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Mahabir Prasad Vs. Sawai Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 324 of 1951
Judge
Reported inAIR1958Raj107
ActsCivil Procedur Code , 1908 - Order 32, Rule 3; Hindu Law
AppellantMahabir Prasad
RespondentSawai Chand and ors.
Appellant Advocate P.C. Bhandari, Adv.
Respondent Advocate C.L. Agrawal, Adv. for Respondents (Nos. 1 to 4)
DispositionAppeal dismissed
Cases ReferredEgappa v. Rarnanathan
Excerpt:
.....minors does his best in conducting the suit, but makes some mistake either by non-production of a relevant document or by the non-production of some oral evidence, and loses the case, it would render the greatest amount of uncertainty if the minors could be permitted later to reagitate the question on the ground that their guardian was negligent. suppose, in one of such cases the guardian does not employ the best counsel, or, suppose, the counsel makes a mistake in not putting a particular question to the opposite party, or, again, some procedure is not followed for one reason or another, it may ultimately turn out that this was the crucial point on which the decision turned......as legal representatives of mst. nanuri.the defendants in that suit denied execution of the khata by nanuri, and further pleaded that they were not the lega1 representatives of nanuri or of her husband govinda, and that the property in their possession had not come to them from nanuri or her husband govinda. it was also pleaded that they should not be held liable for the debt of nanuri.the plaintiff's case then was that the original debt was outstanding against govinda, husband of nanuri, and she had only renewed that debt by executing various khatas one after another till the last one, which was the basis of the suit. the civil judge dismissed the suit on the ground that the khata in dispute had not been proved to have been executed by nanuri and that it had not been proved that.....
Judgment:

1. This is a second appeal by the plaintiff in a suit for recovery of money.

2. According to the allegations in the plaint, one Mst. Nanuri, widow of Govinda, executed a khata on 28-7-1941, lor Rs. 353/- in favour of Lalchand, and his son Ram Chander. Ramchnder by himself and two minors Mahavir and Prahlad, sons of Rameshwar, under the guardianship of Ramchandra, instituted a suit for recovery of Rs. 480/-, which included the principal and interest on the khata executed by Nanuri, on 27-7-1944, in the Court of Civil Judge, Kotputli, against Sultan, Chandar and Bhawani as legal representatives of Mst. Nanuri.

The defendants in that suit denied execution of the khata by Nanuri, and further pleaded that they were not the lega1 representatives of Nanuri or of her husband Govinda, and that the property in their possession had not come to them from Nanuri or her husband Govinda. It was also pleaded that they should not be held liable for the debt of Nanuri.

The plaintiff's case then was that the original debt was outstanding against Govinda, husband of Nanuri, and she had only renewed that debt by executing various khatas one after another till the last one, which was the basis of the suit. The Civil Judge dismissed the suit on the ground that the khata in dispute had not been proved to have been executed by Nanuri and that it had not been proved that the said khata was in lien of the debt of her husband Govinda.

It was held that the defendants were in possession of the property of Govinda and were, therefore, his legal representatives. The suit was, however, dismissed. On appeal the Judicial Officer, Khetri, held that the khata had been proved to have been executed by Nanuri and although a document had been produced to show that Govinda had borrowed some amount from the plaintiff, yet the intermediary khatas or documents had not been produced to show that the khata executed by Nanuri was in respect of the debts of Govinda.

A request for an opportunity to produce the intermediary documents was rejected. On the other issue it was held that the defendants did not get any property from Govinda, but the property in their possession had come to them from Kasu as his heir.

The appeal was dismissed. The second appeal was also dismissed by the Raja Sahib of Khetri on 14-8-1946, on a finding that the debt in dispute had not been proved to have been taken by Govinda. The further allegations in the present suit were that the aforesaid dismissal of the suit had been brought about by the gross negligence of Ramchandra who acted as the guardian of the minor Mahabir Prasad, inasmuch as he did not produce the intermediary khatas to show that the last khata executed by Nanuri was only a renewal of the debt, which was taken by Govinda.

The plaintiff alleged thst he had come of age about a year ego, and, therefore, entitled to institute a fresh suit for recovery of the amount against Sultan, Chandar and Bhawani, end his claim may be reheard and decided. Ramchan-der was made a pro forma defendant.

