JUDGMENT
1. This and the connected Appeal No. 50 of 1911 arise out of a suit brought by the plaintiffs-appellants for possession of shares in two villages, namely, Momaa Khurd and Sabra, and for certain house property situated in the former village. They also claimed a declaration that a decree obtained by the defendant Chhedu Singh against their father Rudra Singh, on the 19th of July 1908, and the proceedings held in pursuance of that decree are not binding on them, and are as against them null and void. Chhedu Singh, defendant, is the nephew of the plaintiff’s father, Rudra Singh, being the son of his brother, Umrao. Chhedu Singh brought a suit against Rudra Singh for partition of zemindari property situated in the two villages mentioned above and also of house property. To that suit the plaintiffs were added as defendants. A decree was passed in favour of Chhedu Singh, declaring him entitled to a half share of the property claimed and for partition of the house property and costs were also awarded to him. For the realization of those costs, the decree was put into execution and a great part of the property, now in dispute, was put up to sale and purchased by Chhedu Singh himself. Subsequently, he sold that property to the defendants, Beni Singh and Sri Ram. Decrees for rent were also obtained by Chhedu Singh against Rudra Singh, and. in execution of those decrees, some property was sold and the defendant, Husain Ali Khan, purchased it. In 1907, the plaintiffs brought a suit against Chhedu Singh and the purchasers of the property, for a declaration that they were the owners of a five-sixths share in the property now in dispute, other than the shares in the village Subra; that the decree obtained by Chhedu Singh was fraudulent and not binding on them and that the sale of the property in execution of that decree could not affect their interests. This suit was dismiss fed on the 13th of January 1908, apparently under Section 102 of the Code of Civil Procedure, 1882, on the ground that the plaintiffs did not appear at the hearing and the defendants, who were represented, did not admit the claim. Subsequently, Rudra Singh died, and thereupon the suit out of which this appeal has arisen was brought by the plaintiffs. The main ground of the claim is that the plaintiffs were not properly represented in the suit brought by Chhedu Singh, and that the decree in that suit was not binding on them, and must be deemed to be null and void so far as they were concerned.
2. The Court below has held that as regards the five-sixths share claimed in the previous suit, the present suit is barred by the provision of Order IX, Rule 9 of the Code of Civil Procedure of 1908, which corresponds with Section 103 of Act XIV of 1882. As regards the remainder of the property, it granted the plaintiffs a decree for a part of their claim. The judgment of the learned Subordinate Judge is far from satisfactory, and it is not easy to follow all the reasoning by which it is supported. It is not, therefore, surprising that both the parties are dissatisfied with it and have appealed against the decree. The plaintiffs in this appeal contend that; the Court below is wrong in holding that a part of their claim is barred by reason a of the dismissal of the suit brought by them in 1907. They urge that the cause of action for the present suit is not the same as the cause of action for the former suit, inasmuch as at the time when they brought that suit, they were in possession of the property, and that before the institution of the present suit, they were dispossessed from it.
3. If, as the plaintiffs contend, they were not properly represented in the suit brought by Chhedu Singh in 1901, the decree in that suit would, as against them, be a nullity. This was so held in Hanuman Pershad v. Muhammad Ishaq 28 A. 137 : 2 A.L.J. 615 : A.W.N. (1905) 229. If, on the other hand, the plaintiffs were substantial parties to the former suit and were properly represented in it by a guardian, the decree in that suit is binding on them; and, so long as it is not set aside, they would not be entitled to maintain the present claim. Therefore, the question whether -the dismissal of the former suit operates as a bar to the present claim, would depend mainly on the determination of the further question whether in the former suit they were properly represented. If, as we have said above, they were not so represented, the decree as against them being a nullity, the claim for a declaration that it is a nullity is superfluous and the present suit would be unaffected by the fact that the former suit was dismissed.
