Skip to content


Mary Threys Fernando Vs. C.i. Philip - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKerala High Court
Decided On
Case NumberA.S. No. 220 of 1954
Judge
Reported inAIR1958Ker175
ActsCode of Civil Procedure (CPC) , 1908 - Order 32, Rule 3 - Order 41, Rule 22
AppellantMary Threys Fernando
RespondentC.i. Philip
Appellant Advocate M.T. Paikeday and; M.N. Parameswaran Pillai, Advs.
Respondent Advocate T.N. Subramonia Iyer, Adv.
DispositionAppeal dismissed
Cases ReferredKhiarajmal v. Daim
Excerpt:
.....the result is the same. 489 (1) (h), and, on the strength of it, it was held that a reviver of the prior suit in circumstances like the present would be tantamount to restoring to file a suit already disposed of and adding to it parties who were not parties at the original trial. 644 (i), which dissented from the view of the madras high court expressed in the two cases referred to, and upheld the restoration of a suit in circumstances like the present. the learned judge could suo motu have restored the prior suit and proceeded with it in view of his decree in the subsequent suit, and, if] he could do that, we fail to see how a direction to that effect in the subsequent suit can be without jurisdiction. ' it seems to us that the privy council decision where, it will be noticed, the..........aggrieved with the direction of the court below that the 1st defendant be allowed to continue the prior suit from the date of issue of summons, and with its denial to her of past mesne profits.2. the property in suit, a house, belonged originally to the plaintiffs mother. (that is the plaintiff a case and we may assume it to be so for the present purpose although it would appear that in his written statement the 1st defendant contended that the property really belonged to the plaintiff's father, the 2nd defendant.the plaintiff's parents mortgaged it to a bank and the 1st defendant who got an assignment of that mortgage filed a suit, o. s. 64 of 1115, on the file of the district court, trivandrum and obtained the decree which has now been declared null and void by the same court. by then.....
Judgment:

Raman Nayar, J.

1. The appellant is a plaintiff who has been given the declaration, she sought, namely, that a decree obtained against her by the 1st defendant while she was a minor, and the execution, sale in pursuance thereof, were null and void as against her, as also the consequential relief of possession of the property in suit together with future mesne profits, but is nevertheless aggrieved with the direction of the court below that the 1st defendant be allowed to continue the prior suit from the date of issue of summons, and with its denial to her of past mesne profits.

2. The property in suit, a house, belonged originally to the plaintiffs mother. (That is the plaintiff a case and we may assume it to be so for the present purpose although it would appear that in his written statement the 1st defendant contended that the property really belonged to the plaintiff's father, the 2nd defendant.

The plaintiff's parents mortgaged it to a bank and the 1st defendant who got an assignment of that mortgage filed a suit, O. S. 64 of 1115, on the file of the District Court, Trivandrum and obtained the decree which has now been declared null and void by the same court. By then the plaintiff's mother was dead. Her father, the present 2nd defendant, was the 1st defendant in that suit while the plaintiff, a miner represented by her father as guardian, was the 2nd defendant.

3. The allegation in the plaint was that after the death of her mother, the plaintiff was not under the care and protection of her father, a person of dissolute habits, but was in fact under the guardianship of her maternal uncle. The appointment of her father as her guardian, in the previous suit, O. S. 64 of 1115, was therefore fraudulent, and the decree therein had been obtained by the present 1st defendant in collusion with the plaintiff's father.

It was not, however, on these allegations that the plaintiff succeeded but on the circumstance that, as Ext. D a certified copy of the 'guardian notice' issued to him in O. S. 64 of 1115, disclosed, the plaintiff's father had declined to accept the notice. His appointment as her guardian was therefore held to be illegal, and it followed that the plaintiff was not represented at all in the suit. It was on this ground that the court below declared that the decree, and the execution proceedings following the decree, were null and void and did not bind the plaintiff.

4. It will thus be seen that the whole thing was a mistake, more perhaps of the court than at, the present 1st defendant. There is nothing to show that the court was misled by the 1st defendant, and the argument that the 1st defendant should not be relieved of the consequences of his own fraud has no basis in fact.

Even, where there has been fraud on the part of a plaintiff, and a decree obtained by him is set aside in a subsequent suit on that score, courts have held the original suit revives and the plaintiff is entitled to a fresh disposal of that suit unless it is found further (in the subsequent suit) that his claim therein was false. See Nirsan Singh v. Kishuni Singh, ILR 10 Pat. 516 : (AIR 1931 Pat 204 (2) ) (FB) (A) and Sankara Pandia Thevar v. Abdul Rahman Rowther, (1957) 2 MLJ 101 : ((S) AIR 1957 Mad 512) (B). The case of an innocent plaintiff who is himself the victim of a mistake is an a fortiori case.

5. Whether, in circumstance like the present, the decree is set aside as against a particular person (which indeed was what the plaintiff prayed for in the present suit and which it was within the power of the court to grant) or whether it is merely declared null and void so far as he is concerned, the result is the same. In either case, the suit in which the decree was passed remains undecided so far as that person is concerned and there can be no question but that the plaintiff therein should be allowed to prosecute it to a finish.

