JUDGMENT
Bopanna, J.
This appeal by Defendant-7 is directed against the judgment and decree of the Civil Judge, Davanagere, in O.S. No. 6 of 1975 decreeing the suit of the plaintiff for cancellation of the decree made against him in O.S. No. 5 of 1941-42 on the file of the District Judge, Shimoga, and reviving the said suit in O.S. No, 5 of 1941-42 reserving liberty to Defendant-7 to prosecute the said suit as against the plaintiff. The decree against the other Defendants 1 to 6 remained undisturbed. The parties in this Judgment will be referred to by the ranking assigned to them in this appeal.
2. The facts of the case take us back to a litigation successfully commenced by the appellant four and a half decades ago in O.S.No. 5 of 1941-42 against Respondent-1 and seven others. Respondent-1 was admittedly a minor in the said litigation and so also the appellant. The said suit was for recovery of possession of immovable properties described in ‘A’ Schedule and also to obtain possession of moveables or the value thereof as described in ‘B’ Schedule on the ground that they were the self acquired properties of the appellant’s father and also for partition and possession of ‘C’ Schedule properties on the ground that they were joint family properties and for other incidental reliefs. The suit O.S. No. 5 of 1941 42 (hereinafter referred to as the earlier suit) was filed informa pauperis. The Trial Court decreed the suit directing Respondent-1 and seven other defendants in that suit to put the appellant in possession of ‘A’, Schedule properties and items 5 and 6 of ‘C’ Schedule properties. It also made a preliminary decree declaring that the appellant was entitled to 1/3rd share in ‘C’ Schedule ancestral properties except Item Nos. 5 and 6 and he be put in possession of l/3rd share after division by metes and bounds. It also passed a decree for past mesne profits for a period of 3 years prior to the suit and future mesne profits till the appellant was put in possession of his share in the ‘A’ Schedule properties and ‘C’ Schedule properties except Items Nos. 5 and 6 after division by metes and bounds with proportionate costs. This decree was affirmed in appeal by the then High Court of Mysore in R.A.No. 97 of 1942-43 on 5-11-1943. It should be noticed that Respondent-1 did not challenge that decree but only his paternal uncle Rogappa and his 1st son who were Defendants 1 and 2 before the trial Court challenged it.
3. At this stage it is relevant to notice briefly the circumstances leading to the above litigation. This necessarily takes us to the genealogy of the family of the Appellant and Respondent-1 and their ranking in the trial Court. (The chart below gives the correct particulars).
Thipanna
= Yellavva
___________________________|___________________
| | |
Doddhalappa Sannabalappa Rogappa alias
= Yellavva Hanumavva Basappa (D-1)
| | |
Ramappa alias | |
Ramachandrappa | |
(Plf. = minor) | |
_____________________|_______ |
| | |
Giddavva Bappavva |
= Mudukappa |
| |
Venkappa alias |
Venkappa Reddy |
adopted by |
Hanumavva D-7 |
(Minor) |
_________________________________________________|__
| | | | |
Nandyappa Mudukappa Halappa Lakshmana Basavva
Reddy
(D-2) (D-3) (D-4) (D-5) (D-6)
(minor) (minor) (minor) (minor)
The appellant claiming to be the son of Dodda Halappa filed the earlier suit for the reliefs ‘more particularly mentioned in para 2 above. He pleaded that his father Dodda Halappa died about 8 years ago leaving behind ‘A’ and ‘C’ Schedule properties which were his self acquired properties ; that he died in the house of the parents of the next friend of the appellant ; that the appellant and his mother continued to live in the house of his (appellant’s) grand parents : that Rogappa, Defendant-1, had been in possession and enjoyment of ‘A’ and ‘B’ Schedule properties and was refusing to give the same to him and his mother, inspite of, repeated demands ; that ‘C’ Schedule properties were the joint family properties of the appellant’s father and Rogappa : but the income from these properties was hardly sufficient for the maintenance of the joint family after paying Kaodayam and other levies : that Dodda Halappa and Rogappa lived with their maternal uncle by name Bandappa and while living there they worked independently and acquired properties in their names independently and thus ‘A’ and ‘B’ Schedule properties were thus acquired by appellant’s father and after his death appellant became the rightful owner of these properties. Rogappa who was the 1st defendant before the Trial Court contested the appellant’s claim and so also his major son, Defendant 2. His other minor sons and minor daughter and Respondent-1 who was also a minor were all represented by a Court guardian, an Advocate of Shimoga Bar. They also contested the suit and adopted all the defences taken by Rogappa. All of them disputed the paternity of the appellant and maintained that unless he proved that he was born to Dodda Halappa, he had no cause of action against them. In reply, the appellant challenged the adoption of Respondent-1 by his mother. Defendant-8, the alienee, was placed exparte. On the pleadings of the parties the following issues were framed :
“1. Is plaintiff the son of deceased Doddahalappa ? (deleted, vide order sheet dated 10-9-1942).
