1. These two second appeals arise out of two original suits instituted, one (O.S. No. 414 of 1921) by the daughters of a deceased lady called Narasamma, and the other (O.S. No. 327 of 1921) by a son of the deceased Narasamma. The prayer in the first suit instituted by the daughters is to recover possession of the properties. The prayer in the suit brought by the son is to set aside the decree passed by the High Court in a prior second appeal and to recover his share of the properties.
2. The facts leading to these cases are these: The deceased Narasamma first married a Hindu and inherited certain properties from him. She subsequently married a Muhammadan and had by him three daughters who are the plaintiffs in O.S. No. 414 of 1921 and two sons, one of whom is the plaintiff in O.S. No. 327 of 1921. The reversioners to the estate of Narasamma's Hindu husband filed a suit, O.S. No. 194 of 1912, for a declaration that certain alienations alleged to have been made by her were not binding upon them. They subsequently applied to have their plaint amended by adding a prayer for possession of the properties. The amendment was allowed, and in the result the reversioners were given a decree for possession of the properties. While the appeal in the prior litigation was pending, Narasamma died. Along with Narasamma three other persons were party defendants in the prior suit. The first was her husband's eon by a prior wife, and the other two were her sons by the Muhammadan husband. Defendant No. 4 in that suit is the plaintiff in the present suit (O.S. No. 327 of 1921). On the death of Narasamma, an application seems to have been made orally to the Court by the plaintiffs to have the defendants NOS. 2 and 3 (respondents) brought on record as her legal representatives. Defendant No. 4 therein, namely, Mahboob Sahib, being then a minor, was represented by Narasamma and on her death respondent No. 2 was appointed as guardian ad litem for the said defendant No. 4 (respondent). The present suit by Mahboob Sahib is based on the main allegation that in the prior suit on the death of Narasamrna, necessary steps were not taken to bring the proper legal representatives of Narasamma, on record and that consequently, the decree and all subsequent proceedings should be taken to be null and void. In order to elucidate the circumstances in connexion with the prior proceedings, this Court called for the finding from the lower Appellate Court whether the then plaintiffs action in having continued the litigation with defendants Nos. 2 and 3 as the legal representatives of the deceased Narasamma was a bona fide act. The finding of the lower Appellate Court is this:
I do not, then, see any mala fides in stating that the legal representatives were respondents NOS. 2 and 3. I find, then, on this issue that proceedings in A.S. No. 87 of 1915 were continued bona, fide against respondents Nos. 2 and 3 as legal representatives of Narasamma, but that they were not so continued as against defendant No. 4.
3. The learned Advocate for the appellants in this second appeal argued that the finding of the lower Appellate Court meant that there was no bona fides in the matter of having brought only some defendants on record as the legal representatives of the deceased Narasamma in the prior proceedings. We do not understand the finding in that way. The facts make it clear that there could not have existed any want of bona fides on the part of the then plaintiffs in their having done so, As already remarked, along with Narasamma, three other persona were made party defendants in the appeal. Respondents Nos. 2 and 3 were brought on as the legal representatives of the deceased Narasamma, at the request of plaintiffs (appellants) in that case. No doubt, technically respondent No. 4 also ought to have been brought on record as a legal representative and a note made in the appeal memo, accordingly. It may have been a mistake on the part of the plaintiffs. But the question to be considered now is whether any fraud or mala fida has been proved on the part of the appellants in the prior case in not having brought respondent No. 4 also as the legal representative. We questioned the learned Advocate for the appellants to suggest and reason why the appellants in the prior case should not have brought respondent No. 4 also as a legal representative and whether there could have been any reason for their not doing so. Having regard to the fact that respondent No. 2 was brought on record as a legal representative and having regard to the fact that respondent No. 3 was admittedly one of the legal representatives, we do not see any reason why we should not accept the finding of the lower Appellate Court to the effect that the prior appeal was continued bona fide against respondents Nos. 2 and 3 as legal representatives of the deceased Narasamma. The estate of the deceased Narasamma must be taken to have been properly represented in the litigation.
4. It was contended by the learned Counsel for the appellants that the proper procedure would have been to bring all the children of the deceased Narasamma as her legal representatives, and that the absence of formal application to bring on legal representatives should be taken to vitiate all the subsequent proceedings. But this Court has held that in cases where the legal representatives are already on record, a mere note may be made to that effect in the records and that there need not be a formal application. Courts are not debarred from passing orders in such matters without formal written application, and the fact that the Court had no written application, but was moved only orally is no ground for holding that it had no jurisdiction to pass an order as in the present case. As we agree with the lower Appellate Court that the estate of Narasamma should be taken, in the circumstances, to have been properly represented in the prior appeal and as plaintiff is unable to prove any prejudice, we think that the plaintiff is not entitled to have the decree and the subsequent proceedings set aside on the sole ground alleged by him. This finding is enough for disposing of the present appeal.
5. But it was argued by the learned Advocate for the appellants that the guardian ad litem, respondent No. 2 in the prior case, was guilty of gross negligence in not having applied for review of the judgment passed by the High Court, After the decision of the High Court in the second appeal in question, a Full Bench of this Court held that a Hindu widow marrying Muhammadan forfeits her widow's estate in her Hindu husband's properties. It cannot be said that because there was a subsequent Full Beach decision of Superior Court of leading authority on a question of law, the prior judgment passed on a different view of law is not liable as a matter of course to be reviewed, much less can we say that the guardian is bound to incur expenses for applying for review in such cases. The lower Appellate Court has considered all the circumstances and has come to the conclusion that the guardian was not guilty of gross negligence. In coming to that conclusion it has also considered the fact that respondent No. 3 who was a major all along and whose interests were exactly similar to those of the present plaintiff took no such steps. The finding that there was no gross negligence should, therefore, be upheld for the purpose of this second appeal.
6. These are the main contentions urged by the learned Advocate for the appellant in this second appeal, and both the grounds failing, Second Appeal No. 757 of 1925 must be dismissed with costs.
7. In Second Appeal No. 1155 of 1924 which arises out of the suit brought by the three daughters, a special question was raised by the learned Advocate for the appellants based upon certain observations made by the lower Appellate Court that the plaintiffs' mother was estopped and consequently the plaintiffs' (daughters) also were estopped. But it is unnecessary to discuss the daughters' suit upon that ground. As the learned Counsel very properly admitted the result of enfranchisement by the Government in the name of Narasamma in 1906 would be to confer upon her absolute right to the properties; and in the subsequent litigation against her by the reversioners of her late husband to recover possession of the properties she ought to have pleaded that the said properties did not any longer belong to the estate of her husband; and, if for any reason she did not set up any such defence, it is not open to her daughters, as representing her, now to set up such a plea. The fact was that according to the law as understood at that time, enfranchisement of an inam in the name of a widow was understood to confer upon her only a life-estate, It was only some years later that the Privy Council decided that the enfranchisement in the name of a Hindu widow would confer an absolute estate on her. It is unfortunate that Narasamma had not the benefit of the Privy Council decision as to the effect of enfranchisement in the name of a Hindu widow, as she had not benefit of the subsequent Fall Bench decision on the question of Hindu Law mentioned by us as to the effect of a Hindu widow's marriage with a Muhammadan husband on the properties inherited by her from her Hindu husband: but the, same is no ground for holding that the previous decree passed in the suit against Narasamma should not be binding upon her daughters by the Muhammadan husband, i.e., the present plaintiffs. The dismissal of the suit of the daughters is accordingly correct and this second appeal also is dismissed with costs.