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Jang Bahadur Singh Vs. Ram Nihore Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 226 of 1970
Judge
Reported inAIR1975All463
ActsCode of Civil Procedure (CPC) , 1908 - Order 32, Rule 3
AppellantJang Bahadur Singh
RespondentRam Nihore Singh and ors.
Appellant AdvocateS.K. Bhargava, Adv.
Respondent AdvocateB.M.N. Kacher, ;R.N. Shukla and ;B.L. Shukla, Advs.
DispositionAppeal dismissed
Excerpt:
civil - suit against minor - order 32 rule 3 of code of civil procedure, 1908 - suit for partition filed against minor posing him as major in plaint - decree passed - held, decree voidable at instance of minor. - - the appellate court below on reappraisal of the evidence on record found that the plaintiff was minor on the date of the institution of the partition suit as well as on the dates of the preliminary and final decrees and the alleged compromise......bahadur singh, defendant no. 1 filed a suit for partition of the plots in question against ram nihore singh, santu singh and gram sabha claiming that he had half share in the said property. ram nihore singh was described in that suit as a major. the suit was decreed ex parte on 19-3-64. thereafter jang bahadur singh filed an application on 16-5-64 for preparation of a final decree. this decree was also prepared ex parte. thereafter santu singh filed an application under order ix. rule 13, c.p.c. on 17-8-74 for setting aside these ex parte preliminary and final decrees. ram. nihore singh also filed an application on 15-9-74 for setting aside that decree alleging that he was a minor and that service of summons had not been effected on him. it appears that those applications were.....
Judgment:

T.S. Misra, J.

1. This appeal by defendant No. 1 arises in the following circumstances.

2. Jang Bahadur Singh, defendant No. 1 filed a suit for partition of the plots in question against Ram Nihore Singh, Santu Singh and Gram Sabha claiming that he had half share in the said property. Ram Nihore Singh was described in that suit as a major. The suit was decreed ex parte on 19-3-64. Thereafter Jang Bahadur Singh filed an application on 16-5-64 for preparation of a final decree. This decree was also prepared ex parte. Thereafter Santu Singh filed an application under Order IX. Rule 13, C.P.C. on 17-8-74 for setting aside these ex parte preliminary and final decrees. Ram. Nihore Singh also filed an application on 15-9-74 for setting aside that decree alleging that he was a minor and that service of summons had not been effected on him. It appears that those applications were decided on the basis of a compromise and ex parte decrees were maintained. Ram Nihore Singh then filed the suit which has given rise to this appeal with the allegations that when the aforesaid partition suit was instituted and the decrees 'both preliminary and final were passed and the applications under Order IX, Rule 13, C.P.C. were disposed of he was a minor and that the said decrees were obtained fraudulently by Jang Bahadur Singh by describing him as major though he was a minor.

3. The suit was contested by defendant No. 1 alleging that Ram Nihore Singh was not a minor when the said partition suit was instituted, and that he had not practised any fraud on the plaintiff or on the court. He also challenged thejurisdiction of the civil court to entertain the suit.

4. The trial court held that the civil court had jurisdiction to try the suit. It also held that Ram Nihore Singh was a minor when the partition suit was instituted and the preliminary and final decrees were passed. It, therefore, decreed the suit and cancelled the decree passed in the said partition suit.

5. Against that decision an appeal was preferred by Jang Bahadur Singh. The appellate court below on reappraisal of the evidence on record found that the plaintiff was minor on the date of the institution of the partition suit as well as on the dates of the preliminary and final decrees and the alleged compromise. The appellate court below also agreed with the trial court that the civil court had jurisdiction to entertain and try the suit for cancellation of the aforesaid partition decree The appeal was therefore dismissed.

6. Jang Bahadur Singh has now come up in second appeal to this Court.

7. For the appellant the sole point ursed before me was that the civil court had no jurisdiction to try the suit. The submission was that as the decree was a nullity having 'been passed against a minor. Ram Nihore Singh could ignore it and file a suit for declaration of his title in the land in dispute and for possession thereof in the revenue court. I find no merit in this contention. Ram Nihore Singh was shown as aged about 22 years in the said partition suit by Jang Bahadur Singh He was not described as a minor. In fact, he was described as a major person. The concurrent finding of the courts below, however, is that Rani Nihore Singh was a minor on the date of the institution of the partition suit; that he was also a minor when the preliminary and final decrees were passed in that suit and also when the alleged compromise was made in the proceedings commenced under Order IX, Rule 13. C.P.C. The plaintiff thus obviously practised fraud on the court by describing a minor person as major one and obtaining a decree against him. Such a decree having been obtainedby fraud was, therefore, voidable. The appellate court below has observed that as the decree was obtained against a minor it was void ab initio. It cannot be disputed that a decree obtained against a minor, described as such in the plaint hut not represented by a guardian ad litem in the suit is void. But, if a decree is obtained against a person describing him as major that decree would 'be voidable at his instance by establishing that the decree-holder had practised fraud by describing him as major, though in fact he was a minor. A decree obtained by fraud being voidable could be got cancelled or adjudged void without seeking a relief for a mere declaration of title and the suit would be cognizable by the civil court inasmuch as the decree in question would remain binding on the parties concerned, as long as the same is not adjudged void and cancelled. To have a document adjudged void or voidable is also provided under Section 31 of the Specific Relief Act and the unchallenged existence of such a document can cause serious difficulty to the plaintiff in establishing his title to the Land in question. The plaintiff had also alleged that the proceedings under Order IX, Rule 13, C.P.C. were brought to an end by fraudulent means. It is settled law that where the consent decree to which the plaintiff was a party, was alleged to be void on the ground that the consent was obtained by coercion, undue influence or fraud, the decree would be voidable and the cancellation of the same would be a condition precedent before any relief could be granted in the suit to the plaintiff.

8. The revenue court was obviously not competent to grant a relief for cancellation of such a decree. Both the courts below were, therefore, correct in holding that the civil court had jurisdiction to try the suit.

9. No other point was pressed.

10. In the result the appeal fails and is dismissed with costs. Stay order dated 18-8-1970 is vacated.


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