1. The facts giving rise to this Letters Patent Appeal are these. Moman was the owner of the property in dispute, measuring 55 Bighas 1 Biswas. On 25th July, 1955, he sold the same for Rs.2500/-to Suba Ram, his brother Manphul Singh and one Chandar Bhan. This sale led to a suit for pre-emption, which was filed by Gurcharan Singh on 24th July, 1956. On 3rd October, 1956, Amar Singh, Gulab Singh and Rattan Singh, the three minor sons of Moman, brought a suit, through their mother Shrimati Ram Piari, for possession of this land against the vendees on the usual allegations that the land was ancestral and there was no legal necessity for their father to sell the same. It was alleged that on the death of their father on 23rd May, 1956, they got entitled to the possession of the land. On 12th December, 1956, Ram Piari, acting as the guardian of her minor sons, effected a compromise with the vendees, on the basis of which the suit was dismissed and the parties were left to bear their own costs. On 18th March, 1957, the preemption suit filed by Gurcharan Singh was decreed against the vendees. On 25th October, 1960, the minor sons of Moman brought another suit through Budh Ram, their grandfather as their guardian, for possession of the land on the same grounds as were alleged by them in the first suit. This suit was instituted against the vendees and the pre-emptor Gurcharan Singh.
2. Two of the various pleas taken by Gurcharan Singh were that the previous judgment dated 12th December, 1956, was a bar to the present suit filed by the minor sons of Moman and that Section 41 of the Transfer of Property Act was applicable to the case as he had taken possession of the land after getting the pre-emption decree in his favour. It may be stated that Ram Piari, the mother of the plaintiffs, was made a defendant, because Gurcharan Singh had also taken the plea that she was a necessary party to the suit.
3. This suit was dismissed by the trial Court on the 7th June, 1961, holding that the previous judgment acted as res judicata and was a bar to the institution of the present one. On 24th November, 1961, the learned Additional District Judge, Karnal, accepted the appeal of the plaintiffs and held that the suit was not barred by res judicata, as there was no decision of the first suit on merits. He further held that there should have been an issue struck by the trial Court on the question of gross negligence and collusion of the guardian of the plaintiffs in the first suit. He, consequently, remanded the case for fresh trial to the lower Court and gave permission to the plaintiffs to amend their plaint and raise both the pleas regarding the gross negligence and the collusion of their guardian in the previous suit.
4. After the amended plaint and the written statement had been filed, several issues were framed by the trial Court. On 21st March, 1962, the trial Court decreed suit, except with regard to Khasra Nos. 665 and 672, because they were held to be non-ancestral, qua the plaintiffs. It was found by the trial Judge that the collusion of the guardian was not established, but it had been proved that the said guardian was guilty of gross negligence in prosecuting the first case. The land, except the two Khasra numbers mentioned above, was held to be ancestral and it was further found that the sale effected by Moman was without necessity.
5. Against this decision, Gurcharan Singh filed an appeal, which came up for hearing before the Additional District Judge. On 23rd April, 1963, he dismissed the same, after confirming the findings of the trial Court. It may be mentioned that before the learned Additional District Judge, an additional plea was raised by the appellant to the effect that the only decree that the trial Court could pass was one of the declaration that the decree dated 12th December, 1956, was not binding on the minors, with the result that their old suit would be revived from the state when the compromise was effected. The learned Additional District Judge allowed this plea to be argued, but repelled the same by observing that the parties in the two suits were not the same, because in the first one Gurcharan Singh, the pre-emptor, was not a party.
6. Against the decision of the learned Additional District Judge, Gurcharan Singh, pre-emptor, filed a second appeal in this Court, which was dismissed by Kaushal, J. on 24th March, 1969. The learned Judge held that the proceedings in the first suit stood completely wiped off on account of the finding given by the Courts below that there was gross negligence on the part of Ram Piari, the guardian of the minors, in prosecuting the same and, therefore, the second suit filed by the minors, through another guardian, was competent. Before the learned Single Judge a new plea was taken by Gurcharan Singh that on Moman's death, his property devolved on his four heirs, namely, the three minor sons and the widow Ram Piari and, therefore, the minor plaintiffs could only get a decree for possession qua 3/4th of the property of the deceased. This contention was accepted by the learned Judge and the plaintiffs were granted a decree for possession of 3/4th of the property left by Moman, excepting of course the two Khasra numbers mentioned above, which were held to be non-ancestral qua them. Ram Piari, the mother, who had been impleaded as a defendant in the suit, was also granted a decree qua the remaining 1/4th of the estate of Moman. Against this decision, the present plaintiffs Appeal has been filed by Gurcharan Singh.
