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Duni Chand Tara Chand Vs. Ram Ditta Mall and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana
Decided On
Reported inAIR1949P& H20
AppellantDuni Chand Tara Chand
RespondentRam Ditta Mall and anr.
Cases ReferredMohammad Bakhsh v. Allah Din
Excerpt:
.....under article 227 of the constitution. - they did not seek any definite relief regarding the mortgage decree and the auction sale in favour of ramditta mal but it was mentioned in the plaint that since their mother who had been appointed their guardian ad litem and also the other guardian ad litem who was appointed in place of their mother when she failed to appear in court, were guilty of gross negligence neither the decree nor the sale was binding upon them. , are not satisfied, inasmuch as that the decree appealed from is not contrary to law, nor can it be said that it is otherwise erroneous or unjust. it was also argued that because of the gross negligence of the guardians in the mortgage suit, which consisted of their failure to raise proper defence, the decree in which the..........uncle of the minor sons of sant ram, instituted a suit against gurdit singh for having the mortgage decree set aside. the suit was dismissed and so was the appeal from the order of the trial court. on 15th november 1933 the mortgaged property was sold by the executing court in favour of ramditta mal. the sale was confirmed on 15th december 1933 and the auction purchaser obtained possession of the property sometime in 1934. duni chand and tara chand, two of the sons of sant ram brought the present suit on 11th june 1946 for possession of the property which was the subject-matter of the mortgage, on the allegations that the property was ancestral, that the mortgage was without consideration and amounted to a fictitious transaction. they did not seek any definite relief regarding.....
Judgment:

Teja Singh, J.

1. One Sant Ram of Amritsar mortgaged a house and four shops in favour of Gurdit Singh on 29th June 1926.

2. On 5th December 1931 Gurdit Singh brought a suit for the recovery of his debt by the sale of the mortgaged property. Sant Ram died during the pendency of the suit. His four minor sons including Duni Chand and Tara Chand were brought on record as their deceased father's legal representatives. After having obtained a final decree Gurdit Singh started execution proceedings on 21st April 1932. On this, Dina Nath, who is the maternal uncle of the minor sons of Sant Ram, instituted a suit against Gurdit Singh for having the mortgage decree set aside. The suit was dismissed and so was the appeal from the order of the trial Court. On 15th November 1933 the mortgaged property was sold by the executing Court in favour of Ramditta Mal. The sale was confirmed on 15th December 1933 and the auction purchaser obtained possession of the property sometime in 1934. Duni Chand and Tara Chand, two of the sons of Sant Ram brought the present suit on 11th June 1946 for possession of the property which was the subject-matter of the mortgage, on the allegations that the property was ancestral, that the mortgage was without consideration and amounted to a fictitious transaction. They did not seek any definite relief regarding the mortgage decree and the auction sale in favour of Ramditta Mal but it was mentioned in the plaint that since their mother who had been appointed their guardian ad litem and also the other guardian ad litem who was appointed in place of their mother when she failed to appear in Court, were guilty of gross negligence neither the decree nor the sale was binding upon them.

3. It was further mentioned in the plaint that Dina Nath who brought the previous suit as a next friend of the plaintiffs and their other two brothers had also been guilty of gross negligence in the conduct of that case and consequently the decision of that case too did not affect the plaintiffs' rights. The suit was resisted by both Ramditta Mal and Gurdit Singh on several grounds, the most important of which were that it was barred by time and the decree in Dina Nath's case operated as res judicata. The trial Sub-Judge found against the plaintiffs on the questions of limitation and res judicata and dismissed their suit. The plaintiffs have now applied to this Court for permission to prefer an appeal in forma pauperis. The respondents opposed the application and it is contended on their behalf that conditions of Rule 1 of Order 44, Civil P.C., are not satisfied, inasmuch as that the decree appealed from is not contrary to law, nor can it be said that it is otherwise erroneous or unjust.

4. The most important question is that of limitation. As regards Duni Chand plaintiff, it is conceded that whatever Article of the Limitation Act be applied, the suit in so far as it relates to him, is barred by time. So we are only concerned with Tara Chand plaintiff. It was urged on his behalf that since he was born on 12th September 1922 and his mother was appointed his guardian by the Guardian Court he became major on 12th September 1943 when he attained the age of 21 years and the Article applicable being Article 144 he had three years to bring the suit after 12th September 1943, by virtue of Section 6, Limitation Act. It was also argued that because of the gross negligence of the guardians in the mortgage suit, which consisted of their failure to raise proper defence, the decree in which the mortgage suit resulted was void and so was the auction sale, and consequently Tara Chand could ignore both the decree and the sale and pray for possession of the property treating the auction-purchaser as a mere trespasser. The respondents' counsel on the other hand argued that a decree passed against a minor who is represented by a duly appointed guardian ad litem, even though it is liable to be set aside on proof of gross negligence of the guardian, is not void and before it can be held to be ineffective upon the minor's rights it should be set aside by a proper suit. Learned Counsel further argues that the same procedure must be adopted for setting aside the sale which takes place in execution of a decree properly passed, and since limitation period for setting aside a Bale is one year under Article 12 (a), Limitation Act, the suit which was instituted more than one year after the plaintiff attained majority is clearly barred by time.