2. Is the plaintiff entitled to get a share in the plaint schedule properties ? If so, what is the extent of his share and in what properties ?
3. How old is the plaintiff ? (deleted vide order sheet dated 10-9-1942).
4. Are the plaint A schedule properties the self acquired properties of deceased Doddahalappa ?
5. Are the plaint B Schedule properties in existence, and if any, in whose possession they are ?
6. Is the plaintiff entitled to past and future mesne profits, and if so to what extent ?
7. Is the 7th defendant the adopted son of Sanna Halappa ? (deleted vide order sheet dated 10-9-1942).
8. Is not the partition prayed for beneficial to the minor plaintiff and is not the suit therefore maintainable ?
9. To what relief or reliefs is the plaintiff entitled ?”
Issues Nos. 1, 3 and 7 were deleted since in the course of the trial) the Court guardian for Respondent-1 who was an Advocate and was also the Court guardian of the minor children of Rogappa and the Counsel for Rogappa did not press Issue Nos. 1 and 3 and the Counsel for the appellant did not press Issue No. 7 The other issues were contested on merits. The Trial Court decreed the suit in part in terms mentioned in para-2 above and the same was affirmed in appeal by the then High Court of Mysore in R.A. No. 97 of 1942-43. The decree was also executed against Rogappa, his children and Respondent-1 and the appellant was put in possession in the year 1945-46 of ‘A’ Schedule properties in terms of the decree and also l/3rd share in ‘C’ Schedule properties except Items Nos. 5 and 6.
4. One would have thought, the matter rested there. But, Respondent-1 who admittedly became a major in the year 1950 filed the present suit in 1961, out of which this appeal arises and obtained a decree in his favour in 1975 cancelling the earlier decree made against him in 1942. Thus the appellant is drawn to another round of litigation to establish his paternity and to retain the properties which were put in his possession about 42 years back. Hence this appeal.
5. The reasons which prompted the Trial Court to cancel the earlier decree were :
a) that the Court guardian for Respondent-1 was not properly appointed in the earlier suit and his appointment was not valid :
b) that he acted in a grossly negligent manner in the discharge of his duties as the Counsel for Respondent-1 and as such the decree was not binding on Respondent-1.
The suit was originally instituted in the Court of the Civil Judge, Chitradurga, as O S. No. 38 of 1961. It was renumbered as O.S. No. 5 of 1967. Consequent on the establishment of Civil Judge’s Court at Davanagere, it was transferred to the present Civil Judge’s Court and was renumbered as O. S. No. 6 of 1975. Respondent-1, the plaintiff therein, impleaded the sons of Rogappa and his daughter as Defendants 1 to 5, Thimmanna – the alinee – as Defendant-6 by his Legal representatives as Defendant 6 (a) to 6(d) and the appellant as Defendant-7. Though the principal cause of action in the suit was the alleged invalid appointment of Advocate Marulaiah as the guardian ad litem and his alleged grossly negligent conduct, he was not made a party to the suit, though he was very much alive till 1975. The trial Court also did not think it fit to exercise its powers under Order 1 Rule 10 of the Code of Civil Procedure (in short the Code) to implead him as a party defendant. Rogappa having died earlier, the disputants in this suit, except Respondent-2, were all minors in the earlier suit. But Respondent-2 remained exparte and so also the other defendants. So it was a contest between 2 minors, who both had become majors at the time of institution of the present suit and had no personal knowledge of what had transpired in the earlier suit. So, the trial Court, in our view, gravely erred in not impleading Marulaiah as a party in the interest of doing substantial justice to the parties.
6. We do not wish to burden the record by narrating the pleadings of the parties in this suit and the reasons of the trial Court for the findings recorded by it against the appellant. In our view, having regard to the contentions of the parties, only 3 substantial points that arise for consideration in this appeal are :
1) Whether the suit is barred by limitation ?
2) Whether the appointment of the Court Guardian in O.S. 5/41-42 on the file of the District Judge, Shimoga, was invalid ?
3) Does Respondent-1 prove that the guardian ad-litem in O S. 5/41-42 on the file of the Dist, Judge, Shimoga, acted in a grossly negligent manner in the conduct of the suit and therefore the decree is not binding on him and liable to be cancelled ?
