P.K. Tare, J.
1. This is an appeal by some of the defendants against the decree, dated 3-12-1958, as amended by the order, dated 24-1-1961, passed by the Second Additional District Judge, Bhopal, in civil appeal No. 239 of 1958, partly modifying the decree, dated 1-7-1957, passed by the Munsif, Udaipura, in civil suit No. 37 of 1956, dated 1-1-1957.
2. The genealogy of the first respondent's family is as under:
(d. 36 years before)
Ayodhya- Hargovind Brijmohan Raghuraj-
(Respondent 2) (d. 15 years before).
Hargovind and Brijmohan died long back. The first respondent filed the present suit against the alienees Bhaosingh, Kashirarn and Ramsingh alleging that there was already a partition between her uncle Ayodhya Prasad and her father Raghuraj Singh about one year prior to the death of Raghuraj Singh. Therefore she claimed to be the heir of her father and, as such, alleged that the sale-deeds dated 8-1-1845 (Ex. D-1) executed by Ayodhya Prasad in favour of Bhaosingh, dated 27-6-1946 (Ex. D-2) in favour of Haridas, and dated 27-6-1946 (Ex. D-3) in favour of Haridas (father of the first, appellant Ramsingh), did not affect her title or interest and the same could not bind her. Therefore she claimed a decree for possession
3. The transferees as also the transferor Ayodhya Prasad denied the plaintiff's claim. According to them, there was no partition at any time between Ayodhya Prasad and Raghuraj Singh and therefore Ayodhya Prasad got the property by survivorship. As such, the plaintiff could haveno interest in the property of her fattier Raghuraj Singh.
4. The learned Judge of the trial Court found that there was partition between the two brothers, Ayodhya Prasad and Raghuraj Singh and that the suit property had been allotted to the share of Raghuraj Singh. It was further found that the plaintiff was a legitimate daughter of Raghunath Singh, and not an illegitimate daughter as was alleged by the defence. As regards the question whether she could claim the property of her father during the life time of her mother it was found that her mother had remarried and therefore she had lost her right in her husband's property.' In that view, the plaintiff was held entitled to the suit property. As a result, the first respondent's claim for declaration was decreed holding that Ayodhya Prasad had no right or title to transfer the property.
5. The learned appellate Judge affirmed the finding of the trial Court that the plaintiff was the legitimate daughter of Raghuraj Singh. However, it was further found that there was no partition at any time between Ayodhya Prasad and Raghuraj Singh, and as such, the plaintiff was not entitled to any relief, and consequently Ayodhya Prasad, having got the property as the sole surviving coparcener, was competent to execute the sale-deeds in favour of the transferees. Therefore the decree of the trial Court was reversed so far as Bhaosingh was concerned. But the learned appellate Judge refused to set aside the decree with reference to the first appellant Ramsingh on account of the fact that the appeal before the first appellate Court had been presented by the minor's mother, Mst. Udibai who was not the guardian-ad-litem. Kashiram applied for being substituted in place of Udibai. In that view, it was held that presentation of the appeal was invalid. Therefore no relief could be granted to the first appellant, Ramsingh in respect of the sale-deeds Exs. D-2 and D-3 dated 27-6-1946.
6. In the present appeal, besides the questions that may arise on account of the findings recorded by the Courts below, another question arises for consideration which has been raised as a preliminary objection on behalf of the first respondent Although the decree of the first appellate Court was passed on 3-12-1958, the decree merely granted a declaration in favour of the plaintiff and had omitted to grant the relief of possession which was specifically asked for but regarding which there was an omission in the decree of the first appellate Court. That lacuna was removed by the order of the first appellate Court dated 24-1-1961. It was thereafter that the present appeal was filed on 26-6-1961. The appeal would be within time from the date of the amended decree, but not from the date of the original decree. Thereforea question of limitation has been raised on behalf of the first respondent, while on behalf of the appellants an extension of time under Section 5 of the Limitation Act is sought in case this Court holds that the limitation would start from the date of the unamended decree.
7. As regards the question of partition, the finding of the learned appellate Judge appears to be correct that there was no partition at any time and therefore surviving coparcener Ayodhya Prasad was fully entitled to the suit property. There appears to be no rational basis for interfering with that finding. In that view, the first respondent will undoubtedly have no right or title to the suit property and the second respondent, Ayodhya Prasad would be competent to dispose it of as he likes. However, the learned appellate Judge refused the first appellant the relief mainly on the finding that the presentation of the appeal through the mother who was not the guardian-ad-litem was invalid. Another difficulty has been created regarding limitation for filing of the present appeal. Therefore it is necessary to consider these two questions at some length after negativing the first respondent's plea of a partition.
