JUDGMENT
1. Under what circumstances a consent decree passed against a minor can be avoided by the minor? Is it open to him to take up the contention that the next friend or the guardian ad litem who .represented him was negligent and therefore the decree passed against him should be set aside? If yes, what should be the degree of negligence or would it be sufficient to show negligence silmpliciter on the part of the next friend or guardian ad litem? These are some of the questions which have cropped up in this first appeal.
2. The appellants-original plaintiffs filed suit for declaration to the effect that the property of Ward No, 6 of Surat own and registered at Nondh No. 1950 is ancestral property and that they have interest in the same by birth. They also prayed for declaration that they are in actual possession of the property and the consent decree passed in Special Suit No. 92 of 1968 (in which plaintiffs 2, 3, 4 and 5 were defendants and were represented by guardian ad litem appointed by the Court) be declared to be against the interest of the minor plaintiffs and not binding on them and that the same cannot be executed against them. The plaintiffs also prayed for determination of their share in the suit property and for partition. Defendants 1 and 2 who are plaintiffs of special suit No. 92 of 1968 (in which plaintiffs 2,3,4, and 5 were defendants and were represented by guardian ad litem appointed by the court) be declared to be against the interest of the minor plaintiffs and not binding on them and that the same cannot be executed against them. The plaintiffs also prayed for determination of their share in the suit property and for partition. Defendants 1 and 2 (who are plaintiffs of special suit No.92 of 1968) contested the suit on facts as well as on law points. The other defendants who are relations of the plaintiffs have substantially supported the suit filed by the plaintiffs. The trial court dismissed the suit as per its judgment and order dt. May 5, 1977. Hence the appeal by minor plaintiffs 2, 3, 4 and 5 represented by their mother plaintiff 1.
3. The pedigree is mentioned in the Schedule to the plaint. One Harkishandas Balubhai who was the main man had two sons, Hasmukhlal and Kantilal – defendants 3 and 14 respectively. Minor plaintiffs 2, 3 and 4 are the children of Hasmukhlal, original defendant 3. Mirnor plaintiff 5 is the grandson of Hasmukhlall Defendant 3) and son of Arvindlal Hasmukhlal, defendant 4. Plaintiff 1 is the mother of plaintiffs 2 to -5 and wife of defendant No, 3.
4. Hasmukhlal Harkishandas and Kantilal Harkishandas, -defendants 3 and 4, were carrying on business in partnership in the name of Arvindlal Hasmukhlal and Brothers since the year 1960. The property in dispute is situated on ancestral land. On that land an old ancestral house was standing. That house was pulled down and a new house was constructed from the funds contributed by the aforesaid firm of Arvindlal Hasmukhlal and brothers. The amount so contributed by the firm was debited in the name of Ylarkishandas Balubhai, the main an of the family and father of defendants 3 and 14. The amount was shown as loan advanced to him. On the ground floor the business of the firm was carried on and the firm paid Rs. 200/- as and by way of rent which was being predited in the account of father Harkishandas Balubhai towards the amount of loan advanced to him.
5. The firm had business dealings with defendants 1 and 2 herein who are plaintiffs of special civil suit No. 92 of 1968. As per the extracts of books of accounts produced on record (Exhs. 238 to 242 by Kantilal Harkishandas, defendant 14), defendants 1and 2 (plaintiffs of Special Suit No. 92 of 1968) were entitled to claim Rs. 89,999/- from the aforesaid firm of Arvindlal Hasmukhlal & Brothers. By letter dt, Aug. 31, 1967 (Exh. 201) Hasmukhlal and Kantilal (defendants 3 and 14) admitted that they had inspected their account and they were liable to pay Rs, 89,303.29 ps. to defendants 1 and 2. By letter dated Mar. 31, 1967 an amount of Rs. 84,96 1.01 ps. was admitted. The amounts are credited in the books of accounts of the firm which are produced at Exhs. 180 to 187. On record it is shown that the debts were incurred for the export business and for purchase of certain other goods. Since the firm had incurred loss and was not in a position to pay the debts of defendants I and 2, the house was sold to defendants I and 2 by conveyance deed dated Sept. 5, 1967 for consideration of Rs. 89,999/-.
