JUDGMENT
B.B. Ghose, J.
1. This is an appeal arising out of a suit instituted by the appellant for a declaration that the decree passed in a suit brought in the year 1912 for partition which was numbered 137 of 1912 and renumbered as 7 of 1920 was a nullity so far as she was concerned. The matter, shortly stated, stands thus : The property of which the partition was sought originally belonged to one Golam Ali Choudhury who died in the year 1295 B.S. corresponding to 1888. He had three wives, Azajannessa Khatun, Ijjatan-nessa Khatun and Jamidannesa Khatun. It is not necessary to state the names of all the parties concerned in this litigation : these will be found in the geneological table given at pp. 152-153 in the paper book of appeal from original decree No. 254 of 1922. The appellant is a descendant of Golam Ali Chowdhury by his first wife. There was a dispute among the members of the family that the second wife Ijjatannessa was not validly married to him under the Mahomedan law, she having been the sister of his first wife and the marriage having taken place during the lifetime of her sister.
2. We are not concerned with that dispute at present. The suit of 1912 was brought by a daughter of Golam Ali Chowdhury by his third wife for partition of the estate left by him. The present plaintiff was made defendant 17 in that suit. Proceedings went on for a considerable number of years. This lady, then defendant 17, was a minor at the time of the suit. The whole dispute arises with regard to the fact whether she was a minor at the crucial moment or not. It is alleged that the appellant Jamilennessa Khatun was born on 27th May 1898. On 20th March 1902, her father named Md. Hashein was appointed guardian of her person and property under the Guardians and Wards Act by the District Judge of Faridpur. Md. Hashein died on 13th May 1909. After his death it appears that no other guardian was appointed for that lady. The result, however, of the appointment of guardian under the Guardians and Wards Act was that under the Majority Act, the minority of the lady Jamilennessa Khatun was extended up to 21 years of age. When the suit for partition was brought in 1912 by Majidannessa the daughter of Golam Ali by his third wife, the present plaintiff was admittedly a minor. Her father’s mother Karimannessa who was also one of the daughters of Golam Ali by his second wife, the validity of whose marriage was in question, was appointed her guardian ad-litem. Evidently that lady had an interest adverse to that of the minor defendant Jamilennessa Khatun. Having realised that, she informed the Court of the fact and asked to be relieved of her office as guardian ad litem of defendant 17. She was removed and an officer of the Court was appointed guardian-ad-litem. But, as the learned Subordinate Judge observes, within four days of that appointment, one Md. Salem, the father’s brother of the infant Jamilennessa, was appointed guardian ad litem. This gentleman also had an interest adverse to that of the minor in the sense that he was interested that his mother should get a share in the property left by Golam Ali in which case the share of the infant would be diminished to a certain extent. Nothing, however, turns upon the fact of his being appointed guardian because on 28th April 1916, Md. Salem filed a petition in the partition suit alleging that-Jamilennessa Khatun had attained her majority in Falgoon preceding and he could no longer continue as guardianad-litem.
3. It may be mentioned that this gentleman was also a party defendant to the suit. Apparently, the learned Judge-required a petition from the infant herself who was alleged to have attained majority and a petition is on the record dated 2nd June 1916, filed on behalf of the lady defendant 17 stating that she had attained majority and she desired to continue the suit as sui juris with certain other prayers about giving her time forming written statement and so forth. This petition was also supported by an affidavit by Mr. Salem dated 5th Juno 1916 in which the correct date of the-birth of Jamilennessa Khatun was given as the 14th Jaistha 1305 corresponding to 27th May 1898 and it was alleged that she had completed her 18th year on the 14th Jaistha 1323 which corresponds to-some date preceding the date of the affidavit in the year 1916. The fact that the lady would not attain majority on her completing 18 years of age was lost sight of, and the lady was treated as if she was sui juris. As a matter of fact, under the law Jamilennessa Khatun did not attain majority till the 27th May 1919. It is not necessary to state the various details about the proceedings in the partition suit ; but a preliminary decree was made on 31st July 1916. The question now turns upon the fact that the lady was in the eye of the law an infant and she was not properly represented in the suit by a guardian ad litem duly appointed. It is contended that under the circumstances all the proceedings held from the 28th April 1926 in the partition suit are null and void so far as this defendant is concerned. The allegation of the plaintiff (in the suit out of which this appeal No. 58 of 1924 arises) is that she did not know of the various proceedings that were taken in the partition suit as she was living with her uncle and father’s mother whose interests were adverse to hers and she became aware of her legal right only after her marriage in the year 1921 when her husband informed her of the facts, and the suit out of which the present appeal has arisen was brought on 31st March 1922 for a declaration that the proceedings in the previous suit for partition of 1912, taken after the date of the removal of her guardian ad litem are null and void. Various issues were raised in the Court below but the Subordinate Judge really decided the suit upon issues 3 and 4, namely “whether the suit is barred by estoppel and res judicata” (issue 3) and
Is the plaintiff estopped from saying that the decree in Title Suit No. 137 of 1912 is not binding against her (Issue 4).
