1. In this Second Appeal, two points are urged by the appellant. The first is that his guardian (O.S. No. 258 of 1916) was guilty of gross negligence, and therefore, the decree in that suit is not binding on him; the second is that the arrangement under which the appellant was given a house was a family arrangement and the appellant is entitled to the benefit of such arrangement.
2. The plaintiff-appellant brought the suit for a declaration of his right to the plaint shop and to recover possession from the 1st defendant. The 1st defendant brought O.S. No. 258 of 1916, for the possession of the plaint property, against the plaintiff, as 2nd defendant, and his father as 1st defendant, alleging that the father had sold the property to him and that he was entitled to possession of the same. The 2nd defendant was represented by a Court guardian, as no proper guardian was available. The Court guardian, on the day the case was taken up, was absent and the suit was decreed ex parte. The present suit is for the purpose of recovering, from the plaintiff in O.S. No. 258 of 1916, the possession of the property, on the ground that the decree in that suit is not binding on the minor, by reason of the negligence of his guardian. The District Munsif found that the plaintiff's guardian in the previous Suit was guilty of negligence and that the decree in that suit was not binding on the plaintiff; but he found the second point against the plaintiff and dismissed the suit. On appeal, the Subordinate Judge held that the plaintiff's guardian in the previous suit was not guilty of negligence.
3. The admitted facts are that on the day the case came on for trial the plaintiff's guardian, who was a vakil of the Court, was absent and his vakil asked for time, which was refused. It is in evidence that the plaintiff's guardian had taken out subpoenas for the witnesses and had done everything to get the case ready for trial, but he himself was absent on that Hay. The Subordinate Judge holds that the fault was entirely on the part of the Court and there was no negligence on the part of the guardian. I am unable to agree with that conclusion. It was the duty of the guardian to have been present in Court for the purpose of informing the Court of the steps he had taken and of placing before the Court materials which could enable the Court to consider whether the request for adjournment was a reasonable one or not. The guardian's absence prevented his vakil from placing before the Court all the facts necessary in order to enable the Court to grant time, and this has led to the suit being decreed against the plaintiff. It is not every kind of negligence that would be a sufficient ground for setting aside a decree, or for declaring that the proceedings in Court are null and void; but where the guardian omits to do his plain duty and where by reason of such negligence a suit is decided against a minor, which would not have been otherwise decreed against him, it must be held that the guardian's negligence contributed to the Court proceedings in the manner it did. In this case, the fact that subpoenas had been taken out and that there were circumstances which prevented the witnesses from attending on the day of trial was only known to plaintiff's guardian and his absence on that day materially contributed to the course adopted by the Court. The Court is not supposed to be aware of facts which have happened in the office unless such facts are brought to its notice in open Court, and the opportunity for bringing such facts to the notice of the Court was lost on account of the absence of the plaintiff's guardian. In this connection, I may refer to an observation of the learned Judges in Punnayya v. Viranna ILR (1921) M 425 : 1921 42 MLJ 429
It must be such negligence as leads to the loss of a right which might have been successfully asserted if the suit had been defended with due care.
4. I hold that the guardian was guilty of gross negligence and, therefore, the decree in O.S. No. 258 of 1916 is not binding upon the plaintiff.
5. As regards the second point, the appellant's contention is that the plaint property was given him under a family arrangement. The plaintiff's grandfather died, leaving considerable property. His father and the other members of the family gave a muchilika to some respectable persons for the purpose of dividing the property among them. That muchilika is marked Ex. A. By Ex. B, another muchilika, the plaintiff's father authorised the panchayatdars to allot to the plaintiff the immoveable property that may fall to his share. The relevant words of the muchilika are:
Out of the moveable and immoveable properties that might be given towards my share, according to the said conditions, the immoveable properties alone may be given to my son, minor Dada Sahib. I shall have no right to or interest in them. I shall act as the guardian of the minor.
6. Ex. C is the award of the arbitrators; and the arbitrators set apart the plaint property to the plaintiff. The contention of the respondent's vakil is that the plaintiff was not a party to the arbitration and, therefore, he is not entitled to get any benefit under the award. No doubt the plaintiff was nota party, but his father, who was a party to the submission, asked the arbitrators to deal with his share in a particular way; and the arbitrators after consulting all the members of the family gave this particular property to the plaintiff. They also made provision for one Karim Bi, who was not entitled to share in the estate of the plaintiff's grandfather. Under the Mahomedan Law, the plaintiff was not an heir to his grandfather's property. The contention of the appellant is that this being a family arrangement, persons who are not parties to the arrangement, but who get some benefit under the arrangement are entitled to have that benefit. It is clear from the award that the arbitrators after consulting all the members of the family distributed the family property among the various members and made provision for the maintenance of widows, who were not entitled to be given maintenance under the Mahomedan Law. That being so, the question arises whether, under an arrangement like this, a person who would not otherwise be benefited and who is given some benefit under it, should be held to be entitled to such benefit. It is well settled that in the case of partition deeds and family arrangements, widows, mothers and other relations who would not be entitled to a share, but who are given some benefit under the arrangement are entitled to have the benefit of such arrangement. It is urged by the appellant's vakil that the arbitrators might be considered as agents of the plaintiff's father and the plaintiff authorised such agents to transfer his property to the plaintiff. The award has been registered, and if this argument is good, then, the award would amount to a conveyance of the plaint house to the plaintiff. But it is unnecessary to rely on this argument for the support of the appellant's case. I consider the arrangement evidenced by the award to be a family arrangement, in which the interests of all the members of the family were considered by respectable persons; and in consideration of the circumstances of what was beneficial to the members of the family, a certain arrangement was made, under which the plaintiff was given the plaint house. Such an arrangement cannot be considered to be invalid, merely on the ground that the plaintiff was not a party to the submission.
7. The respondent's vakil contends that this is not a case of trust and, that in creating a trust, a registered instrument would be necessary. The appellant does not rest his case on the ground that a trust was created in favour ofthe plaintiff. The plaintiff's father agreed to act as his guardian for the purpose of receiving the property and being in possession of it on behalf of the minor. The case in Hira Singh v. Ganga Sahai (1883) ILR 6 All 322 (P.C.) has no application to the present case. There, as their Lordships observe at page 328:
It did not appear that Hira Singh or any one having authority to act for him in that behalf had consented to be bound by the terms of the award. He was in possession before the arbitration, and continued in possession, and he made that possession and not the award the foundation of his claim to a partition. The award was produced by Debi Singh, who was indeed his witness, but, who proved that it was signed by Amin Singh and Ganga Sahai, in answer to a question by the pleader for the defendants. Hira Singh was a stranger to the submission, and was under no obligation to abide by the award, and consequently he could not avail himself of it.
8. In that case, the contention was that a member of a Hindu family who was deaf and dumb and who was not a party to the award was entitled to the benefit under the award, in that case, if some property had been set apart for the maintenance of the person who was deaf and dumb, then such an arrangement would have been upheld; but a person who was a stranger to the award and who did not consent to the submission could not claim the benefit under the award. Here the plaintiff was a minor and the arrangement by all the members of the family was for the benefit of the minor, on the ground that his father was leading an immoral and wasteful life. I find the second point in favour of the plaintiff.
9. In the result, the plaintiff will be entitled to a decree for possession of the suit property. I set aside the decrees of the Lower Courts and decree the plaintiff's suit with costs throughout.