7. POINT NO. 1:: Regard being had to the fact that Respondent-1 attained majority in the year 1950 and the suit was filed in 1961 after 11 years from the year in which he attained majority, a heavy burden was cast on Respondent-1 to establish that he had no knowledge of the decree passed against him within 6 years prior to the date of filing the suit. It is common ground that Article 120 of the old Limitation Act (the Act in short) applies to the suit. It reads as follows :
“Description of
suit
Period of
Limitation
Time
from which
period
begins to run
120.
Suit for which no period of limitation
is provided else-where in this schedule.
Six years
When the right to
sue accrues.”
In para 12 of the plaint Respondeat-1/Plaintiff has pleaded as follows regarding limitation :
“The suit is in time as the suit is governed by Article 120 of the Limitation Act and as the plaintiff for the first time became aware of the existence of the said decree and the grossly negligent acts of the guardian about 2 1/2 years ago a little time after the attachment of the plaintiff’s interest also in the ‘C’ schedule properties described in O.S. 5/41-42 and that was about from the end of April 1959 and hence the suit is in time.”
In his examination-in-chief on 10-1-1977, Respondent-1 as P.W. 1 has deposed thus ;
“I was not aware of the proceedings of O.S. 5/41 and 42 on the file of District Judge, Shimoga, or subsequent litigations. For the first time I came to know of this litigation when my properties were brought for attachment by beat of tom tom in our village. This tom tom took place in year 1958-59. I went to Sri Kondajji Basappa who was then practising as Advocate at Chitradurga My Advocate Sri Kondajji Basappa filed my objection to the Execution Proceedings contending that I am not liable to paying mesne profits claimed in the execution proceedings,”
Whether he has spoken the truth has to be ascertained from what he has stated in his cross-examination and with reference to other evidence on record. In his cross-examination he has stated :
“I do not know how many persons reside in her house (his adoptive mother’s). I do not know in what year Rogappa died. I also do not know how many sons he had. I do not know if the sons of Rogappa are residing at Bilasanur. It is not true to suggest that Giddavva and sons of Rogappa and myself all live together in the same house. It is not true to say that during the Census in 1975 for preparation of voters list we have stated that we are all living together in the same house. I am now residing at Bilasanur in my father-in-law’s house. Rogappa’s house is at a distance of 50 yards from my house.
…… …… ……
I had not seen Rogappa. I do not know who was managing my family property when I was a minor. I was then staying with my maternal mother Giddavva. I do not know if my mother Giddavva knows of all these facts.
…… …… ……
I do not know if the litigation is going on for the last 30 years or more in the family of Rogappa, Doddahalappa and Sannahalappa. I do not know Bandappa’s family and their litigations.
“I do not know if the Court guardian Sri B.G. Marulaiah is alive I have not enquired whether he is alive or not. I have not enquired with B.C. Marulaiah as to what steps were taken after he was appointed as guardian.
…… …… ……
“I do not know if my natural mother Giddavva had filed some suits against the 7th defendant and his mother. I have not enquired anything with my natural mother Giddavva. I can’t identify the signature of Giddavva.
…… …… ……
“Right from the beginning myself and the sons of Rogappa are not on the good terms. I can’t give the reason. I do not remember to have seen my adoptive mother.
…… …… ……
Appellant/Defendant-7 who is examined as D.W. 2 has deposed :
” A Schedule property of O. S. 5/41-42 is our self acquired Property. We took possession of the same from the Court in the year 1945-46. Ever since then may mother and myself are doing Vivata of that property. Plaintiff Venkappa Reddy is aware of the previous proceedings ever since he attained the age of discretion. He is born in the year 1932. I and Vepkappareddy have studied together in the same class and in the same section and in the same High School at Harihar. Even to this date plaintiff and Giddavva and Tukaramappa are living in the same house, including Rogappa’s children. I saw Giddavva today outside the Court premises. She attends the Court on every Hearing Date O.S. 5/41-42 was decreed in 1942. The defendant’s went in appeal to the High Court. And the High Court appeal was decided in 1943. Thereafter Venkappareddy and Rogappa’s children filed O.S. 8/43-44 in the Munsiff Court at Davangere against me. Hanumavva was guardian of the plaintiff in that suit. That suit was dismissed. He went in appeal. The appeal was also dismissed. Then they split up that case and filed two more suits in O.S. 484/48-49 and O.S. 561/48-49. Those two suits were also dismissed throughout. Bandappa’s family member also filed O.S. 5/44-45 against me. In Trial Court it wag decreed. But in the two Appellate Courts it was dismissed. Rogappa and Bandappa’s family members were living in the same house. Thereafter Giddavva filed suit on behalf of Thukaramappa and Gangappa. in O.S. 3/48-49 in Shimoga Court. In the Trial Court it was decreed. But in the appellate Court it was dismissed. Thereafter this suit was filed. After becoming unsuccessful in all the previous litigations this suit is filed only to harass us.”