5. The applicants' learned Counsel cited a number of authorities but none of them helps him. The Pull Bench decision of the Lahore High Court in Iftkhar Hussain Khan v. Beant Singh A.I.R. 1946 Lah. 233 merely lays down that a decree passed against a minor can be avoided on proof of gross negligence of the guardian and when the option of having it thus set aside has been exercised by the plaintiff it cannot operate as res judicata. I do not find any support in the ruling for the proposition that such a decree is void or it can be treated as a mere nullity. Chhajjumal v. Multan Singh A.I.R. 1936 Lah. 996 related to a suit by a minor member of a joint Hindu family for possession of his share after avoiding a sale made by the manager of the family, and it was held therein that the suit was governed by Article 144. I do not agree with learned Counsel that the principles governing a private sale can apply to a decree or a court sale, the reason being that whereas a private sale, like every other contract, if not accepted by the other party cannot be given effect to by Courts unless it has been recognised by a decree or an executable order, the validity of the decree and the sale made in execution of the decree and confirmed by the Court are binding upon the parties to the decree and the execution proceedings. Hira Singh v. Qhulam Qadir A.I.R. 1918 Lah. 330 and Alam Din v. Allah Dad A.I.R. 1922 Lah. 447, relate to decrees and proceedings in which the minor defendants were not properly represented and so it was held that they were not bound by the decrees at all. It was urged by the applicants' counsel that they too were not properly represented in the mortgage suit, but this contention of his is belied by the clear statement of fact contained in para. 4 of their plaint, in which it is stated that at first their mother was appointed their guardian ad litem and when she became absent another person was appointed as the guardian. Of course, it is also stated in the paragraph that both the guardians were guilty of gross negligence but this is quite different from saying that neither of them was properly appointed. These cases, therefore, have no bearing upon the present case.

6. The same remarks apply to Pasumarti Payidanna v. Lakshminarasamma A.I.R. 1916 Mad. 33 wherein the defendant who was really a minor was shown as major. It was held that the minor who had no guardian ad litem appointed for her was not a party to the suit in which the sale was made, and not having been sufficiently represented by any one who was a party the sale was not binding upon her and did not require to be set aside. The case which appears to me to be in point is Mohammad Bakhsh v. Allah Din which was cited by the respondents' learned counsel. In that case, as in the present case, the minor was a party to the suit in which the mortgage decree was passed. Later on, in execution of the decree the house was sold. The minor brought a suit within three years of his attaining majority and it was contended on his behalf that he was entitled to ignore the decree and sale as he was not properly represented in that case, his guardian being guilty of gross negligence. It was also argued on his behalf that the decree was void and also the sale proceedings thereunder and the Articles applicable were Articles 142 or 144. In addition, two other pleas were urged on his behalf (1) that if the decree and sale were not void but were merely voidable on the ground of gross negligence on the part of the guardian, the suit should be considered as having been brought to Bet aside the decree, in which case it would be within limitation under Article 91 of the Act having been brought within three years of the plaintiff attaining majority, and (2) that the suit should not be considered a suit to set aside a sale in execution of a decree of a civil Court for which the period of limitation is one year, because Article 12 (a) applied only to sales consequent on proceedings in execution of simple money decrees and not to sales in cases where the decree itself provides for sale of the property.

7. The learned Judges repelled all these contentions and held that sale under a mortgage decree is a sale in execution of a decree under Article 12(a) and when the property of a minor is sold in execution of a mortgage decree passed against him during his minority, and a suit is brought by him after attaining majority for its possession, on the ground of the guardian ad litem's negligence, it should also have been brought for setting aside the sale for which limitation provided under Article 12 (a) is one year. Relying on this authority I hold that the plaintiff was bound to sue for the cancellation of the sale before he could obtain the relief regarding the possession of the suit property. Originally, the position taken up by the applicants was that whatever be the period for the institution of the suit and whichever be the Article applicable, the period of limitation was extended by three years because of their being minors at the time the cause of action accrued to them, but this matter was not pressed before us and it was in a way admitted by learned Counsel for the applicants that if Article 12(a) applied the extension for bringing a suit on the ground of minority would be confined to one year. Since the suit was instituted 'more than one year after Tara Chand attained majority I have no hesitation in holding that it is clearly' barred by time.

8. The result, therefore, is that the application must stand dismissed with costs.

Khosla, J.

I agree.


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