paid to defendants Nos. 5 and 6. After the decree aforesaid was passed, two applications were presented before the Munsif, one by the present plaintiffs-minors and the other by Misrilal the father of the present plaintiffs Nos. 5 and 6 for the setting aside of the final decree dated 15-1-1944 and for restoring the case to file on its original number and for the rehearing of the Amin's report after allowing these parties the opportunity to raise objections against the same.
Their contention was that they had no noticeof the proceedings of final partition, that the Amin had prepared the lots behind the back of the parties without notice to them, that they had no opportunity to file objections and that the bungalow in Banaras Cantonment was overvalued and the shopssituate in Sheodaspur had been completely left out by him. These two applications were opposed by the then plaintiffs.
The applications were dismissed on 4-11-1944 on the ground that the guardian-ad-litem of the minor defendants and the other defendants had full knowledge of the proceedings for preparation of the final decree. Against the order of 4-11-1944 the guardian ad litem of defendants Nos. 8, 9, 10, 11, 12, 15, 16 and 17 who are now the present plaintiffs did not prefer an appeal.
An appeal was however preferred by Misri Lal against that order before the District Judge of Banaras. The District Judge dismissed the appeal on 1-2-1945 holding that the orders were passed by the lower Court after informing the parties' counsel and giving them full opportunity to be heard
The minors having failed to obtain proper redress in the proceedings aforesaid instituted the present suit on 26-2-1946 by which they assailed the final decree on the ground of gross negligence on the part of their guardian in the suit. The negligence was said to exist in respect of two matters, namely, firstly, that six of the shops situate in village Sheodaspur which were covered by the preliminary decree as property fit for partition were not included in the final decree and the guardian raised no objection about it; and, secondly, that the land over which bungalow No. 8 situate in Cantonment Banaras stood was wrongly valued.
The decree was assailed on two other grounds which were stated in grounds Nos. C and D; but these grounds were abandoned at the trial by the statement of the pleader of the plaintiffs.
3. In paragraphs 10 and 11 of the present plaint the following averments were made :
'10. Babu Chhail Behari Guardian of the plaintiffs had not filed any objection in Court in respect of the facts mentioned above nor did he prefer any appeal against the order passed by the Court of Munsif Havali, Banaras, or the decree :
11. The report submitted by the Amin and the proceedings relating to the partition are prejudicial to the interest of the plaintiffs. But the guardian aforesaid did not bring them to the notice of the Court and did not safeguard the rights of plaintiffs while looking after the said case, rather committed a serious negligence while looking after the case. For this reason the final decree passed by the Court of Munsif, Havali, Banaras on 15-1-1944 is invalid and ineffectual against the rights of the plaintiffs and not binding.'
The present suit was resisted by Murli Manohar, Govind Lal, Bhola Nath and Kashi Nath defendants Nos. 1, 2, 7 and 8. They contended that Babu Chhail Behari Lal the guardian appointed by the Court protected the interests of the minors to the fullest extent and that the charges of gross negligence were absolutely unfounded. They further contended that as the report of the Amin was quite proper Babu Chhail Behari Lal did not take any objection in respect thereof and that the other defendants raised objections in order to cause delay in the preparation of the final decree.
It was not contended by these defendants in their written statement that the objection which was raised by the other defendants against the report of the Amin was an objection which, in the circumstances of the case, should be treated as an objection on behalf of the minors as well and that since that objection was prosecuted by the other defendants, the minor defendants must be deemed to have been effectively represented by them, or that, at any rate, their interests were sufficiently safeguarded and looked after by them when the objection was heard and dismissed.
We have seen the terms of the preliminary decree and we have also perused the order dated 15-1-1944 passed by the Munsif when the final decree was passed. The preliminary decree dated 6-12-1940 leaves no manner of doubt that the six shops situate in Sheodaspur were brought into the notch pot and they were directed to be partitioned along with the other property specified in the plaint.
The judgment of the Munsif passed on 6-12-1940 unequivocally found that the said shops are joint family property and had not been the subject of partition till then and were fit to be partitioned in the present suit. The learned Munsif fell into an error at the stage of the final decree when he acted upon the report of the Amin by which the Amin stated that these shops stood over plot No. 1 and not in the abadi and that plot No. 1 had already been partitioned.
It was not open to the learned Munsif to go behind the terms of the preliminary decree. The learned Munsif was wrong in construing the preliminary decree as a conditional decree. In the judgment of the Munsif dated 15-1-1944 the learned Munsif observed:
'Defendants 1 and 4 themselves brought these shops into the controversy and the Court held that these shops could be partitioned if it was found that these shops were in the abadi and not in plot No. 1 of Sheodaspur.'
4. We have looked into the preliminary decree and we do not find that any such condition as stated above was attached to it.
5. The position therefore comes to this that a substantial item of property which was covered by the preliminary decree and which was sought to be partitioned along with other properties, has been left out of the Court altogether when the final decree was passed. This has seriously prejudiced the rights of the present plaintiffs who were then minors. The present plaintiffs were represented in that suit by Babu Chhail Behari Lal Vakil who was their guardian ad litem.
Chhail Behari Lal failed to raise any objection at the time of the preparation of the final decree and he did not prefer any appeal against the final decree after it was prepared. Under circumstances such as these there can be no two opinions that there was gross negligence on the part of the guardian ad litem and he never took care to safeguard the interests of the minors.
The minors' interests could not have, been represented or effectively safeguarded by Misri Lai or by the other major defendants at the trial of the original suit. Misri Lal and the other major members had refused to act as guardians of the minors. They could not be appointed as guardians ad litem without their consent in view of Order 23, Rule 4 of the Code of Civil Procedure as framed by this High Court. The decree therefore passed against the minors having been vitiated by gross negligence of the guardians can be set aside by a separate suit.
6. A Full Bench of this Court in Rameshwar Prasad v. Ram Chandra Sharma : AIR1951All372 has held that a decree obtained against a minor where the guardian appointed by the Court has been guilty of gross negligence is not void but is merely voidable.
7. In Brij Raj v. Ram Samp : AIR1926All36 a Bench of this Court has held that gross negligence which may be interpreted as culpable neglect of the interests of the minor defendants, on the part of the guardian ad litem would entitle the minor to the avoidance of proceedings undertaken; but it is not every kind of negligence nor every degree of negligence which will render the proceedings otherwise legal and proper liable to be reopened.
It must be such negligence as leads to the loss of a right which, it the suit had been resisted with due care, must have been successfully asserted. It is not sufficient to show that the guardian ad litem absented himself; it must also be proved that there was an available good ground of defence which was not put forward owing to the default of guardian ad litem to appear at the trial.
An omission to defend or raise a particular plea or call certain evidence might in the circumstances of a particular case amount to negligence or to a breach of duty, which was owing by theguardian to the infant in that case. In different circumstances such an omission might not amount to negligence. The thing to be regarded in each circumstance is the interest of the minor.
8. The view consistently held by this Court, and we may in this connection only quote the Full Bench case of Siraj Fatma v. Mahmud Ali : AIR1932All293 , has been that the right of the minor to avoid a decree passed against him on the ground of negligence of his guardian ad litem is a substantive right well recognised in English law and equally applicable in India and such right of the minor either to ignore or to challenge the propriety of the order passed against him is undoubtedly one of civil nature and falls within the purview of Section 9 of the Code of Civil Procedure.
It has further been held that there is nothing in Section 44 of the Evidence Act which precludes the plaintiffs in such a suit from proving that the judgment previously obtained had been obtained on account of negligence of the guardian ad litem, that the Evidence Act does not purport to destroy any substantive right that may exist independently of that Act, that Section 44 is merely permissive and not prohibitive; that it allows a party to prove fraud and collusion in order to avoid a judgment or order, but it does not go further to prevent him from adducing evidence of negligence of his guardian, if he has a substantive right to prove such negligence and thereby to avoid the judgment.
9. A review of all available authorities on the subject has been made by the Full Bench of the Patna High Court in Kamakshya Narain Singh v. Baldeo Sahai : AIR1950Pat97 and the result of that review has been that with the exception of the Bombay High Court in the Full Bench case of Krishnadas Padmanabhrao v. Vithoba Annappa, AIR 1939 Bom 66 it has been laid down by all the High Courts that a minor can avoid a decree passed against him on the ground of gross negligence on the part of the guardian ad litem.