3. The trial court held thst Ramchander, who acted for himself and as guardian for Mahabir Prasad was not grossly negligent in not producing the intermediary khatas, and the previous suit had also been dismissed on the ground that the defendants were not reversioners of Nanuri or heirs of Govinda, and no facts have been shown for considering that finding in the previous suit to be erroneous. It accordingly dismissed the suit on 29th July, 1950.

3a. On appeal, the learned Additional District Judge was of opinion that a minor can always sue for challenging a decree or order which could not have been passed, but for wanton, wilful or inexcusable neglect on the part of the next friend. It was held that the minor on attaining majority can sue for setting aside such decree. He, however, held that the non-production of the intermediate khatas was not so gross negligence as to amount to a clear violation of the duty cast upon him.

He also held that Ramchander himself was a plaintiff, and he was then acting as a Manager of the joint Hindu family, and that in the case of a Hindu family where all have rights, it is impossible to allow each member of the family to litigate the same point over and over again, and each infant to wait till he becomes of age, and then bring an action or bring an action by his guardian before, and where the leading member of the family had been acting either on behalf of minors in their interest, or if they were majors, with the assent of the majors, all the members of the family were bound by the result of the litigation. He dismissed the appeal by judgment dated 20-8-1951. The plaintiff has come in second appeal.

4. It is proved on the evidence of Umrao, P. W. 1, that Lalchand had three sons - Umrao, Ramchander and Rameshwar. Rameshwar died leaving two sons, viz. Mahabir and Prahlad. Umrao got separated several years prior to the suit. Lalchand, Ramchander and the two sons of Rameshwar, Mahabir and Prahlad, lived as members of a joint Hindu family, and while Lalchand was the Karta of the family for a number of years, Ramchander also looked after the affairs of the family in the old age of Lalchand.

The khata was in favour of Lalchand Ramchander. It is proved by a document produced by the plaintiff himself, copy of order dated 10-2-1943, in case Lalchand v. Raghunath, Suit No. 81 of St. 1999 - that Lalchand died on 3-12-1942. On these facts it is apparent that the previous suit was filed by Ramchander himself and as guardian of Mahabir Prasad and Prahlad, in which Ramchander was not acting merely as a guardian, but was also a karta of the joint family.

The principles which permit a minor to challenge a decree passed against him on the ground of gross negligence on the part of the guardian only apply to a suit which concerns property held by the minor in his own right. In the present case, another principle also comes in, and it is this that the managing member of the family represented the family, and he was acting on behalf of himself as well as the two minors.

If he had succeeded, the judgment would have enured for the benefit of Ramchander and the two minors, and if he failed the minors must also take the consequences. Lingangowda Dod Basangowada v. Basangowda AIR 1927 PC 56 (A). A case very near to the facts of the present case was decided by the Madras High Court viz., Krishnamurthi v. Chidambaram Chettiar AIR 1946 Mad 243 (B) in which it was held that:

'Where the father sues as the manager of the joint family the decree in that suit is binding upon the junior members of the family. The principle of the decision in Egappa v. Rarnanathan, AIR 1942 Mad 384 (C) does not apply to such a case & hence the junior members' suit to havo the decree set aside on the ground of gross negligence on the part of the father in conducting that suit is not maintainable. In AIR 1942 Mad 384 (C), it had been decided by that Court that a minor could sue to set aside a decree passed against him in a suit not only on the ground of fraud or collusion, but also on the ground of gross negligence on the part of his guardian in the suit, and that case was distinguished as above.

5. I am also not quite certain whether a guardian can be said to have acted with gross negligence when that guardian is himself the litigant along with certain minors and having committed some mistake tries his best to get it rectified, but is unable to succeed in his attempt.

Where a litigant acting for himself and as guardian for certain minors does his best in conducting the suit, but makes some mistake either by non-production of a relevant document or by the non-production of some oral evidence, and loses the case, it would render the greatest amount of uncertainty if the minors could be permitted later to reagitate the question on the ground that their guardian was negligent.

Suppose, in one of such cases the guardian does not employ the best counsel, or, suppose, the counsel makes a mistake in not putting a particular question to the opposite party, or, again, some procedure is not followed for one reason or another, it may ultimately turn out that this was the crucial point on which the decision turned.

In all such cases where the guardian himself is as much interested as the minor, and the guardian exhausts all the remedies that he considers available to him, it would, in my opinion, not be proper to permit the minor to challenge the decision of the case in any subsequent suit.

6. In my opinion the decision of the lowercourt is correct, and this appeal fails and isdismissed with costs.


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