We are unable to appreciate the argument that notwithstanding that the decree in the prior suit has been declared non est so far as the present plaintiff is concerned that suit is still to be regarded as having been finally disposed of as against her by that very decree and cannot therefore be continued. It seems to us that this case is eminently one in which to borrow the language of the Privy Council in Manohar Lal v. Jadunath Singh, ILR 28 All 585 (C) the proper course would be to remit the plaintiff to her original rights. As observed by Vivian Bose, J., in Lakhanlal v. Sitaram, AIR 1937 Nag. 165 (D).

'In cases of this kind the only position to which they (the parties) can be relegated with any semblance of equity is to allow the original proceedings to continue from the stage at which the minor would have been in a position to contest the claim against him.'

The parties will be placed, so for as may be, in the position in which they would have been if no fraud had been committed. In the Privy Council case the decree that was set aside was a consent decree obtained against a minor without the leave of court required by Section 462 of the old Civil Procedure Code (now Order XXXII, Rule 7). In the Nagpur case the prior decree was set aside on the ground that the minor was not properly represented in the suit, the vakalatnama of his mother, who purported to represent him, haying been obtained by fraud. In both the original proceedings were held to have revived. Monmohini v. Behari Shah, AIR 1936 Cal. 421 (E) is a case on all fours with the present case.

There as here, the prior decree was declared inoperative as against the minor (but was not actually set aside) because the minor was not properly represented in the suit, the person appointed as his guardian not having consented to the appointment. It was held that the suit in which the inoperative decree was passed could be revived as against the minor who had obtained the declaration in his favour in the subsequent proceeding.

6. It is nevertheless argued on the strength of the observation of the Privy Council in Rashid-Un-Nisa v. Muhammad Ismail Khan, ILR 31 All. 572 (F) (at page 582 of the report) to the effect that the appellant therein, a minor who was not properly represented in some prior suits, ''was never a party to any of these suits in the proper sense of the term'' that the present plaintiff was never a party to O. S. 64 of 1115. But the term which their Lordships were there construing was the term, 'parties to the suit,' appearing in Section 244 of the old Civil Procedure Code, now Section 47. The observation only means that a minor not properly represented is not a 'party to the suit' in the sense in which that term is used in Section 244 of the old Civil Procedure Code. It does not mean that a minor not properly represented must be regarded as never having been on the party array, and it seems to us that the effect of the decision has been correctly set out in the first paragraph of the head-note which reads as follows :

'The words, 'parties to the suit' in Section 244 of the Civil Procedure Code (Act XIV of. 1882) mean, persons who have been properly made parties in accordance with the provisions of the Code.'

We are unable to accept the argument that the present plaintiff was never a party to the previous suit; O. S. 64 of 1115, and that therefore there can be no question of the present 1st defendant continuing that suit against her.

7. It is no doubt true that in Eda Pon-nayya v. Jangala Kama Kotayya, 37 Mad L. J. 399: (AIR 1920 Mad 713) (G), a Bench of the Madras High Court appears to have understood the observation of the Privy Council just quoted in the same way as Mr. Paikday, the learned counsel for the plaintiff, would have us understand it, and, in that view, held that a decree passed ex parte against a minor not properly represented in the suit could not be set aside under the provisions of Order IX Rule 13 of the Civil Procedure Code.

If the minor was not a party at all, though nominally on the party array, there could be no question of his setting aside the decree, and the proper position for him to take would be that that decree was not binding on him. That was the holding there This decision was followed by a single judge of the same High Court in Arumuga Goundan v. Periavanjiappa Goundan, AIR 1924 Mad. 489 (1) (H), and, on the strength of it, it was held that a reviver of the prior suit in circumstances like the present would be tantamount to restoring to file a suit already disposed of and adding to it parties who Were not parties at the original trial. In this view the order of the trial Court restoring the prior suit to file was set aside.

8. With great respect we do not think that this is the correct position. As we have already indicated, the observation of the Privy Council on which it purports to be based does not seem to warrant it. A suit against a minor is instituted on the day it is filed, and not on the day on which a guardian is appointed for him which must necessarily be some time later.

No one, we suppose, would argue that if the period of limitation for a suit expires between the date of its institution and the date on which a guardian is appointed for the minor defendant, the suit would be barred. It is therefore difficult to understand how the restoration of the prior suit, and its continuance after the appointment of a proper guardian if the party concerned still happens to be a minor, is tantamount to the addition of a new party to the suit.

If that were so, a new party is added to a suit every time a guardian is appointed for a minor defendant. We are fortified in this view by the decision in Talib Ali v. Piarey Lal, AIR 1930 All. 644 (I), which dissented from the view of the Madras High Court expressed in the two cases referred to, and upheld the restoration of a suit in circumstances like the present.