7. The first point raised by the learned counsel was that after the finding that Ram Piari was guilty of gross-negligence in effecting the compromise in the previous suit, the Courts below should have set aside the compromise and revived the old suit from the stage when the said compromise was arrived at. The second suit for the same relief and on the same allegations was not competent.
8. There is no merit in this submission. It is undisputed that a minor can avoid a decree passed against him on the ground of gross-negligence on the part of his guardian-ad-litem, even if he has not succeeded in proving fraud or collusion on the part of such guardian. The plea taken by the minors in the second suit was that their mother had not properly prosecuted their first suit and they had been adversely affected by this act. She was guilty of gross-negligence. She ignored their rights and effected a compromise in collusion with the vendees and that necessitated the filing of the second suit for the same relief. The pre-emptor was not a party to the first suit, but when the minors brought the second suit, pre-emptor's suit had been decreed in the meantime and, therefore, he was also impleaded as a defendant. The vendees and the pre-emptor raised all possible pleas in defence of the second suit with the result that a number of issues were struck by the trial Court. It is significant to mention that Gurcharan Singh never took up the point that the plaintiffs can only get a decree passed in the first suit was not binding on them with the result that the old suit would be revived from that stage. The evidence was lead on all issues by the parties and after a regular trial, the trial Court as already mentioned above, holding that the plaintiff's mother was guilty of gross-negligence in prosecuting the first suit. It was for the first time that Gurcharan Singh took up the present plea before the learned Additional District Judge in appeal, who rejected the same after observing that the parties were not the same in both the cases.
After the decision in the second suit had gone against Gurcharan Singh, it did not lie in his mouth now to say that the second suit was not competent and the first suit should have been revived from the stage when the same was compromised. As already mentioned above, he was not a party to the first suit and no authority had been cited by the learned counsel that in these circumstances the second suit was not competent. There are rulings to the effect that if a compromise has been effected without the sanction of the Court in a case where the minors are involved, then the said compromise should be set aside and the suit tried on merits. The present is not a case of that kind. Here the position taken by the plaintiffs was that the first suit had not been prosecuted properly by their guardian who was guilty of gross-negligence. Under these circumstances the minors brought the second suit for the same relief, impleading the vendees as well as the pre-emptor, and the various pleas set up by the defendants in the second suit were fully tried, and in this state of affairs it cannot be said that they were in any way prejudiced. As a matter of fact, Gurcharan Singh never took up the present position even in the written statement filed by him. Besides, he was not a party to the first suit and even if that had been revived, he would not have gained thereby. There is no valid reason whatsoever for him to raise a point of this kind at this stage when the decision of the second suit on merits has gone against him.
9. The second contention raised by the counsel for the appellant was that the learned Single Judge could not grant a decree for possession of 1/4th share of Moman's property in favour of Ram Piari, even if the plaintiffs were entitled to 3/4th of the property in dispute and the remaining 1/4th should have remained with the appellant.
10. In find no force in this submission as well, because apart from anything else, the learned Single Judge had modified the decree passed by the lower Appellate Court primarily on the ground that Moman had died after the enforcement of the Hindu Succession Act, 1956, with the result that on his death, his property devolved by succession on his three sons and the widow in equal shares and, consequently, the three sons were only entitled to 3/4th of the property, and the remaining 1/4th belonged to their mother. It is however, proved from the record that Moman did not die after the enforcement of the Hindu Succession Act, 1956, because he died on 23rd May, 1956 and the Hindu Succession Act came into force on the 17th June, 1956. On his death, therefore, his property under the customary law developed on his three sons and not the widow.
11. Before parting with the case, I may mention that the learned counsel also attempted to argue two other matters. One was that the 2nd suit was not maintainable during the minority of the plaintiffs and the other was that when the compromise was made with the leave of the Court, the question of benefit or loss to the minors could not be raised in a separate suit.
12. Both these questions involve determination of facts and were never agitated in any of the Courts below. They cannot be allowed to be raised for the first time in Letters Patent Appeal. It may also be stated that two of the plaintiffs are now majors and only one of them is a minor. It may further be mentioned that on the record there is nothing to show that any leave had been granted by the Court when the compromise was effected in the first suit, though an application had been made for that purpose.
13. In view of what I have said above, this appeal fails and is dismissed. In the circumstances of this case, however, I leave the parties to bear their own costs in this Court.
Gopal Singh, J.
14. I agree.
15. Appeal dismissed.