(Underlining by us)
The face that Respondent-1/plaintiff was born on 19-2-1932 is borne out from Ex.D- 10 and Ex- D 11. Ex. D-10 is the extract of the Service Register which shows that Respondent-1 was born on 19-2-1932. Ex. D-11 is the extract of Date of Birth of Respondent-1. This is given by the Head Master R.M. Harihar on the basis of the entry made in the Admission Register which shows that he was born on 19-2-1932 Ex. P.I is a certified copy of. the Registered Adoption Deed dated 2-10-1940 which shows that Respondent-1 was aged about 8 years old. Ex. P.1 came into existence at an undisputed point of time long before the parties contemplated this litigation and, hence, the recitals therein could be safely relied upon. Thus it is amply proved that the plaintiff Respondent 1 was born on 19-2-1932 Ex. D-16 is a copy of the judgment in O.S. No 484 and 501 of 1948-49. Respondent-1 was plaintiff 4 in O. S. No. 484 and Plaintiff-5 in O. S. No. 501 of 1948-49. His age was stated as 16 years. These suits were dismissed on 29-9-1951. So on the date of the judgment in these suits, he was admittedly a major as he had by then crossed 18 years and attained the age of 19 years. These suits also had a chequered career. These suits were first filed in a consolidated form in O. S. No. 8/1943-44 on the file of the Subordinate Judge, Chitradurga, against all the defendants in O.S. No. 484 and 501 of 1948-49 which included the Appellant and also B. C. Marulaiah, Advocate for Respondent-1 herein (and Defendant-7 in the earlier suit) for a declaration of their right to 36, 66th share in the suit schedule properties mentioned in the plaint therein and for a permanent injunction restraining the appellant and the contesting defendants from interfering with their peaceful possession and enjoyment in pursuance of the decrees obtained by the appellant in the earlier suit, by one Akki Thimmappa in O. S. No. 1/37-38 and one Kurukal Murigappa in O. S. No. 186/34-35. The suit schedule properties comprised all the suit properties including the ancestral properties as also those standing in the names of Rogappa and the father of the appellant Dodda Halappa ; that suit was ultimately dismissed on 17-11-1944 on the ground that the Court bad no jurisdiction to try the same. In appeal the said order of dismissal was set aside and the plaint was ordered to be returned for presentation to proper Court. Thereafter, the plaintiffs including Respondent-1 split up the reliefs claimed in the suit and filed 2 different suits in O. S. Nos. 484 and 501 of 1948-49. These suits were dismissed by the trial Court on the ground that the plaintiff violated the mandatory directions contained in Order VII Rule 10 of the Code of Civil Procedure. This order of dismissal was set aside in R.A. No. 60 and 61 of 1949-50 on the file of the Sub-ordinate Judge, Chitradurga. This order was confirmed by the High Court in Miscellaneous Appeals Nos. 82 arid 83 of 1950-51 and the suits were remitted to the trial Court for trial. Though the case was posted for evidence to 21-11-1950 by the trial Court with a peremptory direction to both parties to be ready and no further adjournment would be given, the parties were not ready on that day and prayed for adjournment. The adjournment was refused. But, the plaintiff’s Advocate undertook to get his witnesses by the next day i.e., 22-11-1950 and the case was posted to 22-11- 1950 On that day also the parties were not ready The trial Court refused to grant any more adjournment. All the same the plaintiff who was present before the Court refused to get into the box. Therefore, the suits were dismissed. In the appeal the order of dismissal was set aside and the suits were restored and remitted back to the trial Court with a direction to dispose of the same afresh after affording sufficient opportunity to the parties to adduce evidence. After several adjournments, the suits were taken up for evidence on 18-9-1951 and were finally disposed of on 29-9-1951. As noticed earlier, Respondent-1 was 19 years old when the above suits were disposed of; but, in those suits the challenge was to the decree obtained by the appellant in the earlier suit. Therefore, though he was a minor represented by the son of Rogappa as the next friend in those suits and Rogappa was also the defendant in O. S. No. 484/48-49, Respondent-1 was aware of the judgment and decree against him in the earlier suit and aggrieved by the same he and other sons of Rogappa had filed those 2 suits against the vendors and alienees of the properties covered by the decrees in the earlier suit. Paras 18, 20, 21 and 23 of the judgment of the trial Court in those suits throw some light on the various contentions taken by the parties in those suits.