4. Before the lady brought this suit, she made an application in the partition suit under Section 151, Civil P. C , for the reliefs she asks for in her own suit. The Subordinate Judge dismissed her application and it seems to me rightly, because the questions raised would not come within the provisions of Section 151 of the Code. An application in revision was made in this Court which was rejected on the ground that the plaintiff had another and a fuller remedy. Then the plaintiff brought the present suit.
5. With regard to the question of res judicata, it is only necessary to observe that the present suit is for a declaration that the decree in the previous suit is null and void. The decree in the previous suit, if null and void, cannot operate as res judicata with regard to the present suit. If the decree is a valid one, the present suit fails without any reference to the rule of res judicata. The learned Subordinate Judge relies upon the case of Malkarjun v. Narhari [1901] 25 Bom. 337, and says that as the Court had jurisdiction in the previous suit to decide whether Jamilennessa Khatun had attained majority or not and as it had wrongly decided that she had attained majority, plaintiff is precluded from questioning that finding in the present suit. It seems to me that the reasoning of the Subordinate Judge is not correct and the present controversy is not covered by the decision of their Lordships of the Privy Council in the case of Malkarjun v. Narhari [1901] 25 Bom. 337, nor by the other cases of that type which the Subordinate Judge has cited. The question about the majority of the lady was not put in issue in the previous suit. Her real age was given there and in the petition of one of her guardians-ad-litem as I have pointed out, it was said that she had attained the age of 18 years only. As there was no decision of the Court on the question of the majority of the lady, there cannot be any application of the rule of res judicata. The Subordinate Judge has not dealt with the question of estoppel against the lady on the ground of her having made a representation in Court which was accepted by the Judge.
6. It has, however, been argued before us that there cannot be any estoppel by representation as against a minor. The decisions of all the Courts in India except those of the Bombay High Court are in favour of the view that the rule of estoppel laid down in Section 115, Evidence Act does not apply to the case of minors. The latest case on the point was decided by the Lahore High Court in the case of Khan Gul v. Lakha Singh A.I.R. 1928 Lah. 609, in which all the previous cases have been cited. But I do not think it necessary to discuss that point in the view I take in this case. The question of estoppel by representation under Section 115, Evidence Act, does not arise in the present case. The decision in this case depends upon the general principle of procedure that no decree can be passed against a minor without his being represented by a proper guardian ad litem. The Court throws its protection over a minor in any suit brought against him and even if the guardian ad litem enters into a compromise it is for the benefit of the minor. There is no question, and it has not been contested before us on behalf of the respondent that a decree passed against a minor without a proper guardian-ad-litem being appointed for him is a nullity : see Bashidunnissa v. Muhammad Ismail Khan [1909] 31 All. 572. But the judgment of the Subordinate Judge is sought to be supported on two grounds : first, that no decree should be made under Section 42, Specific Relief Act, declaring that the previous decree was a nullity because the plaintiff, if she so desires, may bring a suit for partition and claim any share in the property treating the former judgment as non-existent. I do not consider that there is any substance in that contention. There is the decree of the Court ; on the face of it, it is a good decree and it throws a cloud on the rights of the plaintiff, if she has any. And she is certainly entitled to remove that could in her title by having a declaration that the decree originally passed is a nullity as against her.