8. As regards the question of limitation, there can be no doubt that by virtue of Order 20, Rule 7, Civil Procedure Code, the limitation will start from the date of the decree which in civil cases means the date of judgment. However, question of limitation might arise where a decree is subsequently amended by the Court. In such cases, the question will always arise as to from what date limitation will start, whether from the date of the unamended decree, or the date of the amended decree. In this connection, I might observe that a Division Bench of the Allahabad High Court in Gajadhar Singh v. Basant Lal, ILR 43 All 380 : (AIR 1921 All 80) laid down that where a decree is amended and an appeal is filed against the amended decree which is prima facie barred by limitation, it is not in every case that the appellant can pray in aid the provisions of Section 5 of the Indian Limitation Act, 1908. He cannot do so, for instance, if his appeal does not attack the amended decree, or raise some question connected with the amended decree. This Division Bench recognised the fact that so far as the unamended decree is concerned, it cannot be appealed against subsequently. But, at the most, Section 5 of the Limitation Act might be invoked provided an appellant also attacks the amended decree. If he merely wants to raise grounds against the unamended decree, that will not be open to him if the appeal is filed within time from the date of the amended decree.
9. In Nagendranath v. Ambicacharan Chakravarti, ILR 57 Cal 549: (AIR 1929 Cal676), a Division Bench, presided over by Rankin C. J. and Ghose J., laid down that the date of the decree would always be the date of the judgment and that the fact that the decree is amended would not operate itself to extend the time for appealing. That will go back to the date of the judgment and not to the date either of the drawing up of the decree or of the date of the amendment. Therefore, where there has been an amendment and it is reasonable that the time for appealing should be extended, recourse might be had to the power of the Court under Section 5 of the Limitation Act.
10. In Mt. Gopi Bibi v. Chanu Prasad Singh, AIR 1930 Pat 142 a Division Bench consisting of Fazl Ali J. (as he then was), and Chatterji J., held that where a decree is amended in very material particular, which particular is also the subject-matter of appeal, the period of limitation ought to be calculated from the date of the amendment of the decree.
11. In Sm. Soudamini Dasi v. Nabalak Mia Bhuiya, AIR 1931 Cal 578, a Division Bench of that Court laid down that if a decree is amended either by way of review or under Section 206 (now Section 152 of the present Civil Procedure Code) the decree to be appealed against is the amended decree and no appeal should therefore lie from the original decree.
12. In Nandlal Ganguli v. Dasarathi Mukerji, ILR 59 Cal 1052 = (AIR 1932 Cal 534), Mukerji and Mitter JJ. laid down that even in a case in which the amendment has no relation to the grounds upon which the validity of the decree is sought to be challenged in appeal, circumstances may appear which may justly bring the case within the meaning of the expression 'sufficient cause' as per Section 5 of the Limitation Act. In that case, the application for amendment related to an item of costs which application was pending for a long time. It was under those circumstances the Division Bench laid down that Section 5 of the Limitation Act could be invoked even in such a case.
13. A Division Bench of the Oudh Judicial Commissioner's Court in Mohammed Yasin Khan v. Mt. Hansa Bibi, AIR 1935 Oudh 461 laid down that if an appeal against the amended decree be barred by limitation, time can be reasonably extended under Section 5 of the Limitation Act in view of the amended decree.
14. In N. Janikamma v. I. Veekata Rajagopala Chinnarao, AIR 1945 Mad 62, Wadsworth J. and Patanjali Sastri J., (as he then was), laid down that as per Article 156 of the Limitation Act if a decree was amended, the date of the decree would be the date of amendment and a decree would be appealable on that date. In the alternative, the learned Judges laid down thatSection 5 of the Limitation Act could be invoked by a party and the case before them was a ease where extension of time would be justified.
15. Having in view the several decisions it may be justifiable to propound that although the date of the decree under Order 20, Rule 7, Code of Civil Procedure, would be the date of the judgment, yet where a decree is substantially amended either by way of review or by way of the powers of corrections conferred on the Court under Sections 151, 152 or 153 of the Code of Civil Procedure, the party against whom such amendment or correction had been made ought not to be made to suffer merely on the basis of the wording of Order 20, Rule 7, Civil Procedure Code. If I may say so, the ratio decidendi of the above cases would be that if the decree is amended or corrected in respect of unsubstantial matters, a party may not get a right of appeal against such unsubstantial amendments or corrections. But, if it is substantially amended, the right of appeal would be from the date of such substantial amendment. Or, at any rate, if a party files an appeal against the amended decree, he can invoke Section 5 of the Limitation Act; and if his attack is against the amendment itself, there is no reason why the Court should be reluctant to extend time in his favour. At the most, the Court might not allow him to raise those questions which could have been raised if he had filed an appeal against the unamend-ed decree. But different considerations ought to prevail where the amendment is substantial.
In the present case, the amendment is undoubtedly substantial inasmuch as the unamended decree gave the first respondent a mere declaration in spite of a specific prayer about possession made in the plaint. The amended decree gives her possession as well. Therefore, I am of opinion that as laid down by the Division Bench of the Patna High Court in AIR 1930 Pat 142 (supra) and by the Division Bench of the Madras High Court in AIR 1945 Mad 62 (supra), the appellants' right to file an appeal against the decree for possession would be starting from the date of the amended decree.