4. It appears that in the suit brought by Chhedu Singh, Rudra Singh was at first impleaded as the sole defendant. He objected that his sons had an interest in the property, and thereupon the plaintiff, Chhedu Singh, made an application to the Court praying that the minor sons of Rudra Singh, under the guardianship of their father, Rudra Singh, be added as defendants. The application contains a further prayer that “permission might be granted” after verifying the affidavit which was filed along with the application. This apparently refers to the usual affidavit made in support of an application for the appointment of a guardian ad litem and the permission sought refers to such appointment. From the decree which is printed at page 7 of the respondent’s book, it appears that the present plaintiffs, the sons of Rudra Singh, were added as defendants under an order, dated the 15th of April 1901. The learned Subordinate Judge holds that there is no evidence on the record to show that a formal order was made for the appointment of Rudra Singh-as the guardian ad litem of his minor sons, the present plaintiffs. It is clear that an order was made upon the application referred to above granting it, but we may accept the finding of the Court below” that no formal order was drawn up, appointing Rudra Singh as the guardian ad litem of the minors. It is, however, manifest from the fact that the application of Chhedu Singh, to which we have referred, was granted, that the Court sanctioned the prayer for the addition of the sons of Rudra Singh as defendants and for the appointment of Rudra Singh as their guardian od litem. That being so, this case closely resembles the case of Musammat Bibi Walian v. Banke Behari Pershad Singh 30 C. 1021 : 5 Bom. L.R. 822 : 7 C.W.N. 774 : 30 I.A. 182, decided by their Lordships of the Privy Council. In that case also it did not appear that a formal order had been drawn up for the appointment of a guardian ad litem, but their Lordships held that the absence of a formal order was no more than a mere irregularity. Therefore, if the plaintiffs were substantially sued in the previous suit and were effectively represented in that suit by their father, with the sanction of” Court, that would be sufficient to bind them. The suit brought by Chhedu Singh was contested by Rudra Sirgh, and it was after contest that a decree was passed. One of the grounds on which it is contended that the plaintiffs were not properly represented, and that their father, Rudra Singh, was not a fit person to be their guardian, is, that he was of unsound mind. The learned Subordinate Judge in the course of his judgment has remarked that Rudra Singh was proved to be a half idiot.” The only evidence on the record as to the mental capacity of Rudra Singh is the statement of a witness, Nathu. Singh, who said that Rudra Singh was “somewhat crazy.” The plaintiffs themselves in the suit brought by them in 1907, did not allege anything in respect of Rudra Singh’s mental capacity beyond this that he was of weak intellect. There is a good deal of oral evidence adduced by the defendants which shows that Rudra Singh was in full possession of his intellect; and from the manner in which he defended the former suit, claiming as he did that the property in which Chhedu Singh asked for a big share, was his self-acquired property, and denying that it was joint ancestral property, shows that he was not a man incapable of properly defending the suit. The remarks of the learned Subordinate Judge seem to us to have no sufficient justification. We fail to see that the interests of the plaintiffs in that litigation were not properly safeguarded, and that they were not properly represented. Chhedu Singh was claiming a half share in the property on the allegation that it was joint ancestral property–an allegation which is now admitted on behalf of the plaintiffs. If it was correct, Chhedu Singh was entitled to the half share which he claimed, and the other half belonged to Rudra Singh and his sons, the present plaintiffs. Rudra Singh denied that the property was ancestral and that Chhedu Singh had a half share in it. There was, therefore, nothing in that litigation in regard to which the interests of the plaintiffs were overlooked and not provided. Rudra Singh’s interests in that litigation were in no sense adverse to the interests of the plaintiffs, and from the nature of the defence set up by him, it is, as pointed above, clear that he was trying his best not only to guard his own interests but also those of his minor sons. We are, therefore, unable to hold that in the previous litigation the plaintiffs were in any way prejudiced or that they were not substantially represented. The decree in the previous suit was, therefore, binding on them; and so long as they could not on any other ground get it set aside, they could not avoid the operation of that decree.
5. In the suit which they brought in 1907 they alleged that the decree had been obtained fraudulently. The same allegation has been made in the present suit so far as that decree is concerned. So that the cause of action alleged in both suits in regard to the decree is the same. The Court below was, therefore, right in holding that the dismissal of the previous suit barred the present suit in so far as it related to the property which was the subject-matter of the claim in the suit of 1907. Furthermore as the decree in Chhedu Singh’s suit was, in our opinion, binding on the plaintiffs, the auction sale held in execution of that decree is equally binding on. him. Assuming, however, that the plaintiffs were not properly represented in the suit brought by Chhedu Singh, and that they are entitled to treat the decree in that suit as a nullity, the question would still arise whether the sale of the family property in execution of what must be deemed to be a decree against the father alone is binding on the plaintiffs and their interests in the family property. The learned Subordinate Judge in one part of his judgment says that it has not been proved that the property in question was the ancestral property of the plaintiffs. If we accept this finding, then the property could only bedeemed to be the property of Rudra Singh; and having been sold in execution of a decree obtained against him, it passed the whole of his interest to the purchaser. It was, however, the plaintiffs’ case and it was held in the suit of Chhedu Singh that property was ancestral property. Therefore, the property being ancestral, and it being the pious duty of the sons to pay their father’s debts not tainted with immorality, a sale for payment of such debts would bind the sons and their interests in the ancestral property, and would confer a complete title on the purchaser. It is not the plaintiff’s case that the decree obtained against Radra Singh for costs of the partition suit was tainted with immorality. On the contrary, as we have pointed out above, he was defending the interests not only of himself but also of his sons; and, therefore, it is impossible to say that the decree passed in that suit was a decree for a debt which it was not the bounden duty of the plaintiffs as Hindu sons to discharge. As the property has been sold for the realization of that debt and it has been purchased by the defendant, the plaintiffs are not entitled to claim any portion of that property from the purchasers. It is only on the ground of the debt being tainted with immorality that they could have claimed the property, but that is not their case; under these circumstances, no question of family necessity arises. From any point of view, therefore, the plaintiffs’ claim cannot succeed, and the Court below was, in our opinion, wrong in decreeing any part of it. The result is that this appeal fails. It is dismissed with costs.