“Within a short time, after the dismissal of the above suit, Ramappa, son of Dodda Halappa, elder brother of Rogappa, the third defendant, represented by his next friend and mother Yellavva, filed a suit in O.S. 5/41-42 on the file of the Learned District Judge, Shimoga, against Rogappa, his sons (present plaintiffs) and the defendant in O.S. 501/48-49. The plaintiff claimed in that suit certain properties (A and B schedules in that suit) as the self acquisition of his father Doddahalappa and a half share in certain properties (‘C’ schedule in that suit) claiming them to be the ancestral properties of himself and defendants 1 to 6 in that suit. The present plaintiffs who were minors then, were represented by an official guardian one Shri Marulaiah, an Advocate in Shimoga.
…… …… ……
The minor plaintiffs in these suits who were defendants in that suit and who were represented by their guardian Shri Marulaiah, contended that Doddahalappa had become the manager of the family of their maternal uncle Bandappa and in that capacity acquired the A schedule properties and that those acquisitions were made for the family of Bandappa and that they were not therefore the self-acquisition of Doddahalappa.
…… …… ……
It is contended for the plaintiffs that the suit schedule properties in the present suits were not the subject matter of the suit in O.S. 5/41-42 and that the findings in that suit are not binding on them and that even otherwise, (hey are not precluded from claiming in these two suits that the present schedule properties are their joint family properties It is no doubt true that the present suit schedule properties were not included in the above suit.
…… …… ……
“A plea was raised on behalf of the minor plaintiffs, who were defendants in O.S. 5/41-42 filed by Ramappa that the properties purchased by Rogappa and Doddahalappa were acquired out of the funds of the family of Bandappa for the benefit of their family. That plea, however inconsistent it may have sounded then, was probably inspired by Rogappa himself. If it did not, this much is certain. That plea inspired him to set up Bandappa’s people to bring this suit. The fact that be remained exparte is proof of that fact. All this has been done by Rogappa in the interest of his family to save the suit properties from his creditors.
…… …… ……
The 3rd issue in the case is ‘Are the allegations of the plaintiffs that the suit properties are the properties belonging to the joint family of themselves and their father, true and if so, to what share are the plaintiffs entitled ?’ The case of the plaintiffs is that their family was possessed of ancestral properties and that the income derived therefrom was not only sufficient for their upkeep but would allow surplus so as to enable further acquisitions to the family. This plea was also the subject matter of O.S. 5/41-42 on the file of the Learned District Judge, Shimoga. The evidence was also let in in that behalf by the parties to that case. The plaintiffs’ plea in that suit was that the ancestral properties were not yielding enough income and they were therefore obliged to stay in the family of Bandappa.
…… …… ……
In R.A. 97/42-43 preferred against the decree in that suit, their Lordships observed that ‘in these circumstances it was for Defendant-1 (Rogappa) to prove his plea and that no presumption can be raised on the ground of any nucleus which the family possessed……..’
There is one other aspect which has got to be considered and that relates to the adoption of the 5th plaintiff Venkappa in the case. The adoption has been challenged by the defendants. It must at this stage, be mentioned that the question of adoption was also a subject-matter in issue in O. S. 5/41-42 on the file of the Learned District Judge, Shimoga, and this issue was finally conceded in the case.”
These extracts of the judgment of the trial Court in O.S. Nos. 484 and 501/48-49 which was delivered on 29-9-1951 do indicate that Respondent-1 was aware of the entire proceedings in the earlier suit against him as also the circumstances under which the decree was passed against him. The very fact that he had made his own Advocate as defendant in the consolidated suit in O.S. No. 8/1943-44 is also very significant. He was made a party because he had acted as guardian ad litem in the earlier suit. Therefore, on the date of the judgment, i.e., on 29-9-1951, Respondent-1 who had become a major was aware of all the circumstances leading to the litigation in the earlier suit and the decree made against him.
8. The history of the litigation between the family of Respondent-1 on one side against Rogappa and the appellant on the other side and certain other vendors and alienees of the family properties would disclose that this family of Rogappa and his sons were hell bent on litigation since 1938 or so and, therefore, it could be safely assumed that Respondent-1 was not so innocent as be pretended to be, when he deposed before the trial Court in the present suit. If his evidence in cross-examination is read along with the extracts of the judgment in O.S. No. 484 and 501 of 1948-49 this Court can without any hesitation come to the conclusion that Respondent-1 was not telling the truth when be deposed before the Trial Court that he came to know of the decree passed against him only in the year 1958 when the appellant sought to attach of the properties that fell to his share, in execution of the decree.
In our considered view Respondent-1 was aware of the entire proceedings against him, the decree against him, the circumstances under which the Court guardian was appointed for conducting his case in the earlier suit and the concession made by him in the earlier suit in the year 1951 at the time of disposal of the suit filed by him and the sons of Rogappa and therefore the suit ought to have been filed within 6 years from 29-9-1951 on which date he was definitely a major having attained the age of 18 years on 19-2-1950. Hence, the suit was hopelessly barred by limitation.
9. Article 120 of the Act which is applicable to a suit of this nature provides for a period of 6 years as limitation, and the time from which that period begins to run is from the date when the right to sue accrues. It cannot be said in the light of the proceedings in O.S. No. 484 and 501 of 1948-49, Respondent-1 with due diligence could not have been aware of the judgment and decree against him in the earlier suit, the circumstances under which the Court guardian was appointed and the negligent acts attributed to the Court guardian till 1958. His evidence before the Trial Court, which we have already characterised as untrustworthy cannot be accepted to uphold the plea that the suit was within time.
10. However, it is contended by the Learned Counsel for Respondent-1 that in the written statement filed by the appellant he does not say that Respondent-1 was aware of the negligent conduct of his Counsel. His argument is that the right to sue accrued under Article 120 of the Act when the plaintiff obtained knowledge of the negligent conduct of his Counsel and not the knowledge of the proceedings or the decree. He relied on a decision of the Bombay High Court in Sadashivappa Gangappa and ors. -v.- Sangappa Chanvirappa Mahamadkoli, AIR 1931 Bombay 500. A Division Bench of the Bombay High Court considered the applicability of Article 120 to a declaratory suit. Justice Baker in his concurring Judgment observed as follows ;
“The only point that has been raised in this appeal is the question of limitation, it being admitted that in view of the total absence of any sanction by the Court on behalf of the minor the reference to arbitration, and the award, and the decree of 1917 cannot be upheld. It is common ground that Article 120, Limitation Act, will apply to the present case, and the only question is when the cause of action accrued to the plaintiff, and it is contended that the cause of action accrued at the date of the decree, which was on 29th September 1917 and therefore, the present suit brought on 15th October 1923, was time barred. Admittedly the plaintiff was in possession and no attempt was made to execute the decree of 1917 against him, that is to say, no earnest attempt, and no notice was issued to him until 1922. A reference to the arbitration proceedings will show that the name of the present plaintiff, who was then a minor, did not appear at all in the award before the arbitrators, although it appeared in the decree. There is nothing to show that the plaintiff had any knowledge at all of the existence Of this decree until July 1922. when a notice was issued against him to show cause why a sale deed as provided by the award decree should not be passed, and the present suit was filed immediately after that. It was held by the Privy Council in Bolo v. Koklan(A.I.R. 1930 P.C.270) that there can be no right to sue until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is insituted. That ruling appears to apply to the facts of the present case There was no infringement of the plaintiff’s right or any clear and unequivocal threat to his rights till the year 1922. This being so, the suit is not barred by limitation, The appeal fails and must be dismissed with costs.”
He also relied on the decision of the Privy Council in Bolo -v.- Koklan, AIR 1930 PC 270 wherein the Privy Council on the applicability of Article 120 observed as follows :
“There can be no ‘right to sue’ until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted.”
So the ratio of the decision of the Privy Council which was followed by the Bombay High Court is that limitation starts when the plaintiff becomes aware of an infringement of his right asserted in the suit or there is a clear and unequivocal threat to infringe that right. The filing of the suit O. S. 484 and 501/1948-49 by Respondent-1 challenging the decree passed against him in the earlier suit was indicative of the fact that he was aware of the fact that there was a clear and unequivocal threat to his right asserted in the suit. So even applying the ratio of the decision of the Privy Council in Bolo’s case and of the Bombay High Court in Sadashivappa’s case1, it is not possible to hold that the suit is in time.
In Mt. Izhar Fatma Bibi and ors. -v.- Mt. Ansar Fatma Bibi and ors., AIR 1939 Allahabad 348 a Division Bench of Allahabad High Court while dealing with the applicability of Article 91 of the Limitation Act held that burden of proof was on the defendant to show that the plaintiff had clear knowledge of the fact that a fraud had been committed. This decision is of no assistance to Respondent-1 since the language of Article 120 is not similar to that of Article 91.
In Raja Chattar Singh and anr. -v.- Diwan Roshan Singh, AIR 1946 Nagpur 277 a Division Bench of the Nagpur High Court considered the applicability of Article 91 of the Limitation Act. Therefore, this is also of no assistance to Respondent-1.
In Mathura Singh and Ors. -v.- Rama Rudra Prashad Singha and Ors., AIR 1936 Patna 231, a Division Bench of the Patna High Court held that the suit to set aside the decree on the ground of gross negligence of the guardian is governed by Article 120 of the Limitation Act and not Article 95 The Patna High Court observed as follows :
“The question therefore is, when did the cause of action accrue in the present case ? Was it on the date when the decree was passed, or on any subsequent date ? In 1931 Bom 500 where a decree was passed against a minor on the basis of an award when the suit was referred to arbitration without the sanction of the Court, it was held that under Article 120 Limitation Act, the period did not commence to run from the date of the decree. A minor was in possession of the land and there was nothing to show that he had any knowledge at all of the existence of the decree until a date when the notice was issued on him to show cause why the decree should not be enforced. The Learned Judges relied upon the observations of their Lordships of the Privy Council on Article 120, Limitation Act, in 11 Lah 657 (Bolo v. Koklan) which was to the effect that there may be no right to sue unless there was an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit was instituted. In M. Basavayya v. Bapanna Rao 120 1C 880 it was held that in a suit falling under Article 120 Limitation Act, the cause of action was not merely the passing of an adverse decree against the plaintiff, but in addition to it the fact that such a decree was passed by reason of the gross misconduct or gross negligence of his guardian ad litem and limitation did not begin to run the moment the decree was passed, but only when the gross negligence of the guardian which alone would entitle the plaintiff to have the decree set aside became known to him. Their Lordships held that when relief was sought on the ground of fraud, misconduct, mistake, etc. the limitation begins to commence from the time when fraud, misconduct or mistake became known to the plaintiff.”
11. In the light of these decisions could it not be said that the right to sue accrued to Respondent 1 in the year 1951 when he became aware of the alleged grossly negligent acts of his guardian; or could it be in the year 1958 when the appellant sought to execute the decree against him as stated by him in his examination-in-chief. It is established in this ease that Respondent-1 had the knowledge of the decree passed in the earlier suit in the year 1951. We will assume for a moment that it is open to him to contend that he was not bound to challenge the decree till it was sought to be executed against him. The period of limitation for executing the decree is 12 years under the present Limitation Act. In that case it would be open to the appellant to choose his own time to execute the decree. He could do so immediately after obtaining the decree or just before the expiry of the period of limitation of 12 years. In that case, could it be said that the cause of action under Article 120 accrued only when the decree was sought to be executed against Respondent-1 ? Supposing in the year 1951 itself he had knowledge of the decree passed in the earlier suit and the circumstances under which it came to be made in the year 1951, as could be seen from the pleadings and the Judgment in O. S. Nos. 484 and 501 of 1948-49, it would then not only be open, rather it would only be appropriate and proper for this Court to take a view on the facts of this case that the right to sue accrued to Respondent-1 when he became aware of the judgment and decree of the earlier suit in the year 1951 in which year he had become a major. It is because the said judgment and decree did disclose the part played by his guardian ad litem including the alleged grossly negligent act of the guardian. By filing those suits, he had in unmistakable terms exhibited his knowledge of the infringement of his right by the appellant or in any event, an immediate and unequivocal threat to his right. Therefore, the suit should have been filed before the expiry of 6 years from 1951. Thus the suit filed in the year 1961 was hopelessly barred by limitation. Accordingly, Point No. 1 is answered in affirmative and against the Plaintiff/Respondent-1.
12. The finding recorded on this point of limitation is sufficient to dispose of the appeal; but, the parties have advanced elaborate arguments on the other points which arise for consideration. Given the history of litigation between the parties for over 4 decades we should finally settle all the contentions and give a quietus to the long standing litigation. Hence it is also necessary to record our findings on the other points.
13. Point No. 2 : The trial Court has held that the appointment of guardian ad litem was not in accordance with the provisions of the Code and hence the entire proceedings conducted by him on behalf of Respondent-1 were ab initio viod. This contention takes us to the order sheet maintained by the trial Court in the earlier suit.
Exhibit D-19 is a certified copy of the order sheet maintained in the earlier suit from 8-11-1941 to 26-10-1942. After the institution of the suit, certain 1. A.s were filed. On 24-11-1941 I.A-3 was filed by the Advocate for the appellant with an affidavit under Order 32 Rule 3 of the Code praying that the persons mentioned therein may be appointed as guardian for the supplemental defendants, viz., 3 minor sons of Rogappa, his minor daughter and Respondent-1. Notices were issued returnable by 3-12-1941. Order sheet dated 3-12-1941 states that notices to these supplemental defendants were not yet returned and hence adjourned to 8-12-1941. The order sheet of 8-12-1941 discloses that notices to the guardian and minor supplemental defendants 2 to 8 were served by affixture on the house as they were absent. Accordingly, fresh summons and notices to defendants 2 to 8 were ordered returnable by 26-1-1942. The Order Sheet of 26-1-1942 reads as under :
I.A I
“Plaintiff by Mr. T.V.S. 1st
defendant by Mr.–
2nd defendant served on house, sufficient —
I.A II and
I.A. III
8th defendant served
personally, absent Gdn. of
minors 3, 4, 5, 6 and 7 served on house on
refusal.