9. Adopting the language of the Privy Council in the case already referred to and following its dictum in Khiarajmal v. Daim, ILR 32 Cal 296 (J) (at page 312 of the report) that the court had no jurisdiction to sell the property of persons who were not parties to the proceedings or properly represented on the record, and that against such persons the decrees and sales purporting to be made would be a nullity, courts in India, have no doubt said that a minor not properly represented in a suit must be deemed not to have been a party at all and that he can therefore ignore the decree.

That is only an emphatic way of saying that the decree is a nullity as against him and that he can ignore it in the same way as if he was never a party to the suit; indeed it implies that he was, in fact, a party. Nor can we agree with Mr. Paikaday, that in Khiarajmal v. Daim (J), the Privy Council used the term, 'persons who were not properly represented on the record,' as synonymous with the term, 'persons who were not parties to the proceedings.'' It is apparent from the facts of that case that the two terms were intended to apply to different classes of persons.

10. It is next argued that the court which tried the subsequent suit and declared that the decree in the earlier suit was not binding on, the plaintiff had no jurisdiction in so doing to direct the restoration of the prior suit. That, if it can be done at all, must be done by the court which tried the prior suit on application duly made to it. We see no substance in this argument. In the first place, it happens that, in this particular case, it was the same court that tried both the suits.

The learned Judge could suo motu have restored the prior suit and proceeded with it in view of his decree in the subsequent suit, and, if] he could do that, we fail to see how a direction to that effect in the subsequent suit can be without jurisdiction. That apart, if a court has jurisdiction to declare that a decree passed in a prior suit, whether by itself or by some other court, is not binding against a particular party and, if necessary, to set it aside, we should imagine that it must have jurisdiction to declarer what exactly are the rights of the parties in respect of the prior suit. No doubt in AIR 1924 Mad 489 (1) (H) which has already been referred to, the Privy Council decision in ILR 28 All. 585 (C), was read as meaning that a proper decree to pass in such a case would be one which said that the parties were remitted to their original rights without declaring that the earlier suit would have to be tried afresh. But it, would appear that what their Lordships of the Privy Council objected to in that case was that the decree of the Judicial Commissioner in appeal went too far in setting aside the compromises and decrees in the prior suits 'in their entirety', that is even as against parties who were sui juris and against whom they were properly obtained, and declaring that those suits would 'have to be decided afresh'.

Their Lordships therefore confined the decree to a declaration that the compromises and decrees were not binding upon the minor thus virtually restoring the decree of the trial court which had cancelled the prior decrees only as against the minor's l/5th share in the property. Their Lordships made a further direction remitting the minor to his original rights. With regard to what exactly this means, we respectfully agree with the following observation of Vivian Bose. J. in AIR 1937 Nag. 165 (D) at p. 166,

'Their Lordships in setting aside the compromise decree which had been passed against him stated that the minor 'is remitted to his original rights.' What can this mean except that they directed the original proceedings to continue from the stage at which the minor had a right to defend the suit. If they had meant to declare that the original suit was entirely wiped out as against the minor, they could easily have said so.'

It seems to us that the Privy Council decision where, it will be noticed, the direction for the continuance of the original proceedings was made in the subsequent suit, is authority both for the proposition that in a case like the present the prior suit should be continued, as also for the proposition that such a direction can be given in the subsequent suit declaring the decree in the prior suit to be null and void as against a particular party.

11. On the question of past mesne profits, which have been denied to the plaintiff, it is no doubt true that if, as the court below has found, the plaintiffs entitled to possession as a result of the declaration that the execution sale is not binding on her, it would follow that the 1st defendant's possession has been wrongful and that ho would be liable to pay past mesne profits to the extent to which they are not barred by time. But, although the 1st defendant has not appealed against the decree for possession, & that decree has therefore become final, the denial of past mesne profits to the plaintiff is sought to be supported on the ground that a decree for possession should not have followed. We are inclined to accept this argument, and we do. not agree with the learned counsel for the plaintiff that the 1st defendant is precluded from urging it by reason of the decree for possession against him having become final.

A respondent can always support the decree under appeal on grounds that have been found against him, and although a decree for possession makes possession thereafter by the judgment-debtor wrongful it does not necessarily imply that his past possession was so. In this case the property belonged to the plaintiffs mother. Under Section 19 read with Section 16 of the Christian Succession Act (Travaneore Act II of 1092) the plaintiff's father inherited a half share in the property on the death of her mother (although say reason of Section 24 his interest is limited to life) and only the other half was inherited by the plaintiff. It is not disputed that the decree and the execution sale in O. S. 64 of 1115 was binding as against the plaintiff's father, and therefore his half share lawfully passed to the present 1st defendant.

Therefore: the present 1st defendant was a co-owner with the plaintiff, and the utmost that the plaintiff could have legitimately demanded as a result of her success in the present suit, was a partition of her half share and on account of the income appertaining to that half share. She would not strictly be entitled either to possession of the entire property or to mesne profits as such. In this view, we consider that the lower court's denial of past profits calls for no interference.

12. In the result we dismiss the appeal withcosts.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //