1. The plaintiff, Tara Chand, who has since become a major, instituted a suit for cancellation of certain decrees of Court through his next friend Musammat Persauni, his certificated guardian. He is the son of Jainti Prasad, and was born on 13th November 1899. A guardian was appointed by Court of his person and property on 5th October 1907. He attained the age of majority on 13th November 1920. After the guardian was appointed, his uncle Banarsi Das adopted him. In 1916 one Musammat Champi sued Banarsi Das and others for partition of a house, and all proceedings were completed in the First Court on 20th March 1917. Judgment was reserved on that day and 30th March was fixed for delivery. Banarsi Das died between those two dates, and on 28th March Musammat Champi applied to bring Tara Chand on the record in' place of his adoptive father, Banarsi Das. He appointed a Pleader and contested the suit. On 14th April 1917, a preliminary decree for partition was passed, and a final decree on the 21st June. Tara Chand himself appealed from both decrees to this Court, and the appeals were dismissed on 28th June 1920. The present suit for the cancellation of all the four decrees on the ground that they were passed against him while he was a minor and not represented by a guardian was instituted on the 14th of September 1920.
2. The learned Subordinate Judge of Meerut decreed 'the suit, and hence two of the defendants, Musammat Champi and Musammat, Sona Dei, have appealed. The grounds of appeal are: (1) that the plaintiff failed to prove that he was born on the 13th November 1899, (2) that on his adoption by Banarsi Das the guardianship certificate issued to Musammat Persauni, became inoperative, and the plaintiff attained majority at the age of 18 on 13th November 1917, (3) because the decree of the First Court sought to be cancelled is saved by the provisions of Order XXII, Rule 6; (4) that the plaintiff was not entitled to a decree in this suit, because he was in no way prejudiced by the want of appointment of a guardian and he was able to conduct his defence effectively himself, and (5) that the plaintiff was barred by the rule of estoppel from questioning the decrees.
3. There is no force in any of these grounds. It was conceded during the argument that the plaintiff was born on the 13th November 1899. Once a guardian was appointed to him, it mattered little what other property he acquired. The adoption did not change his identity and the power of the guardian, Musammat Persauni, and of the District Court, which appointed her, continued to be the same.
4. Order XXII, Rule 6, prevents abatement when death takes place between the conclusion of the hearing and the pronouncement of the judgment, and the decree is passed against a dead man. Obviously this provision of law covers cases where the Court is unaware of the death of a party and proceeds on the supposition that the parties are alive. It was urged that in the present case, hearing concluded on the 28th of March and judgment was delivered on the 14th of April 1917, and that the death of Banarsi Das took place between the two dates. This is not a correct way of summarising the proceedings of the Court. After the 28th March and before the judgment was pronounced, some proceedings took place, namely, those of bringing Tara Chand on the record; there was, therefore, no conclusion of the hearing prior to the death of Banarsi Das. The rule deals with a decree against a dead man and not with one against living persons. It indicates how a decree against a dead man is to be construed and can have no reference to a decree passed against living persons. Even where preliminary and final decrees were both, passed against a dead person, the Patna High Court held that the final decree was a nullity and was not saved by the provisions of this rule. Jungli Lall v. Laddu Ram Marwari 50 Ind. Cas. 529; 4 P.L.J. 240; (1919) Pat. 105.
5. The four decrees sought to be/cancelled were passed against a minor and were void. We have not to consider any question of prejudice to the plaintiff. The learned Counsel for the appellant quoted rulings in cases where the minor was not properly represented and the Courts refused to give him relief when it was discovered that he had not suffered any prejudice by improper representation. The first case is a Privy Council case of Walian v. Banke Behary Pershad Singh 30 C. 1021; 301. A. 182; 7 C.W.N. 774; 5 Bom. L.R. 822; 8 Sar. P.C.J. 512 (P. C). A Bench case of this Court, Ram Bareshha Ram v. Tarak Tewari 33 Ind. Cas. 805; 14 A.L.J. 589 was similar. The most recent case is that of the Patna High Court, Pande Saldeo Narain v. Ramayan Tewari 71 Ind. Cas. 705; 2 Pat. 335; 4 P.L.T. 147; (1923) A.I.R. (Pat.) 242. In this case, one of the learned judges (Das, J.) has pointed out the distinction between void and voidable decrees at page 352 Page of 2 Pat.--[Ed.] of the report:
6. The Court has no jurisdiction to render judgment against one who is not a party to the suit, though it has jurisdiction to render judgment against one who is a party to the suit but who has not been brought before it by reason of the failure on the part of the Court to follow the particular procedure laid down in the Code. The one affects the existence of the jurisdiction of the Court; the other affects the exercise of it. To take a simple case, a minor is not a party to the suit, unless he is represented in the record of the suit by a guardian competent to act as, such. Where the record of the suit itself shows that the minor is wholly unrepresented, or that he is represented by a guardian disqualified from acting as such a guardian under the express provision of the Statute, the result is that the minor is not properly a party to the suit, and a judgment rendered against the minor is without jurisdiction and null and void. But where he is properly a party to the suit--and as he is properly a party if he is represented in the record by a guardian not disqualified from acting--the jurisdiction of the Court to try and determine the cause as against the minor is complete, and such jurisdiction will not be ousted, on proof that the Court did not follow the appropriate procedure for the appointment of the guardian,' A Full Bench of this Court held a decree passed against a minor; without the appointment of a guardian ad litem to be void [Bhura Mal v. Har Kishen Das 21 A. 383; A.W.N. (1902) 76]. This ruling was followed by a Bench of two Judges in Hanuman Prasad v. Muhammad Ishaq 23 A. 137; A.W.N. (1935) 229; 2 A.L.J. 615 where the force of the Privy Council case of Walian v. Banke Behary Pershad Singh 30 C. 1021; 301. A. 182; 7 C.W.N. 774; 5 Bom. L.R. 822; 8 Sar. P.C.J. 512 (P. C) was explained, and the authority was quoted of the Privy Council case, Khiarajmal v. Diam 32 C. 296; 1 C.L.J. 581; 32 I.A. 23; 8 Sar. P.C.J. 734; 9 C.W.N. 231; 2 A.L.J. 71; 7 Bom. L.R. 1 (P. C). In the latter case their Lordships observed:
7. Their Lordship.3 agree that the sales cannot be treated as void or now be avoided on the ground of any mere, irregularities of procedure in obtaining the decrees, or in the execution of them. But, on the other hand, the Court had no jurisdiction to sell the property of persons who ware not parties to the proceedings, or properly represented on the record. As against such persons the decrees and sales purporting to be made would be a nullity, and might be disregarded without any proceeding to set them aside.' The present case is similar. The decrees passed against the plaintiff are a nullity and might be disregarded without any proceeding to set them aside. In Ram Chander v. Chheda Lal 2 A.L.J. 460; A.W.N. (1905) 122 this Court held that where a minor was sued as a major and a decree passed against him, the decree was not binding upon him. That was a case where a certificated guardian was appointed under the Guardians and Wards Act to the minor and it was held that such a minor did not attain majority until the age of 21. In that case it was contended that a guardian having been appointed to the minor's property in one district, the minor would attain the age of majority at 18 with respect to property situated in another district. The learned Judges held that a person cannot be a major in one district and a minor in another. Similarly, it may be stated here that Tara Chand cannot be a minor with respect to the property of his father Jainti Prasad, and major with respect to the property inherited by him from his adoptive father Banarsi Das. The Calcutta High Court also has held a decree against a minor to be a nullity [Purna Chandra Kunwar v. Bejoy Chand Mahtab 18 Ind. Cas. 859; 17 C.W.N. 549; 18.C.L.J. 18].
8. As pointed out by the learned Judge of the lower Court the appellant did not come forward herself nor get any agent of hers examined to prove circumstances which would give rise to any question of estoppel. We were not told during the argument how the action of Tara Chand led the defendant, Musammat Champi, to act as she did in the previous litigation. It is not even alleged by an affidavit or otherwise that she was aware of how Tara Chand was acting, and had no knowledge of his being a minor. Her learned Counsel here represented that Tara Chand was playing a trick. Subsequent to the previous litigation, he had purchased more shares in the house (see paragraph 12 of the plaint) and by re-opening the litigation he desired to get a solid block for himself and oust Musammat Champi from the portion of the House allotted to her. I have, however, to decide a question of law and not of morality. These considerations may be submitted to the Trial Court in case there is a fresh trial of Musammat Champi's suit.
9. Though not mentioned in the grounds of appeal, an argument was advanced here that a declaration is discretionary for this Court to grant and the circumstances of the present case are such that the discretion should not be exercised. The decrees are a nullity and may be disregarded so it cannot be said that the lower Court exercised its discretion wrongly in granting the declaration sought by the plaintiff. It is also urged that the plaintiff's remedy was by way of injunction to restrain the defendants from executing the decrees and not by way of declaration. The case of Kinhamed v. Kutti 14 M. 167; 1 M.L.J. 328; 5 Ind. Dec. (N.S.) 119 was quoted as an authority. The facts of that case are peculiar and in no way applicable here. The remedy granted to the plaintiff was a proper one.
10. I would dismiss the appeal with costs.
11. This appeal raises the question whether a minor, who was unrepresented in the suit by any guardian, can be held to be bound by the decree passed against him, although he neither alleges nor proves that the decree passed against him is unjust or to his prejudice.
12. The facts of the case are no longer in dispute and are as follows. The appellant Musammat Champi filed the Suit No. 203 of 1916 against one Lala Banarsi Das and several others for the partition of a certain house. The case was duly heard and concluded except for the judgment during the lifetime of Banarsi Das. The Court reserved judgment and fixed the 30th of March 1917 for delivery of it. Banarsi Das died on the 23rd of March 1917. An application was made to the Court by Musammat, Champi that the respondent, Tara Chand, the adopted son of Banarsi Das, might be brought on the record as his legal representative. This application was granted and ultimately on the 14th of April 1917 a preliminary decree was passed. The final decree for partition followed on the 21st of June 1917. Tara Chand on being brought on the record purported to appoint a Vakil and resisted the suit so far it lay in his power. He filed appeals to this Court against both the preliminary and final decrees which were, however, unsuccessful. Tara Chand was the natural son of one Jainti Prasad. On the death of Jainti Prasad Tara Chand's natural mother Musammat Persauni took out a certificate of guardianship, on the 15th of November 1907. It was after this certificate had been obtained that Tara Chand was adopted by Banarsi Das and passed into his family. Evidently everybody forgot that there was a certificated guardian and Tara Chand was throughout treated as a major. As already stated, he also regarded himself a major and accordingly resisted the suit and preferred the appeals. After the appeals were dismissed it struck Tara Chand that he might try his luck again and he accordingly brought the suit, out of which this appeal has arisen, to obtain a declaration that the decrees passed against him were not binding on him on the sole ground that he was unrepresented in the suit, by a duly appointed guardian. He nowhere stated in the plaint how the decrees passed against him were prejudicial to his interests. He made certain allegations about the plaintiffs being aware of his minority and of her having dishonestly put him forward as a major. But that allegation has not been substantiated. As I have stated, the sole question to be decided is whether the mere fact that no guardian had been proposed or appointed for Tara Chand is sufficient to vitiate the decrees passed against him. It may be mentioned here that Tara Chand has purchased the shares of certain co-sharers in the property and possibly the sole object of the present suit is to re-open the partition and to: obtain a compact share in the property which would include not only his ancestral share but also the shares purchased by him.
13. Before the case of Walian v. Banke Behari Prasad Singh 30 C. 1021; 301. A. 182; 7 C.W.N. 774; 5 Bom. L.R. 822; 8 Sar. P.C.J. 512 (P. C) was decided it was generally believed that a formal defect in the appointment of a guardian for the suit of a minor was in itself sufficient to vitiate all the proceedings against the minor in the suit. The case of Bhura Mal v. Har Kishan Das 21 A. 383; A.W.N. (1902) 76 may be cited as an instance. But since the Privy Council decided the case of Wallian v. Banke Behari Prasad Singh 30 C. 1021; 301. A. 182; 7 C.W.N. 774; 5 Bom. L.R. 822; 8 Sar. P.C.J. 512 (P. C) it is now clearly recognised that where a minor has been substantially represented and has not been prejudiced in the litigation it is not open to him to obtain the relief of a declaration that the decree is not binding on him. Following this case, it has been held that in order to find out whether the minor was substantially prejudiced or not, it would be necessary often to go into the merits of the case. If the representation is of a doubtful character the fact that the minor has not at all suffered would go to establish that the representation was substantial. The case of Murli Dhar v. Pitambar Lal 66 Ind Cas. 372; 20. A.L.J. 329;.44 A. 525; (1922) A.I.R. (A.) 91; 4 U.P.L.R.(A.) 170 was of this nature.
14. The question, however, before me is what would be the effect of a decree in which the minor has not been at all represented. It has been urged with great force that unless the minor alleges that he was prejudiced for want of a guardian he has no right to succeed. It has been further pointed out that the objective law, namely the law of procedure, is merely a hand-maiden to justice and where a substantial justice has been done a breach of the rule of procedure cannot by itself be a ground for a suit. There can be no doubt that the last stated proposition is very correct. The Courts exist for granting redress. Where there is no prejudice, there is no grievance to be redressed. The mere fact that there has been a defect in following the procedure cannot be made a matter of grievance and there can be no redress. But the question raised in this appeal is not one of procedure but is one of substantive law. It is a question of status. There can be no doubt that a decree, however proper it may be, passed against a person who is already dead can be of no effect against the estate of the deceased. To quote an expression often used, the decree is a mere 'nullity'. The reason is this. The deceased person cannot be called upon to obey the decree and, therefore, the decree is of no consequence. The legal representatives of the deceased cannot be called upon on foot of the decree, to perform what the deceased person was called upon to perform. A minor suffers from certain disabilities under the law of minority. One of the disabilities is that he cannot come to Court either to seek a relief or defend an attack on him, except through a person who can properly represent him This is his disability owing to his being under a certain specified age. In this particular case that age was enhanced to 21 years owing to a certificate of guardianship having been granted to his natural mother. We have not been called upon to consider whether the factum of Tara Chand's adoption into another family in any way affected the guardianship certificate and whether his age for obtaining majority was reduced to 18 years. It has been conceded that Tara Chand was a minor when he was brought on the record as a major on the 29th March 1917. He was a minor when he preferred the appeals. Indeed, he was a minor when he brought the suit out of which this appeal has arisen. He attained majority during the pendency of the suit. Tara Chand was suffering from a disability to defend himself owing to his status of minority. In this particular case the minor (Tara Chand) was probably an intelligent person quite able to look after himself and his property. But he might have been only a baby one year old, when his father died, The law applicable would have been the same then, as in the present case. The question then is whether the bringing on the record of a person suffering from the disability of minority can be regarded as of no consequence if the ultimate result of the suit was in no way prejudicial to his interest. To my mind, in principle, there is nothing to differentiate the case of a decree passed against a dead man from a decree passed against a person who is suffering from the disability of minority without having a person appointed to look after his interest.
15. No direct authority of this Court has been cited. A number of rulings was cited at the Bar but most of them could be distinguished on account of the facts involved in each case. The only case which appears to be exactly in point is the case of Purna Chandra Kunwar v. Bejoy Chand Mehtab 18 Ind. Cas. 859; 17 C.W.N. 549; 18.C.L.J. 18. In this case a decree for arrears of rent had been obtained against a minor who had been sued as a major without anybody to represent him in the litigation. It held that the decree could not be binding on him and was a nullity. On principle and authority, therefore, Tara Chand would be entitled to have it declared that the decrees are not binding on him.
16. It was urged that, having regard to the peculiar fact of the case, namely, the arguments having been concluded during the lifetime of Banarsi Das, the provision of Order XXII, Rule 6 of the Code of Civil Procedure was applicable and the decree passed was binding on the estate of Banarsi Das. Assuming, but without deciding that Order XXII, Rule 6 of the Civil Procedure Code has any application to the facts of this case, it is clear that as a matter of fact no decree was passed against Banarsi Das. On the other hand, the only decree that was passed was against Tara Chand himself. The provisions quoted, therefore, can be of no avail to the appellants.
17. The further question, however, still remains whether the plaintiff, Tara Chand, should wholly succeed in the suit or whether the Court should go into the merits of the case and see whether or not he was bound by the decree that was validly passed against the remaining defendants. For if the decree be such as to bind Tara Chand, without its having been specifically passed against him, he should not be allowed to escape the liability on the decree for the simple reason that he was without a guardian in the proceedings. He cannot be in a better position than he would have been in if he had not been at all made a party. In the Calcutta case Purna Chandra Kunwar v. Bejoy Chand Mehtab 18 Ind. Cas. 859; 17 C.W.N. 549; 18.C.L.J. 18 the High Court remanded the case for a trial of the question whether the minor was or was not liable along with the other defendants on account of the arrears of rent. The minor in that case had sued for the recovery of decree-money already paid and it was held that if he was liable, as a matter of fact, he could not recover the money he had paid. Similarly, in the case of Ram Chander v. Chheda Lal 2 A.L.J. 460; A.W.N. (1905) 122 issues were remanded for ascertaining what advantages, if any, had been derived by the plaintiff by the decree impeached. In this case the decree impeached is a decree for partition. Tara Chand could not be bound by a decree passed against any other of the defendants, The result of a declaration that the decrees are not binding on Tara Chand would be that the partition suit will be re-opened at the stage at which Tara Chand came in. No relief in the nature of a refund has been asked for. There is no prayer that the costs paid under the decree should be paid back to him. In the circumstances there seems to be no bar to the plaintiff obtaining the declaration that the preliminary and final decrees, whether passed by the Court of first instance or appeal are not binding on him.
18. The result is that the appeal fails.
19. The appeal is dismissed with costs here on the higher scale.