6. An agreement to sell was also executed by defendants 1 and 2 in favour of defendants 3 and 14 to the effect that they would resell the property for a consideration of Rs. 99,999/-. One year’s time was fixed for payment of consideration and for execution of the document. Defendant 3 and 14 did not get the property reconveyed Within the stipulated time. Hence defendant 1 and 2 filed special suit No. 92/6.8,on Nov. 30, 1968 against the present plaintiffs and against defendants 3, 4, 8 and 14 and also against other heirs of defendants 3 and 14., The, suit was based on title, The prayer, was for recovery of possession of property and for someone profits at the rate of Rs.500/- per month together with the cost of the suit. In that suit defendants 3 and 14 appeared and filed written statement and contested the same on facts as well as on law points. Both of them were represented by lawyers.
7. The present plaintiffs being minors, application was submitted for appointing guardian to defend them in the suit, Defendant 3, Hasmukhlal could not be served with valid notice. Similarly defendant 4 Arvindlal Hasmukhlal did not take summons of valid notice and he did not give any reply to the bailiff. When the bailiff tried to serve summons on plaintiff 1-Bai Lilavati she was not available at the house. As per the report of the bailiff (Exh. 210) it is clear that the bailiff had made several attempts to serve vali notice on Hasmukhlal (defendant 3) and Arvindlal (defendant 4). Similarly vali notice could not be served upon Bai Lilavati, mother of minor plaintiffs and who is plaintiff I herein. This is evident from the bailiff’s report produced at Exhs. 210, 213 and 206. After a period of about ten months from the date of filing of the suit when all attempts to serve valid notice upon the natural guardians failed, defendants 1 and 2 applied to the court to appoint clerk of the court as guardian ad litem. After hearing the parties the court passed order appointing clerk of the court as guardian ad litem of the minor plaintiffs herein. Defendants 5, 6, 10 and 11 i.e. minor Tejhasha, minor Jigisha, minor Bhagish and minor Binita were not born at all at the time of the aforesaid suit and therefore they were not parties to the suit. Minor Dinuben, daughter of Hasmukhlal (defendant 3) was represented by guardian ad litem appointed by the court and minor Lala Ca Devendra Kantilal and minor Shakuntla Kantilal, defendants 19 and 20 were represented by their brother Vasudev Kantilal, defendant 16 herein..
8. Special suit No. 92 of 1968 was filed on Nov, 30, 1968. Defendant 3 Hasmukhlal Harkishandas (defendant 3 herein also who has died during the pendency of the preferred suit) had filed written statement on Aug. 1, 1969. The guardian ad litem appointed by the court made several attempts to take instructions for filing written statement from natural guardians and from other relatives of the guardians. But due to total lack of cooperation he could not file written statement. The guardian ad litem applied to the court for grant of further time for filing written statement. Ultimately, the court rejected the application. Thereafter there being not her alterative, the guardian ad litem filed purshis stating therein that he had no instructions on the basis of which he could file written statement. In application Exh. 220 dt. Sept. 30, 1970 the clerk of the court Le the guardian ad litem of the minor plaintiffs stated that Kantilal Harkishandas, (defendant 14) had given a draft of compromise and the parties to the suit were negotiating for compromise of the suit. Thereafter the suit was compromised. An application Exh. 194 signed by defendants 3 and 14 for themselves and for and on behalf of other minors and also signed by clerk of the court as guardian ad litern for and on behalf of minor defendants 2, 4, 5 and 7 was submitted before the Court praying that permission to compromise the suit be granted. The court granted permission and the suit was compromised as per the compromise purshis Exh. 195. It is signed by Hasmukhlal Harkishandas, father of minor plaintiffs 2, 3. 4. It is also signed by, clerk of the court as guardian ad litern of plaintiffs 2, 3, 4 and 5, Advocate Shri B. R. Vakil signed the compromise purshis for and on behalf of defendant 4 (Arvindlal Hasmukhlal) and others with power to compromise. As stated hereinabove the compromise was entered into after the court granted permission to compromise the suit an behalf of the minors as it was in their interest. As per the compromise, defendants 1 and 2 herein i.e. plaintiffs of that suit gave up their claim for mesne Profits which as per the plaint had become due for a period of about 26 months and came to the extent of Rs. 13,000/-. As per the compromise the defendants of that suit were to retain possession up to July 31, 1971 and they were to vacate and hand over the suit property to present defendants 1 and 2. It was also agreed that no mesne profits were to be paid by the defendants for a period up to July 31, 1971. Thus the plaintiffs of that suit i.e. defendants 1 and 2 herein, agreed to forgo further amount of Rs. 3,0001- to Rs. 3,500/-. The Court recorded the compromise and passed decree accordingly.
