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Ram NaIn Shukul Vs. Ganga Shukul and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1914All254; 25Ind.Cas.620
AppellantRam NaIn Shukul
RespondentGanga Shukul and ors.
Cases ReferredKunwar Partab Singh v. Bhabuti Singh
Excerpt:
guardian and ward - suit against minor--appoint-went of guardian art litem--practice--father, a fit person to act. an guardian, of his son where no question of immorality is raised--confession of judgment, whether compromise--civil procedure code (act xiv of 1882), section 462, application of. - - 819 a decree against the father as head of the family is as good as a decree against him and his sons......nos. 1 to 4 and the husband of defendant no. 5, on 23rd july 1902 the mortgagee brought a suit for sale on foot of the said mortgage. bindesri shukul was the principal defendant in the said suit, but his sons ram suchit and ram nain, who wore then minors, were also impleaded as defendants to that suit under the guardianship of their father. it was alleged in the suit that the defendants were members of a joint hindu family of which the first defendant was the head and the managing member. the plaint went on to say that the father had borrowed the money for certain legal and necessary purposes and for the benefit of the family, and the suit was for the sale of the entire mortgaged property. no copies of the application made for the appointment of defendant no. 1 as guardian of.....
Judgment:

Sunder Lal, J.

1. The circumstances under which this appeal arises are as follows: On 13th November 1898 one Bindeari Shukal executed a deed of mortgage of a 3-pie 5-khunis zemindari share in Mouza Panapur in favour of one Slieo Bakhsh Shukal, grandfather of defendants Nos. 1 to 4 and the husband of defendant No. 5, On 23rd July 1902 the mortgagee brought a suit for sale on foot of the said mortgage. Bindesri Shukul was the principal defendant in the said suit, but his sons Ram Suchit and Ram Nain, who wore then minors, were also impleaded as defendants to that suit under the guardianship of their father. It was alleged in the suit that the defendants were members of a joint Hindu family of which the first defendant was the head and the managing member. The plaint went on to say that the father had borrowed the money for certain legal and necessary purposes and for the benefit of the family, and the suit was for the sale of the entire mortgaged property. No copies of the application made for the appointment of defendant No. 1 as guardian of his minor sons, nor a copy of the order, if any, appointing him such a guardian has been filed. The whole record of that suit is not before me, and I am, therefore, unable to say that such an application was made and granted.

2. On 11th August 1902, the father on his own behalf and as guardian of his minor sons filed a confession of judgment, on the strength of which a decree for sale was made on that date. A decree absolute for sale was made on 15th April 1903, and in execution of the said decree the property in suit was put up to sale and purchased by the decree-holder on 20th January 1906. The decree-holders-purchasers are now in possession of the said property.

3. The present suit was filed by the sons of Bindesri Shukul on 27th November 19 12. They allege that they have only recently attained majority, and have come to know of the mortgage, the decree and the sale mentioned above and they brought this suit for obtaining a declaration that the decree aforesaid was obtained by the mortgagee fraudulently and is not binding upon the plaintiffs, and the sale in execution held thereunder is void against them. They claim possession of a 1/2 pie share in the village.

4. It is not alleged in the plaint that the debt secured by the mortgage of 13th November 1898 was incurred for an illegal or immoral purpose, or for no legal necessity. The mortgage itself is not impugned in the plaint. The main ground of attack set forth in the plaint is that the (sic)was not a fit and proper person (sic)appointed a guardian of his minor son (sic)his interest was adverse to that of his (sic)sons in that he could not set up a (sic)the illegality of the debt incurred by (sic)in his capacity as guardian ad litem (sic)minor sons, the confession of judgment (sic)by him on behalf of his minor sons (sic)not in the interest of the minors, (sic)urge that the conduct of the mortgage (sic)thus nominating an unfit and unsuing guardian was fraudulent. Upon this ground as also upon the ground that no order for the appointment of a guardian ad litem had been made by the Court, they impugn the decree and the sale that followed in execution. Both the Courts below have dismissed the claim. The present appeal has been filed on behalf of one of the sons, viz., Ram Nam Shukal alone.

5. The first point for consideration is, was the appellant properly represented in that suit by a duly appointed guardian? This resolves itself into two questions, viz:

(a) Was Bindesri Shukul appointed by the Court guardian ad litem of his minor sons?

(b) If so, was his interest adverse to that of his sons and is his appointment vitiated for that reason?

