1. This litigation has its origin in a deed of sale executed on the 30th of September, 1914, by one Sita Ram and his mother Mt. Parbati in favour of Haji Muhammad Ghafoor Bakhsh, by which the executants purported to convey certain shares in kasba Ujhani and mauza Mahona for a sum of Rs. 13,110 in order to satisfy certain debts and to meet personal expenses. It was represented in the document that the houses in which the vendors were living had been advertised for sale and had to be saved. It was stated moreover in the deed that Sita Ram was the only heir of Mt. Parbati and that he and she were competent to sell the property. Sita Ram further stated that he had an only son, Deo Dat who had given his consent to the sale. This was a false statement for it appears that he had no less than eight sons.
2. In the deed of sale the details of consideration are set out. It appears that there were a number of debts owing which the vendee undertook to pay, and amongst these was a decretal debt for Rs. 1,750 owing to one Kanhaiya Lal.
3. Ghafoor Bakhsh had some trouble in obtaining mutation on the basis of this document. It appears that the other sons of Sita Ram intervened and made trouble and all this resulted in criminal proceedings taken both by Ghafoor Bakhsh and by the sons of Sita Ram. Eventually in the early part of March 1915 (about 15th. March), Ghafoor Bakhsh got possession and mutation.
4. On the 30th September 1915, one Shankar Prasad filed a suit to pre-empt this sale. One of the defendants to this suit was Ghafoor Bakhsh and another was his wife Mt. Rashida Khatun. The reason why this lady was impleaded was that after the sale of the 30th of September 1914, and before the suit for pre-emption was brought she had purchased in execution of a decree a share of the Mahona property which had already been sold to her husband. We have already mentioned that there was a decree in favour of one Kanhaiya Lal for Rs. 1,750. It seems that after the execution of the sale-deed in his favour Ghafoor Bakhsh failed to pay off this debt and Kanhaiya Lal took out execution and brought the property which had been mortgaged to him to sale. It was purchased on the 21st January 1915, by Rashida Khatun for Rs. 792 and the sale was confirmed on the 13-4-1915. The pre-emption suit brought by Shankar Prasad was decreed on a compromise on the 3rd of January 1916. Under this decree Shankar Prasad was directed to pay Rs. 3,074-7-0 to Ghafoor Bakhsh and his wife; this sum representing all the consideration which had actually passed from these purchasers and including the Rs. 792 which Rashida. Khatun had paid for the property in the execution sale.
5. We now come to the 31st October 1917, on which date there were five sons of Sita Ram for the purpose of recovering the property. This suit was Suit No. 185 of 1917. Shankar Prasad, the pre-emptor died just after this suit was filed and his sons and grandsons were made defendants in his place. One of these sons was Bansidhar and two of Bansidhar's sons were Brij Lal and Lallu who were both minors and for purposes of the suit Bansidhar was appointed their guardian ad litem.
6. The sons of Sita Ram who were the plaintiffs' heirs alleged that the property sold on the 30th September 1914, was joint ancestral family property; that Sita Ram had no right to sell and that there was no legal necessity for the sale. The sons and grandsons of Shankar Prasad contested the claim on a variety of grounds. The case was fought out to a finish in the Court of the Subordinate Judge of Budaun who held that legal necessity had been proved to some extent. The result was that he gave a decree by which the defendants were to be entitled to retain possession of the property if they paid Rs. 2,094 into Court for payment to the plaintiffs. If they failed to do so then the plaintiffs were to be entitled to recover possession from the defendants on payment into Court of a sum of Rs. 7,845-8-3.
7. The plaintiffs appealed against this decree to this Court (F.A. 161 of 1919) and the defendants filed cross-objections. The hearing of the appeal occupied a considerable time and it was found necessary to call for a finding on an issue which had not been tried out by the Subordinate Judge, namely, whether the property in dispute or any part of it was joint ancestral family property.
8. After receipt of the finding this Court decided that out of the item of Ujhani property sold on the 30th September 1914, a 4 biswansi odd share was the separate property of Sita Ram having come to him by collateral inheritance and which he was therefore competent to sell without any interference on the part of his sons and grandsons.
9. The result was that this Court varied the decree of the trial Court. It dismissed the claim of the plaintiff's with respect to the 4-biswansi share just mentioned and for the rest declared that the plaintiffs could get possession on payment into Court within four months of Rs. 3,189-8-0 that being the sum in respect of which legal necessity was held to have been established.