9. According to the plaintiffs when the aforesaid decree was sought to be executed sometime in the month of Oct. 1971 they came to know about the decree having been passed and hence the present suit for declaration and injunction as stated here in above. The suit has been contested by defendants 1 and 2, the plaintiffs of special suit No. 92 of 1968. Rest of the defendants belonging to the branch of Hasmukhlal have practically sided with the plaintiffs and tried to support the claim of the plaintiffs. Other defendants belonging to the branch of Kantilal appear to be indifferent. In fact the present suit is filed by the persons belonging to the branch of Hasmukhlal, who has died on Oct. 6, 1973, pending the suit.
10. On the basis of the rival contentions raised by the parties the trial court framed as many as fourteen issues and came to the conclusion that the suit was maintainable and plaintiff 1 was the legal guardian of rest of the minor plaintiffs. As regards the property in dispute, the trial court held that the land on which the house is constructed was ancestral land, but the super structure thereon was constructed by the firm of Arvindlal Hasmukhlal and Brothers; that all the members of the family had interest in the same and at the same time all the members were liable to pay the debts created by the firm of Arvindlal Hasmukhlal and Brothers since the debts were created in the interest of the joint family. The trial court further held that defendants 3 and 14 (Hasmukhlal and Kantilal) had applied the funds of the firm for the benefit of all the members of the family; that the plaintiffs failed to prove that defendants 3, 4, 8 and 14 – Hasmukhlal Harkishandas, Arvindlal Hasmukhlal, Dashrathlal Hasmukhlal and Kantilal Harkishandas – had entered into immoral or illegal transactions with defendants 1 and 2; that the amount was borrowed by the firm for the legal necessity of the family business. The trial court held that there was no collusion between defendants 1 and 2 i.e. plaintiffs of special suit No. 92 of 1968 and rest of the defendants of that suit; that the agreement dated January 28, 1971 executed by and between defendants 1 and 2 on the one hand and defendants 3 and 14 on the other hand was independent one and it had no connection with the consent decree; that there was collusion between the plaintiffs of the present suit and defendants 3 to 20; and that the plaintiffs failed to prove fraud as alleged and also failed to prove negligence on the part of guardian ad litern appointed in the suit, The suit was dismissed by the trial court as per its judgment and decree under challenge in appeal.
11. By filing the present suit the decree is challenged by some of the minor plaintiffs. In para 35 of the judgment the trial court rightly came to the conclusion that the decree passed against the minor is voidable at the instance of the minor and not void. Therefore, for the purposes of the present proceedings the case of minor plaintiffs 2 to 5 only was required to be considered and the court was required to decide as to whether the decree passed against them is legal and valid or the same can be avoided by the plaintiffs on the ground alleged or otherwise.
12. The appellants-plaintiffs have challenged the legality and validity of the judgment and decree passed by the trial court on various grounds. However, in a proceeding challenging the consent decree, the scope of .inquiry by the court is very limited. The trial court did examine the questions raised on merits also, but in our view the scope of inquiry by the court should be confined to the aspects of fraud and/or gross negligence on the part of the guardian representing the minor. Even so we may indicate that the findings arrived at and the reasoning given by the trial court with regard to the minor’s liability for debts incurred by defendants 3 and 14 (i.e. Hasmukhlal and Kantilal) are eminently just and proper. We are broadly in agreement with the findings of the trial court that the partnership business carried on by the defendants 3 and 14 was the joint family business and the debt was incurred by the partnership firm for the benefit of the joint family and the house was constructed from the funds contributed by the firm and it was constructed on the ancestral land. This aspect has been elaborately discussed by the trial court in para 44 of the judgment. We do not think that there is any Infirmity in the reasons given and the findings arrived at by the trial court.