7. The second ground urged is of more substance. It is stated that this lady has approbated the decree and cannot reprobate it by the present suit. With regard to the question of approbation the learned advocate pointed out that by various petitions she had asked for certain allotments of the property and for money from the receiver for her maintenance according to the order of the Court and so forth. I do not think that those matters can be considered as approbating the decree. She was not bound to give up possession of the joint property. As regards asking for money for subsistence allowance, it may very well be said that she was making the best of a bad bargain and, instead of begging of other people for her subsistence, tried to get as much out of the joint property as the Court would allow. It is next pointed out that by a certain petition in July 1920 this plaintiff along with other defendants filed a petition giving a list of the properties which had belonged to their ancestor Ali Ahmed Chaudhuri, a son of Golam Ali Choudhury, and which had been sold away to different persons. At the end of the petition, after giving the shares of other persons who were parties to the suit, it was stated that the balance which remained was 8 gandas odd, which fact would go against the share which the plaintiff now claims. We are, however, not concerned whether the actual share now claimed by the plaintiff is her legitimate share or not, It may be that she is making an unreasonable claim but I do not find that there is anything in the petition which may be said to have affirmed the decree after she had attained majority. Further, no one can be said to affirm even a voidable contract, unless one knows the circumstances under which he was entitled to avoid the contract. Here, in my opinion, the matter goes further. If the decree was a nullity, then it could not be affirmed by anything that the plaintiff might have said. Of course, if it could be shown that the plaintiff had obtained an advantage to the detriment of any other co-sharer, it might be argued that this Court, in the exercise of its discretion, would not make a declaratory decree in favour of the plaintiff. But nothing like that has happened in this case. The plaintiff, if she has got money from the receiver for her subsistence has received less than what she says, she was entitled to and after the final allotment had been made of the property, she has never applied for taking possession of the allotment. In these circumstances, it cannot be said that the plaintiff was precluded by her act from claiming the relief that she is entitled to get
8. Another argument was addressed on behalf of the respondent by Mr. Banerjee that if we hold that the Subordinate Judge was wrong in his judgment we should remand the case for trial of the other issues. The only issue that requires to be tried is as to the age of Jamilennessa Khatun. An issue was raised on the question whether she had attained majority or not at the time when the preliminary decree in the partition suit was passed. The defendants, however, stated in their written statement that the date of birth of Jamilennessa ; Khatun was not 14th Jaistha 1305 corresponding to 27th May 1898 but she was really born in 1303 B.S. (1896-1897). That is, what is stated in para. 42 of the written statement. Taking that to be the correct date of the birth of the lady, she will still be below 21 years in 1916 when the preliminary decree was passed. It is, therefore, not necessary to remand the case for taking evidence on any question of fact.
9. The judgment and decree of the Subordinate Judge must, therefore, be set aside and the suit of the plaintiff decreed. And it is declared that the preliminary decree made in the title suit No. 137 of 1912 on 31st July 1916 is null and void as against the present plaintiff and all subsequent proceedings taken in that suit from April 1916 and after that date must be set aside as null and void as against her.
10. The result, therefore, is that the original suit No. 137 of 1912 is restored so far as the plaintiff is concerned and the case sent back to the lower Court to proceed with it as from the date of the dismissal of the guardian ad litem of minor Jamilennessa Khatun, defendant 17, in that suit i.e. from about April 1916. The Subordinate Judge will accept a fresh written statement of Jamilennessa Khatun in suit No. 137 of 1912 and proceed to try the case as regards her interest. It is, however, unnecessary now, as she has attained majority, to have any guardian ad litem appointed. If she succeeds in obtaining a greater share than what was given to her by the preliminary decree in the above suit the sharers of other parties would of course be affected.
11. The appellant is entitled to her costs of this appeal as well as of the Court below hearing fee being assessed at 15 gold mohurs.
12. Appeals Nos. 254 and 320 of 1922 arise out of Suit No. 137 of 1912 which was renumbered as 7 of 1920. It is not necessary for us to give a detailed judgment in these two appeals, because in our judgment in appeal No. 58 of 1924, we have set aside both the preliminary and the final decree of the Court below, and have directed that the suit be remanded to the trial Court for hearing from the stage where it was as from April 1916. The Court below will accept a fresh written statement of Jamilennessa Khatun defendant 17, and proceed to try the case as if no decree had been passed, as regards her interest. We make no order as to costs in these two appeals. The cross-objection was not pressed. This is dismissed without costs.
Panton, J.
13. I agree.