Of course, as regards other questions with reference to the relief of declaration, the date of the decree will be the date of the unamended decree. At any rate, in the alternative, the appellants could invoke Section 5 of the Limitation Act and this would be a fit case for exercise of discretion in favour of the appellants in view of the fact that they were satisfied with the mere declaratory decree which would be a paper decree. Therefore they had not filed any appeal against the unamended decree. Now when the decree has been amended directing delivery of possession, they will be substantially prejudic-ed and therefore this would be a fit case for extension of time under Section 5 of the Limitation Act. In this view of the matter, I overrule the preliminary objection.
16. In this connection, I might observe that there was no question of any negligence on the part of the appelants' counsel as might have been the case in Mariambai v. Hanifabai. 1966 MPLJ 739 = (AIR 1967 Madh Pra 107). This was a case where the decree was substantially amended by granting the relief of mere declaration. Therefore the appellants could be satisfied with a paper decree parsed in favour of the first respondent. For this reason I extend time under Section 5 of the Limitation Act, as the appellants could have sufficient cause in failing to file an appeal against the unamended decree.
17. As regards the question of invalidity of the appeal before the first appellate Court, it is, no doubt, true that an appeal presented by a person who is not the guardian-ad-litem or on the authority of a person who is not the guardian-ad-litem would be totally invalid. But if such an appeal comes to be presented and if no objection is raised and a decree happens to be passed, then it is not open subsequently to the other side to contend that the presentation of the appeal was null and void and the decree should be treated as a nullity.
It is true that Niyogi J. in Ganesh v. Govind, ILR (1944) Nag 270 = (AIR 1944 Nag 78) expressed the view that such presentation will be void ab initio. But I might observe that if no objection is raised and the appeal proceeds, in that event it is not open to the other party to turn round and say that all proceedings should be treated to be null and void. This was the view expressed by Pollock J in Sulaiman Pir Mohammad v. Abdul Shakoor, AIR 1940 Nag 99. This was also the view expressed by a Full Bench of the Allahabad High Court in Raj Behari Lal v. Dr. Mahabir Prasad, AIR 1956 All 310 (FB) which was followed by my brother, Shiv Dayal J. in Tulsiram Vaishya v. Shyamlal Ganpatlal 1960 MPLJ 281 = (AIR 1960 Madh Pra 73). The fact, of this presentation was noted by the learned appellate Judge in his final judgment. In all propriety he should have given an opportunity to the appellants to rectify the error.
18. In this connection, I might observe that the mistake was committed on account of the action of trial Court itself. Kashiram who has purported to become appellant No. 2 is in fact the guardian-ad-litem of the first appellant. Kashiram in his own right has no right to file an appeal. He had filed an application for permission to act as guardian-ad-litem on 28-6-1956. The plaintiff had proposed Ramsingh's mother Udibai as the guardian-ad-litem. The trial Court specifically appointed Kashiram as the guardian-ad-litem. In spite of that order the record was not corrected and the trialJudge in his judgment described Mt. Udibai as the guardian-ad-litem of the minor, Ram singh. A certified copy of that judgment was supplied on the basis of which the appeal came to be filed in the first appellate Court. As such, the mistake was on the part of the trial Judge himself in incorrectly describing the guardian-ad-litem in his judgment. On the principle of actus curiae neminem gravabit, no party ought to be made to suffer on account of a mistake of the court.
The mistake would not have arisen if the record had been corrected or if the trial Judge himself had not incorrectly described Mt. Udibai, the mother, as guardian-ad-litem in the judgment itself. Under these circumstances, when the appeal had been allowed to proceed and no objection was taken by the other side about the presentation of the appeal, the learned appellate Judge, in my opinion, did not act rightly in entertaining that objection suo motu. At any rate, under the circumstances, it should have been held that the invalid presentation of the appeal was a curable irregularity and the appointed guardian-ad-litem could be allowed to come on record. In fact, he has come on record in the present appeal. Therefore, disagreeing with the learned appellate Judge, I hold that the appeal could not be considered to be void ab initio. Therefore the first appellate Court was competent to grant the first appellant the necessary relief which was actually granted to the other transferee. Bhaosingh.
The same considerations will apply to the transfer in favour of the first appellant's father Haridas as may be applicable to the sale in favour of Bhaosingh. The first respondent has no semblance of a title, right or interest to the suit property. On the other hand, Ayodhya Prasad as the sole surviving coparcener is fully competent to deal with it in any manner he likes and the alienations made by him cannot be challenged by the first respondent on any ground whatsoever.
19. As a result of the discussion aforesaid, this appeal succeeds and is allowed. The decree of the first appellate Court is modified and the first respondent's suit is dismissed in its entirety so far as the first appellant is concerned. However, under the circumstances. I direct that there shall be no order as to costs throughout which shall be borne as incurred. Leave for filing Letters Patent Appeal is refused