1. Some of the senior members of an Aliyasanthana family mortgaged some properties of the family to the sixth defendant, but took them on lease from him for one year at a certain rent. The sixth defendant sued them in O.S, No. 580 of 1937 for six years' arrears of rent. They remained ex parte and there was a decree passed against them on 6th December, 1937. Some of the junior members of the family have now filed the present suit on 7th March, 1943, for a declaration that the said decree is not binding against them so far as it relates to the rent for three years before the suit was filed. The District Munsiff held that as the lease was only for one year and the lessees were in the position of tenants holding over after the expiry of the period, rent could be only on this basis and not on the basis of any provision contained in a registered lease deed and that therefore the sixth defendant was entitled to get a decree only for three' years' rent and not for six years' rent as he did get. The defendants in that suit were hence guilty of gross negligence. On this basis, the plaintiffs obtained a decree. But, on appeal, the learned District Judge while holding that the claim in O.S. No. 580 of 1937 for more than three years' rent was untenable, dismissed their suit on the ground that it was barred by limitation as it was brought more than three years from the date of the decree, the plaintiffs having failed to prove their allegation in the plaint that they came to know of the decree only a few months before they filed the suits. He applied Article 95 of the Indian Limitation Act.
2. Mr. K.Y. Adiga, the learned Advocate for the appellants, contends that Article 95 is inapplicable and he is right. Though there is a vague allegation in paragraph 5 of the plaint that the decree obtained by the sixth defendant against the plaintiff's family is fraudulent, the real ground for attacking the decree is found in paragraph 3, where it is stated:
They failed to put forward contentions on behalf of their family and were grossly negligent in not putting forward the plea of limitation in respect of the arrears of rent for the first three years claimed in that suit.
Gross negligence on the part of those who were sued in the previous suit is the real ground alleged for the relief sought ; and if this be so, it is clear that Article 95 has no application because it deals only with a case where a decree has to be set aside on the ground of fraud or where other relief is sought on the basis of fraud. To cases of gross negligence Article 120 will apply, as there is no article applicable.
3. This, however, does not mean that the appellants succeed ; they have to jump over another stile. A decree passed against the manager of a joint family cannot be set aside on the ground of negligence or gross negligence when it relates to family property, as it could be set aside in, the case pf a suit brought on behalf of a minor in respect of his separate property. This has been laid down in Krishnamurthi v. Chidambaram Chettiar : AIR1946Mad243 and the principle has naturally been extended to the case of a manager of an Aliyasanthana family. Mr. K. Y. Adiga urged that where the persons sued chose to remain ex parte altogether, there was no scope for the application of any theory of any representation of the family and the consequent binding character of the decree against the other members of the family. There is, however, no warrant for any such distinction between a case where the manager remains exparte and a case where the manager appears but does not put forward a good available defence. Negligence may consist as much in not defending the suit altogether as in not putting forward such a defence. Where the suit is against a person as a manager, the plaintiff intends that he should represent the family, and if he does not choose to appear at all, he does not cease to be a representative. The doctrine of representation does not really depend on what he does or omits to do ; it is really dependent on what the plaintiff intended and what was the capacity in which the defendant was sued. Notwithstanding the non-appearance of the manager, the decree would still be one against the family; and if what is alleged is only negligence or gross negligence, the decree is unassailable by the junior members of the family, whatever form the negligence might have taken so long as it does not amount to fraud or collusion. It is true that the learned district Judge has not dealt with this question of gross negligence ; but it is really unnecessary that there should be a remand of the appeal or that a finding should be called for, as there was no real evidence of any kind in the case and as the first Court found gross negligence in favour of the appellant. Moreover the appellant himself wanted his case to be dealt with on this basis so that he can steer clear out of Article 95 and bring himself within Article 120.
4. The second appeal is dismissed with costs. No leave.