10. It appears from the High Court judgment that another plea was raised on behalf of the defendants respondents at the stage of appeal with reference to the share in mauza Mahona which, as we have said above, was purchased in execution of Kanhaiya Lal's decree by Rashida Khatun on the 21st January 1915. It was pointed out that Kanhaiya Lal's decree for Rs. 1,750 had been obtained against Sita Ram and his sons and grandsons. The decree was a decree for sale on a mortgage and a copy of it was on the record bearing date 1st of September 1913. It was urged therefore that as this decree bound Sita Ram and his family and as the property had been sold in execution and had passed out of the family Sita Ram's sons could not recover it. This Court held that this claim might have been a good one had it been raised at the proper time, namely, by a plea in the written statement and had the plaintiffs been given notice of the plea. As this however had not been done this Court refused to go into the matter at the stage of the appeal. Taking the hint from the observation of the Court in its judgment in F.A. No. 161 of 1919 the present suit (Suit No. 40 of 1923) was launched by Brij Lal and Lallu, sons of Bansidhar, who were parties to the earlier litigation and by another minor son of Bansidhar who was not in existence when the earlier suit was brought.
11. The object of this suit is to obtain a declaration that the decree in the previous Suit No. 185 of 1917 is not binding on the plaintiffs, and in the plaint as filed that relief was sought on the following grounds:
12. It was alleged in paragraph 5 of the plaint that in the earlier suit the defendants second party (which includes Bansidhar, the father of the present plaintiffs) 'did not take necessary and legal objection with regard to the property sold by auction nor did they produce any evidence in respect thereof.' This plea relates to the share in Mahona which was purchased by Rashida Khatun in execution of Kanhaiya Lal's decree.
13. In paragraph 6 of the plaint it was alleged that the defendants second party (including Bansidhar) acting in collusion with the defendants first party (the sons and grandsons of Sita Ram) 'did not produce evidence in support of legal and family necessity although they were called upon to do so nor did they prove the necessity for the antecedent debts nor did they take any proceedings to safeguard the interests of the plaintiff's.'
14. In paragraph 7 it was pleaded that owing to the negligence and dishonesty of the defendants second party Suit No. 185 of 1917 was ultimately decided against the plaintiffs who were deprived of all the property except the 4-biswansi odd share in Ujhani.
15. In the 8th paragraph of the plaint it was set out that by reason of the negligence of the defendants second party and their dishonesty and collusion with the defendants first party in the earlier suit the decree was not binding. The suit was contested by the defendants first party, that is to say, the representatives of Sita Ram who denied all the allegations of negligence and collusion and pleaded that the present suit was collusive. No written defence was filed on behalf of the defendants second party, that is to say, the sons and grandsons of Shankar Prasad including Bansidhar. The written statement filed by the first set of defendants was put in on the 9th May 1923. On the 24th July 1923, the Subordinate Judge of his own motion examined a person named Ajudhia Prasad or Ajudhia Saran who was the pairokar of the plaintiffs, and later on, that is to say, on the 18th September 1923, he examined one of the defendants second party, Pandit Ajudhia Prasad, who is an uncle of the plaintiffs. Why he examined Pandit Ajudhia Prasad is not apparent; for this man did not represent the plaintiffs in the earlier suit. As we have said they were represented by their own father Bansidhar who is alive and is a party to the present proceedings.
16. After these two persons had been examined the plaintiffs, on the 2nd of October 1923, applied for amendment of the plaint. They asked that the allegations of collusion and dishonesty made against the defendants second party might be struck out of the plaint and asked for the addition of a fresh paragraph (paragraph 8a), in which it was alleged that there had been dishonesty on the part of a certain karinda, Narain Das, who had been employed by the defendants second party. On the 14th October the Subordinate Judge disposed of this application. He allowed the allegation of dishonesty and collusion to be struck out from the plaint, but he refused to allow the addition of a new paragraph to the plaint, viz., paragraph (8a,) though strangely enough, in spite of this order, the addition to the plaint was made and initialled by the Subordinate Judge. Without calling for any other evidence on the issue of negligence which he had already framed the Subordinate Judge dismissed the suit on the 2nd of November 1923, on the finding that there had been no such negligence in the conduct of the earlier suit on behalf of the plaintiffs as would justify a declaration that a decree was not binding on them. We have now this appeal before us in which the judgment of the Subordinate Judge is attacked on various grounds. We do not, in view of the order we are about to pass, propose to discuss at any length at the present moment all the pleas which are set out in the memorandum of appeal. We do not approve of the method by which the Subordinate Judge has disposed of the case. Having framed an issue regarding the question of negligence he proceeded to dispose of it on the evidence of two witnesses of his own choosing and that in our opinion was not a proper thing to do. It was open to him, of course, to decide upon the allegations in the plaint that the negligence which was assigned could not constitute a cause of action for the suit, but that is not the course which has been followed. We find it necessary therefore to remit issues which will be decided after giving both aides opportunity to produce evidence; but before we proceed to do so we think it expedient to make certain observations concerning the questions which arise for disposal.