It will be unnecessary for us to review all those decisions here because we are bound by the Full Bench decision of our own Court on this point. We may however say that we agree with the criticism, of the Full Bench of the Bombay High Court which has been made by the Full Bench of the Patna High Court in the above noted case.
10. Learned counsel for the appellant has relied upon the observation of the Privy Council in the case of T. Venkata Seshayya v. T. Kotiswara Rao . The relevant observations made by Lord Thankerton in that case run as follows :
'In both Courts the principles relating to negligent conduct of a former litigation by a guardian in the name of a minor were accepted as applicable to the case of parties litigating on behalf of a public interest, as in the present case. The cases illustrative of this principle, which are referred to in the judgments, are Lalla Sheo Churn Lal v. Ramnandan Dobey, ILR 22 Cal 8; Punnayyah v. Virannn, ILR 45 Mad 425: (AIR 1922 Mad 273); Karri Bapanna v. Yerramma, 45 Mad LJ 324: (AIR 1923 Mad 718); and Ananda Rao v. Appa Rao : AIR1925Mad258 . Their Lordships are not concerned to discuss the validity of these decisions, or the elusive distinction between negligence and gross negligence, as they are satisfied that the principle involved in these cases is not applicable to such cases as the present one.
The protection of minors against the negligent actings of their guardians is a special one, and in these cases the plaintiff in the second suit was also the plaintiff in the former suit, although in the earlier suit he or she had sued through a guardian. Their Lordships would only add that they are not prepared to agree with the view expressed in Kari Bapanna's case 45 Mad LJ 324: (AIR 1923 Mad 718) that the principle of Section 44 of the Indian Evidence Act can be extended to cases of gross negligence.
The provisions of Section 11 of the Civil Procedure Code are mandatory, and the ordinary litigant who claims under one of the parties to the former suit can only avoid its provisions by taking advantage of Section 44 of the Evidence Act which defines with precision the grounds of such avoidance as fraud or collusion. It is not for the Court to treat negligence, or gross negligence, as fraud or collusion, unless fraud or collusion is the proper inference from the facts.'
11. It is clear that their Lordships have been careful to express no opinion with regard to the validity of the decisions cited excepting one i.e. Karri Bapanna's case, 45 Mad LJ 324: (AIR 1923 Mad 718) that the Judges were wrong in extending Section 44 of the Evidence Act to cases of gross negligence. But the Indian decisions taken as a whole do not place the minor's right of suit upon the provisions of Section 44 but on a substantive right which Section 44 cannot affect.
There is therefore no question of extending the principles of Section 44 to cases of gross negligence. The Privy Council decision on which reliance has been placed by learned counsel for the appellant does not therefore help the appellants. In the present case we are clear that the guardian ad litem, did not merely absent himself when the proceedings in the final decree were taken, but he failed to prefer an appeal against the final decree which seriously prejudiced the rights of the minors.
The guardian could have successfully brought before the trial Court, or at any rate before the lower appellate Court, that a substantial property which was part of the preliminary decree had been left out in the final decree without just cause, specially in the circumstances where the preliminary decree had been confirmed by the appellate Court.
There was available a good ground of defence at the time of the preparation of the final decree which was not put forward owing to the default of the guardian ad litem to appear at the stage of the final decree or at the stage when an appeal could have been preferred against it. This was a negligence so gross and palpable as led to the loss of a right.
If the proceedings had been resisted with due care the right should have been successfully asserted and enforced. Consequently we are of opinion that the decision of the Court below on this point is correct.
12. It would be unnecessary for us to enter into the other point, namely as to whether the site of the bungalow No. 8 in the cantonment of Benaras should have been valued in the manner that it was valued by the Amin because that question is no longer necessary to be decided for purposes of this appeal once we agree with the Court below that the final decree ought to be set aside on the ground of gross negligence on the part of the guardian ad litem.
13. In the result the appeal fails and is dismissed with costs.