13. The learned counsel for respondents I and 2 has contended that the consent decree can be challenged only on the ground of lack of jurisdiction of the court or that it was obtained by fraud or collusion and not on the ground of negligence on the part of the guardian. The submission is made relying on the decision of Full Bench of the Bombay High Court in the case of Krishnadas Padmanabharao v. Vithobha Annappa, AIR 1939 Bom 66. However, in view of the decision of the Supreme Court in the case of Bishundeo Narain v. Seogeni Rai, AIR 1951 SC 288, this contention raised on behalf of respondents I and 2 cannot be accepted. In the aforesaid decision the Supreme Court has held to the effect that the compromise which affects a party can be set aside by a minor on single ground of unfairness to him if it can be shown that the decision is unfair and unjust. Thereafter the Supreme Court has observed (at p. 283)
“The rule, however, does not apply to decrees if the minor is properly represented before the court and the decree is as binding on him as on the adult parties, unless the minor can’ show fraud or negligence on the part of his next friend or guardian ad litem”.
14. In view of the aforesaid decision of the Supreme Court, minor plaintiff can raise the question as to
(i) whether the minor was properly represented before the court;
(ii) was there fraud or was there negligence on the part of the next friend or guardian ad litem.
15. Thus as per the settled legal position minor plaintiff can, in addition to the ground of fraud, also take up the ground of negligence on the part of next friend or guardian ad litem. Similar view is taken by other High Courts in the following decisions :
(1) Chatrati Sriramamurthi v. Official Receiver, Krishna, AIR 1957 Andh Pra 692 . (2) Vaidyanath Sahay v. Rambadansingh, AIR 1966 Pat 383, (3) Narayan Namboodiripad-v. Gopalan Nair, AIR 1960 Ker 367.
16. It is evident that in the case of Bishundeo Narain (AIR 1951 SC 280) (supra) the Supreme Court merely indicated that over and above fraud, negligence of guardian ad litem or next friend of minor can also be a ground in favour of the minor to avoid the decree. But the question-what should be the degree and nature of the negligence which may entitle the minor to avoid the decree-did: not come up before the Supreme Court and the same remains to be examined by the Court.
17. The Civil Procedure Code deals with; the procedural rights of parties. It does not; confer any substantive rights on any of the, parties. The Code lays down certain principles! regulating the procedure for conduct of proceedings in court. The basic idea is that the procedure should be just, fair and:, reasonable and it should be consistent with the principles of natural justice as well as~; equity and good conscience.
18. In conformity with the aforesaid underlying principles, the provisions of 0. 32 and particularly of R. 7 of 0. 32 of C.P. Code: have been enacted. With a view to protect, the persons under disability by necessary implication a duty is cast upon the court to see that the interest of minors is protected. What is insisted upon is the representation in fact and substance and not formal representation on paper. Insignificant lapses or trivial defects would not ordinarily entitle the minor to avoid the decree. In order to successfully avoid the effects of decree, minor; must prove the following facts :
(1) that though he was represented by a guardian in the suit, the guardian was negligent in conducting the suit;
(2) that such negligence resulted into loss of right which would have been successfully assorted if the suit had been properly, conducted or resided with ordinary care and prudence;
(3) that the guardian had neglected to do what was plainly his duty or omitted to do something which any man of ordinary prudence would have done;
(4) that the negligence was so serious as to Justify inference that his interests were not at all protected; and
(5) that though he was represented in form in effect he went unrepresented at the trial.
19. In the case of Chatrati Sriramamurthi v. Official Receiver, Krishna, AIR 1957 Andh Pra 692, Division Bench of the Andhra Pradesh High Court has inter alia observed as follows (at p. 695) :
“The negligence of the guardian must be so serious or of such a character as to justify the inference that the minor’s interests were not at all protected and in substance, though not in form, the minor went unrepresented at the trial”.
We are in respectful agreement with the aforesaid view expressed by the Andhra Pradesh High Court which has also taken: into consideration the aforesaid decision of the Supreme Court in the case of Bishundeo Narain (AIR 1951 SC 280) (supra). In above view of the matter the Full Bench decision of the Bombay High Court cannot be followed and as observed here in above it stands impliedly overruled by Supreme Court.
20. In the light of the aforesaid principles the facts of this case be examined. It is contended on behalf of the appellants that the guardian ad litem did not file written statement though an amount of Rs. 100/as and by way of cost of the lawyer was deposited in court; that the guardian ad litem filed application (Exh. 218) seeking time to file written statement, but thereafter. ultimately; filed pursis (Exh. 221)declaring that he had no instruction; that there was no justification for submitting an application seeking permission for compromise, and that there was nothing to show that the compromise arrived at was in the interest of the minors. Simple statement that it was in the interest of minor was not sufficient. In this connection it is inter alia submitted that the court appointed clerk of the court as guardian of the minors and three different persons-one Mr. D. M Desai~ another Mr. Merchant and lastly Mr. J. P. Christy-represented the minors and therefore the minors’ interest could not be properly represented and all the three persons acted with negligence.
21. It may be noted that the father of minor plaintiffs (Original defendant 3 who died during the proceedings of the suit was very much a party to the suit and he was not ready to act as guardian of the minors. It has come in evidence and the trial court has held that even ‘vali’ notice sought to be served upon the mother of the present minor plaintiffs could not be served upon her. Therefore there was no other alternative for the court but to appoint clerk of the court as guardian ad litem. What is required to be seen in such cases is – did the guardian ad litem fail to point out any vital and material circumstance to the court before seeking leave to compromise the dispute between the parties? After all it is the duty of the court to protect the interests of the minors. It is the court which requires assistance so that interests of :minors can be protected. Therefore inquiry ,should be – has the court been misled either by suppressio veri or suggestion falsi?
22. In the instant case defendants 3 and ,114 (i.e. Hasmukhlal and Kantilal) were represented by lawyers and they had filed written statement, contesting the suit filed by the plaintiffs. It is evident that they had adopted delaying tactics. The vali notice could not be served upon the natural guardians. The guardian ad litem was appointed by the court after hearing the parties. That guardian (clerk of the court) was rendered helpless by the natural guardians adopting an attitude of non-cooperation with him. But he kept the court informed at each and every stage. As and when there was talk of compromise he brought the same to the notice of the court (Exh. 220). Thereafter the Court has examined the compromise pursis (Exh. 223) and granted permission to compromise the suit.
23. Simply because the written statement was not filed on behalf of the minors it cannot be said that the guardian ad litem had acted with grave negligence. At all material stages, the guardian ad litem had disclosed the facts before the Court. The suit was filed on Nov. 30, 1968. For a period of little over two years no substantial progress could be made on account of non-co-operative attitude adopted by the natural guardians of the minors. Ultimately when the natural guardian of the minors entered into compromise with defendants 1 and 2, the original plaitiffs of Special Civil Suit No. 92 of 1968, this fact was brought to the notice of the Court. Not only ,that, Hasmukhlal, father of minor plaintiffs and natural guardian also signed the compromise pursis. The Court permitted the same. In above view of the matter it cannot be said that the guardian ad litem was negligent, much less grossly negligent, so a to entitle the minors to avoid the binding nature of the decree.
24. The learned counsel for the appellants sought to point out the following defects
(1) Clerk of the Court applied for minors Sukhdev, Sanjay, Sumitra and Shobhna and that there was no signature of Clerk of the Court in Exh. 194 i.e. application for permission to compromise.
(2) That the guardian ad litem Vasudev Kantilal has not signed at all on behalf of defendants 12 and 13.
(3) That Exh. 223 – consent terms has been signed by Vasudev as party but the same is not signed by guardian ad litem by defendant 13.
(4) That there is no affidavit of the guardian stating that the compromise was in the interest of minor nor there was any certificate to the same effect.
On the basis of the aforesaid defects it cannot be said that the minors were not represented at all or that they were represented in form and there was no representation in substance. The application has been signed by Hasmukhlal, defendant No. 3, father of minors. As far as the alleged defects with respect to representation of minor defendants 12 and 13 are concerned it may be realised that they have not come forward to challenge the decree and they are not plaintiffs in this suit. Therefore the alleged defects are of no significance. On the basis of the aforesaid defects it cannot be said that the Court was misled and/or there was gross negligence on the part of the guardian ad litem. almost amounting to collusion or fraud.
25. The learned counsel for the appellants submitted that defendants 3 and 14 (Hasmukhlal and Kantilal respectively) were not guardian ad litern and yet they applied on behalf of the minors for seeking permission to compromise. However, Hasmukhlal being the father of minor plaintiffs happened to be the natural guardian. The application seeking permission to compromise was signed by father and natural guardian of the minors. It was also signed by the guardian ad litem appointed by the Court. Therefore, it cannot be-said that there is any serious defect, which would entitle the minors to avoid the decree.
26. The learned counsel for the appellants submitted that there was collusion between deceased Hasmukhlal Harkishandas, defendant 3 and Kantilal Harkishandas, defendant 14 on the one hand and defendants I and 2, plaintiffs of the former suit, on the other hand. This is sought to be substantiated on the ground that immediately on the basis of compromise an agreement was entered into between defendants I and 2 and defendants 3 and 14, i.e. Hasmukhlal and Kantliai, that the property would be reconveyed to defendants 3 and 14, for consideration of Rs. 1,30,000/- and the time specified for execution of sale deed was up to July 31, 1971. The trial Court held that this agreement has been executed between the parties after the decree, and consent decree cannot be connected with the same. We are broadly in agreement with the reasons given and the finding arrived at by the trial Court.
27. Even otherwise be it noted that the original debt was around R. 89,000/-. The sale deed dt. Sept. 5, 1967 is of Rs. 89,999/-. Thereafter the property was agreed to be reconveyed for an amount of Rs. 99,999/-. The defendants 3 and 14 did not get the property reconveyed. Therefore the suit on the basis of title was filed for recovery of possession some time in Nov. 1968. It was resisted by defendants 3 and 14, by filing written statement, and by other defendants! also. These defendants were represented by lawyers. Several delaying tactics were adopted by the defendants i.e. by the natural guardians of the present plaintiffs. It appears that it had become almost impossible for the Court to proceed further with the suit for a period of about two years or more. The natural guardians were not coming forward to act as next friends or guardian ad litem. The present plaintiffs mother could not be served with vali notice. From the entire conduct of the previous suit it appears that right from the beginning the defendants adopted delaying tactics. The compromise took place some time in the month of January, 1971. The proceedings do not show that compromise between the parties was something which had taken place in hurry or that it was hushed up matter.
28. After matured deliberations the parties arrived at the figure of consideration which is mentioned in the respective documents. The defendants were to retain possession of the property up to July 1971. The plaintiffs of that suit, i.e. defendants I and 2 herein, had foregone about Rs. 13,000/of mesne profits. Moreover, they were not to charge mesne profits up to July 1971. That means in all they had agreed to forego about RS. 16,000/- Further, they were not getting immediate vacant possession of the property. This is a very vital circumstance even while considering the valuation of that property. Having regard to all these factors it cannot be said that there was collusion as alleged and the consent decree has been passed in collusion.
29. The plaintiffs examined one Shri Parikshit Manilal Talati, approved valuer, with a view to show that the consideration, agreed upon between the parties was inadequate. However, if one scrutinises the evidence of the valuer it becomes clear that he claims to have visited the property some time in the year 1976. He valued the property at Rs. 2,84,000/- in the year 1967 vide Exh. 231 and at Rs. 3,74,000/vide Exh. 232. But the, valuation is made on the basis of the inspection made in the month of Dec. 1976. Cross-: examination of the valuer clearly shows that he even did not know as to how many storeys, were there in the building. Moreover, the: question as to possession of the property is very much important while valuing the property. Property worth lacs of rupees may become totally worthless if the possession! thereof is not to be handed over immediately to the purchaser. In the instant case what has’ happened with defendants I and 2?. One may even ask, ‘did they purchase property or did, they purchase litigation?’. It may be that there may be some marginal difference in the, market value of the property and the actual consideration represented in the transaction. But on the basis of some marginal difference in the valuation of the property it cannot be’ said that there was collusion and the’ consideration represented in the transaction is grossly inadequate.
30. Analysing the evidence of Bai Lilavati, plaintiff I (Exh. 163) and the evidence of Arvindlal Hasmukhlal, defendant 4 (Exh. 164.) and that of Dinuben Hasmukhlal, defendant 13 (Exh. 226) the trial Court has rightly come to the conclusion that the plaintiffs have failed to prove that there was collusion or fraud between defendants 1 and 2. original plaintiffs of Special Civil Suit No. 92 of 1968 and defendants 3 and 14 i.e., Hasmukhlal and Kantilal and other heirs and legal representatives of Hasmukhlal and Kantilal who were already on record. On the contrary the trial Court has come to the conclusion that the present suit was filed by the plaintiffs in collusion with Hasmukhlal, deceased defendant 3 and other defendants. Bai Lilavati, plaintiff 1, in her deposition admitted that she did not give any instruction what so ever to the lawyer for drafting the plaint She did Dot know anything about the contents of the plaint. She signed the plaint at the instance of her husband.
31. Similarly evidence of Arvindlal Hasmuklilal, defendant 4, also reveals the same story. He deposed that he had signed the papers in the earlier suit as he was instructed to sign the same by defendants 1 and 2, i.e. plaintiffs of original suit. This statement can never be believed. Though he is defendant in the suit he himself has not filed any written statement, but he has entered the witness box with avowed object to help, the plaintiffs. Thus he has tried to do something indirectly which he could not do directly. He himself could not have challenged the consent decree to which he was a party. The consent purses in earlier suit has been signed by the lawyer of this witness under, authority to compromise. Similarly, evidence of Dinuben Hasmukhlal also does not inspire confidence.
32. In para 37 of the judgment the trial court has elaborately discussed the evidence,of these witnesses, and has come to the conclusion that it cannot be said that ‘the present suit is filed by Bai Lilavati mother of the plaintiffs on her own behalf and for the benefit of minors. The trial Court, has held that the present suit in effect and substance car be said to have been filed by Hasmukhial, deceased defendant 3. He himself could not have challenged the decree on the ground of negligence or alleged fraud. Thus on overall appreciation of evidence of the plaintiffs it is abundantly clear that the suit is filed by the persons belonging to the branch of Hasmukhlal, deceased defendant 3, and the minors have been used as convenient tools to avoid the decree.
33. The appellants-plaintiffs contended that the original transaction dated Sept. 5, 1967 was that of mortgage and not that of’ sale. The trial Court, on appreciation of: evidence, came to the conclusion that it was’ a transaction of outright sale. The original, document has not been produced on record by the plaintiffs. If the plaintiffs asserted and came forward with the case that the transaction was that of mortgage and not’ that of sale it was for the plaintiffs to produce the document on record. it was a registered document and even it defendants I and 2,: the original plaintiffs of the previous suit, did: not produce the same, defendants 3 and 14 and other defendants could have obtained certified copy of the same and produce the same on record. The contention that the averments made in para 10 of the written statement filed by defendants I and 2 in this suit amount to admission of the fact that the transaction was that of mortgage cannot be, accepted. Averments in the pleadings are required to be read in its entirety and in proper context. One or two sentences cannot be picked up out of context and in that manner Leadings cannot be interpreted. If one reads the averments in para 10 of the written, statement filed by defendants I and 2, in proper context it is difficult to spell out that there is any admission on the part of: defendants I and 2 to the effect that there was a condition of re-sale in the sale document itself. On this point the best evidence was that of the original sale document itself or the certified copy thereof. The plaintiffs have given no reason whatsoever as to why they could not and did not produce the certified copy of the sale deed dt. 5-9-1967. In para 43 of the judgment the trial Court has discussed this aspect. We are in broad agreement with the reasons given and the conclusion arrived at by the trial Court on this point.
34. The learned counsel for the appellants placed reliance on the decision of the Supreme Court in the case of Smt. Indira Kaur v. Sheo Lal Kapoor, AIR 1986 SC 1074 and contended that even if agreement to reconvey the property is embodied in separate document the transaction can be said to be that of mortgage and not that of sale. The aforesaid contention cannot be accepted. In fact, after referring to the pernicious practice adopted: by some money lenders, the Supreme Court has observed as follows (at page 1078)
“As the plaintiff himself has preferred to; enforce the agreement for specific performance, it is not necessary to examine the question as to whether or not the real nature of the transaction was mortgage, though it was given an appearance of a transaction of a sale.”
Thereafter the Supreme Court has not examined the question as to whether S. 58(c) of the T. P. Act would have disabled the plaintiffs from claiming relief of redemption. No such principle as contended by the learned counsel for the appellants has been laid down by the Supreme Court in the aforesaid decision.
35. No other contention is raised. There is no substance in the appeal. In the result the appeal fails and the same is hereby dismissed with costs.
36. The learned counsel for the appellants at this stage requests that the appellants wish to challenge the legality and validity of the aforesaid judgment and decree before the Supreme Court and therefore prays that the interim relief granted by this Court earlier be continued for some time. The learned counsel for respondents 1 and 2 objects to this request being granted. However, in the facts and circumstances of the case it is directed that the interim relief granted earlier shall continue up to October 31, 1988.
37. Appeal dismissed.