17. We would say in the first place, that the complaint laid in the 5th ground of the memorandum of appeal to the effect that the Subordinate Judge should have allowed amendment of the plaint as asked for by the plaintiffs is not well founded. On the contrary we hold that the Subordinate Judge's order at pages 11 and 12 of the record passed upon the application for amendment was a perfectly proper order. The only fault we have to find with the Subordinate Judge's procedure is that in spite of this order he allowed the whole of paragraph 8 a to be added to the plaint. This was probably the result of inadvertence. At any rate, this paragraph 8 a has no business to be in the plaint and must be expunged from pleadings to the extent the amendment was disallowed.
18. In the next place, we have to observe that the allegation of the negligence which constitutes the cause of action are directed against the defendants second party consisting of three persons, Pandit Ajudhia Prasad, Pandit Bansidhar and Kishan Swarup. We have no concern in this case with any negligence or alleged negligence on the part of Ajudhia Prasad or Kishan Swarup. They owed DO duty whatever to the present plaintiff's in connexion with the previous suit. The only person whose negligence can be pleaded in this suit is Bansidhar who was the guardian ad litem of two of the plaintiffs who were impleaded in Suit No, 185 of 1917 as minor defendants-we have explained that the third plaintiff in the present suit was not born at the time when the earlier suit was brought. And so it follows that what has to be investigated in this suit is the negligence, if any, of Bansidhar. Coming now to the law which has to be applied we have no doubt that it is well settled that in certain circumstances a minor can claim to avoid a decree passed against him in a suit in which he was represented by a guardian ad litem. The general rule on this subject derived from the authorities is thus stated in Halsbury's Laws of England, Volume 17, page 138, paragraph 316:
An infant plaintiff is as much bound as an adult by a judgment or order in the cause even though there may have been irregularities in the conduct of it unless there has been fraud or gross negligence on the part of his next friend.
19. For a statement of the law as applied in India we may refer to the case reported in Lala Sheo Charan v. Ram Nandan, etc. (1898) 22 Cal 8. In that judgment various authorities are cited. A reference is made to Macpherson on Infants, page 386, which reads as follows: An infant plaintiff, though thus favoured in the course of the suit, is as much bound by a decree and by all the proceedings in a cause as a person of full age and cannot, nor can his representatives, open the proceedings unless upon new matter or on the ground of gross laches or of fraud and collusion which will annul the proceedings of the Courts of justice as much as any other transactions.'
20. Reference is also made to Simpson on the Law of Infants, 1st edition, p. 475. In this the law is stated as follows:
A decree may also be impeached where there has been gross negligence by the next friend in the conduct of the infant's case or new matter discovered since the date of the decree.
21. The judgment also refers to the case of In re Hoghton 18 Eq 573. That was a case in which the Court found that the next friend of the minor had 'grossly and inexcusably' neglected his duty, and so it was held that the infant had a remedy and might on the ground of the neglect of duty by the next friend re-open the proceedings. After referring to these English authorities the Court observed that the same rule of law would he applied in India, namely, that the gross negligence of his next friend would entitle a minor to the evidence of proceedings undertaken on his behalf, and by parity of his reasoning the same rule would apply in the case of a minor defendant who had been represented in litigation by a guardian ad litem. The law was laid down in the same sense in Ram Sarup v. Shah Latafat Hossein (1902) 29 Cal 735 where Gregory v. Molesworth (1747) 3 Atk 626 ''was cited to show that an infant has remedy either by application for review of judgment or by separate suit when either gross laches or fraud or a collusion is found in the next friend. The result appears to be that the negligence or laches of the guardian which entitles the minor to avoid the decree must be of a gross character. The word 'gross' is used in all the cases to which we have referred. It has been argued before us and on very good authority that the expression 'gross negligence' has no definite meaning and reference has been made to the dictum of Rolfe B, in Vilson V Brett (1843) 11 M and N 115 that he could see no difference between 'negligence' and 'gross negligence,' but that it was the same thing with addition of a vituperative epithet.