6. As to the first point, in the absence of the record of the former suit it is impossible to say whether an order appointing the father a guardian ad litem was formally put upon the record or not, nor Mr. Jang Bahdura Lal has shown me the copy of the order-sheet in that case. No such order is stated in it. Under the practice now in force, every order made on any application is not written on the application itself, but in the order-sheet. This is a comparatively recent practice. In 1902 the orders used to be written on the applications themselves and the Courts below only noted the leading orders on the order-sheet. The absence of the record of such order in the order-sheet is, therefore, not conclusive. The first defendant is recited the plaint as the guardian of his minor and figures in the proceedings in suit as such. In Walian v. Banke i Pershad Singh 30 C. 1021. (P.C.) : 30 I.A. 182 : 7 C.W.N. 774 : L.R. 882 their Lordships the Privy Council lay down the law the question. Mere absence of a formal of appointment of a guardian is not itself fatal to the suit, if it appears m the record that the minors were actively represented in that suit by their her with the sanction of the Court, is next urged that the father was a suitable person to be appointed a ad litem of the minor defendants, defence to the suit was that the debt in question was incurred by the father for an illegal or immoral purpose, he could not perhaps properly act in the suit as the guardian of the defendants who had set up such a defence. It is, however, not suggested that such defence was available to the minors. It is not alleged that such was the case in the plaint in the present suit. No question about the propriety of the mortgage or of the absence of a legal necessity to raise the loan has been urged in this case. If the loan was advanced for purposes which made it binding upon the sons and there was no basis for a suggestion to the contrary, I see no objection, to the father acting as guardian ad litem of his sons, and filing a confession of judgment. It saved the minors from the liability of paying a full fee on account of Pleader's fee in the taxation of the costs of the plaintiff, as also the costs of proving the mortgage see Bhagwati Prasad v. Bhagwati Prosad 17 Ind. Cas. 846 : 11 A.L.T. 76 : 35 A. 126 .

7. Be that as it may, the decree was in any event properly passed against the father. From the plaint in the suit it is evident that, though the sons were also made parties to the suit, the father was impleaded as the head of the family. A sale in execution of the decree made in he case has taken place; and the suit is against the auction-purchaser. Under the Full Bench ruling in the case of Hori Lal v. Nirnman Kunwar 15 Ind. Cas. 126 : 34 A. 549 : 11 A.L.J. 819 a decree against the father as head of the family is as good as a decree against him and his sons. After a sale in execution of such a decree, the sons could not recover back the property sold from the auction-purchaser, without proving that the debt to satisfy which the sale took place was an improper debt for which they were not responsible Balwant Singh v. Avian Singh 7 Ind. Cas. 112 : 33 A. 7 : 7 A.T.J. 852 . Even a right to redeem was denied to the plaintiffs in that case. In a later case Baldeo Singh v. Hira Lal 13 Ind. Cas. 951 : 9 A.L.J. 67 there was a difference of opinion among the members of the Bench which heard that case. An appeal under the Letters Patent was preferred against the judgment of Mr. Justice Chamier, but his decree was affirmed in the appeal. In Sheo Dayal v. Jagar Nath 12 Ind. Cas. 111 : 8 A.L.T. 922 Knox and Piggott, JJ., have held that 'the property having passed out of the family, whether by private sale in satisfaction of an antecedent debt, or by an auction sale in execution of a mortgage decree, or by virtue of a decree absolute for foreclosure, the sons of a Hindu father whose property has thus passed out of the family are bound by virtue of their liability to pay their father's debt not tainted with immorality, so that they cannot sue to set aside an alienation which has thus become final, except on some ground which would relieve them from the liability to pay the debt which is the consideration for the sale.'

8. No such ground is suggested by the plaintiffs in their plaint. All that is said is that the decree was fraudulently obtained by the mortgagee, and the only fraud suggested is that the decree-holder ought not to have nominated the father as the guardian ad litem of his minor sons. I have already shown that the interests of the father and the sons were identical in the absence of any suggestion that the debt was tainted with immorality or was for other reasons not recoverable from the interest of the sons in the joint family property. There was no fraud, therefore, in getting him appointed as their guardian for the purposes of the suit.

9. Mr. Jung Bahadur Lal has lastly relied upon the case of Kunwar Partab Singh v. Bhabuti Singh 21 Ind. Cas. 288 : 11 A.L.J. 901 : 17 C.W.N. 1165 : (1913) M.W.N. 785 : 14 M.L.T. 299 : 25 M.L.J. 422 : 16 O.C. 247 : 18 C.L.J. 384 : 15 Bom. L.R. 1001 : 35 A. 487 : 40 I.A. 182 (P.C.). In that case the decree impugned was based on a compromise entered into on behalf of the minors of their guardian without the leave of the Court under Section 462, Civil Procedure Code (Act XIV of 1882). The compromise and the decree were, therefore, voidable at the instance of the minors, and their Lordships of the Privy Council restored the plaintiffs to the same position and 'to such rights as they had before their suit was dismissed on 15th December 1899.' The confession of judgment filed in this case is not a compromise to which the provisions of section' 462, Civil Procedure Code, were applicable. This was a case in which apparently the defendants had no defence to make. It is not suggested in the plaint what possible defence they had to the suit and it seems that the father only saved himself and his sons from all further costs by confessing judgment in the case.

10. Their position is in no way made worse by the decree passed in that suit. They had a right to redeem the mortgage by paying up the amount due under wit. They did not do so,' They do not seek to redeem even now. They do not question or impugn the mortgage in suit in that case. They do not show that no order appointing the father as their guardian ad litem was in fact made. They also do not allege or prove circumstances under which it could be held that their father's interest was adverse to their interests. Under the circumstances the Courts below had no alternative but to dismiss the suit.

11. I dismiss the appeal and affirm the decree of the lower Appellate Court with costs.


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