22. Then there is authority of Lord Denman in Hinton v. Dublin (1842) 2 QB 661 who says:
It may well be doubted whether between 'gross negligence' and 'negligence' merely any intelligible distinction exists.
23. The truth is that no real definition of negligence can be laid down without a conception of the measure of the duty prescribed in the circumstances of the particular case under consideration.
24. Negligence is the breach of a legal duty to take care, and until we know what the duty is in the particular instance, we are unable to predicate whether there has been negligence or not. The standard of due care in all cases in which a duty to take care exists is the care which would be taken in the same circumstances by an ordinary careful man. That test is the conduct of the average man in like circumstances and with like knowledge and means of knowledge and obviously the amount of care will be different in different cases for, as observed by a learned author (Salmond in his Law of Torts):
A reasonable man will not show the same anxious care when handling an umbrella as when handling a loaded gun.
25. The case we are dealing with here is that of a person appointed as guardian ad litem to look after the interests of an infant defendant and the standard of duty is in this case that which would he followed by the man of ordinary prudence if he were called upon to act in like circumstances on behalf of himself and his own property. He must do as much to protect the interests of the minor as he would do to protect his own. No more percise definition of the duty of a guardian ad litem can be safely laid down. It is to be observed that it is not every act or omission of a guardian ad litem which may seem at first sight to constitute a falling away from, this standard of duty which can be seized upon for the purpose of founding a case of negligence. As was pointed out in the case of Lekhraj Roy v. Mahtab Chand (1871-72) 14 MIA 393, while it is undoubtedly the duty of guardians scrupulously to regard the interests of minors in dealing with their estates the interests of infants would seriously suffer if a notion were to prevail that guardians were bound for their own security to contest all claims against an infant's estate whether well or ill founded.
26. The implication of this is that there is no universal duty cast upon a guardian ad litem to defend a suit brought against a minor even if the suit be ill founded. It may in the particular circumstances of the case be expedient in the interests of the minor to restrain from making any defence.
27. And following this authority it was held in the case of Parmeswari Pershad Narayan Singh v. Sheo Dai Rai (1907) 6 CLJ 448 that it is not every kind of negligence nor any amount of negligence which would render proceedings otherwise regular and proper liable to be opened. It must be such negligence as leads to the loss of a right which, if the suit had been conducted or 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 the guardian ad litem to appear at the trial. Or, to put the matter differently, the nature of the duty demanded from the guardian ad litem may vary according to the nature of the case in which he is called upon to act. An omission to defend or to raise a particular plea, or to call certain evidence, might in the circumstances of a particular case amount to negligence or to a breach of the duty which was owing by the guardian ad litem to the infant in that case. In different circumstances such an omission might not amount to negligence. The thing to be regarded in each set of circumstances is the interest of the minor.
28. In short the test which the cases seem to lay down is whether or not there has been culpable neglect of the interests of the minor. Has there been in the conduct of the suit any act or omission on the part of the guardian ad litem which in the result has wrought prejudice to the minor's interests? That appears to be what is meant by the expression 'gross negligence or laches' when used in this context.
29. In the case with which we are dealing we are concerned with what was done or not done by Bansidar alone. He was the person responsible for the protection of the interests of his two minor sons who, like himself, were impleaded as defendants. Incidentally it may be observed that Bansidhar was not engaged merely in looking after the interests of the minors alone; his own interests in the same property were at stake and were capable of protection in the same way. The matter then to be decided is whether with reference to the allegations contained in paragraphs 4 and 5 of the plaint as they stand, and to those contained in paragraphs 6, 7 and 8 as now amended, Bansidhar was guilty of negligence in the sense laid down above. We think this question must be inquired into and an opportunity given to the plaintiffs, which has not hitherto been given them, of showing, if they can, the negligence asserted. We therefore remit the following issues to the Court below for findings:
(1) With reference to the allegations contained in paragraphs 4 and 5 and the amended paragraphs 6, 7 and 8 of the plaint, was Bansidhar, as guardian ad litem in Suit No. 185 of 1917, guilty of negligence in the conduct of the suit on behalf of his minor sons? (2) If so, has that negligence resulted in prejudice to the rights of the minors? Both sides will be allowed to produce evidence on these issues and the findings will be returned to this Court within three months from this date. On receipt of the findings, the usual period of ten days will be allowed for objections.