F. Guardian
Applications are filed on 5-2-42.”
On 5-2-42 the proposed guardian of minor defendants having refused to accept the notices, the case was posted for filing guardian application for minor defendants 3, 4, 5, 6 and 7 and adjourned to 6-2-1942. On 6 2-1942 the case was adjourned to 10-2-1942 since no application was filed. On 10-2-42 the case was adjourned to 11-2-1942 finally for filing the application. On 11-2-42 l.A. 4 was filed proposing Sri B.C. Marulaiah, Advocate, Shimoga, to be appointed as Court guardian. Notices were issued to Sri. Marulaiah, Advocate, proposing him as guardian of minor defendants 3 to 7. The case was brought up on 10-3-1942 and on that day the Court made the following order :
“Plaintiffs by Mr. T.V.S. 1st defendant by Mr. H.S. Defendants 2 and 8. Court guardian served and is willing to act as such for minors 3 to 7 and in person. Minor notices not returned. Await by 16-3-1942.
Later notices returned. The notices served on house on refusal sufficient. Let Rs. 100 be deposited for the present as guardian fee Mr. BCM is appointed guardian of minor Defendants 3 to 7. Plaint amended. Adjourned to 16-3-42.”
Consequently, the plaint was amended and the case was adjourned to 16-3-1942 for depositing Rs. 100 towards guardian fee. It should be noticed that the 1st defendant in the earlier suit was none else but Rogappa, the father of the minor defendants 3 to 6 and the present Respondent-1 was the 7th defendant. It is in evidence that they were living in the same village and the house of Respondent-1 was hardly about 50 meters away from the house of the 1st defendant and his sons. All the same the 1st defendant refused to act as the guardian of his minor sons as also the guardian of Respondent-1 who is none else but his own nephew. This fact itself is sufficient to put this Court on notice on the bona fides of the family of Rogappa in the proceedings of the earlier suit. Rogappa being the natural guardian of Respondents 3 to 6 was the fittest person to protect their interest. All the same he refrained from receiving the notice sought to be served on him obviously with a view to keep his options open in case an adverse judgment and decree were to be passed against him and his children. Likewise the adoptive mother of Respondent-1 who was the natural guardian refused to receive the notice. Therefore, the trial Court had to appoint Sri. B.C. Marulaiah, Advocate, as Court Guardian- On these facts could it be said that the appointment of Advocate Marulaiah was contrary to the provisions of Order XXXII Rule 3 of the Code. The appointment of the same person as Court guardian for Defendants 3 to 6 was not challenged by them in appeal preferred by Rogappa against the judgment in the earlier suit in R. A. No. 94 of 1942-43. In that appeal the minor children of Rogappa, viz., Defendants 3 to 6 and Respondent-1 were arrayed as respondents represented by their Court guardian Sri. Marulaiah, Advocate. Rogappa, his major son Defendant-2, his minor children and Respondent-1 did not have any conflicting interest in the suit schedule properties in the earlier suit. All the same it was only Rogappa and his major son who chose to challenge the judgment and decree in the earlier suit in R.A. No. 97 of 1942-43. It is indeed perplexing to note the part played by Rogappa in the earlier suit and also in the appeal. He having refused to act as the Court guardian for his minor children allowed a decree to be passed against their interest. He was not perturbed by the decree made against them in the appeal preferred by him and his major son. It only goes to show that Rogappa has master-minded the litigation against the appellant’s family, right from the year 1938-39, using the minority status of his minor children as also that of Respondent-1 to harm the interest of the appellant. If at all there was any defect or irregularity in the appointment of the Court guardian by the trial Court, nothing prevented Rogappa from contending in the appeal that the entire judgment and decree of the trial Court was vitiated by the non – compliance with the mandatory requirements of Order XXXII Rules 3, 4 and 5 of the Code. This is one other strong circumstance to show that the challenge to the appointment of Marulaiah, Advocate, as a Court guardian is an after-thought with a view to circumvent the decree obtained by the appellant in the earlier suit. The minor children of Rogappa, and Respondent-1 were represented by the same Court guardian Since his appointment was not challenged by the minor children of Rogappa, a very heavy burden was cast on Respondent-1 after a lapse of nearly 40 years to challenge the appointment of the same Court guardian on the ground of non-compliance with the mandatory requirements of the relevant provisions of the Code. The evidence of Respondent-1 on this point is hardly convincing. He has stated in his Cross-examination that he had not personally gone through the entire records of the proceedings in the earlier suit; that he personally did not know what steps were taken at the time of appointing the guardian in that suit and that he had not enquired about this with his mother Giddamma. The order sheet maintained by the trial Court on the relevant dates in this regard cannot be impeached at this distance of time merely on the basis of the oral evidence of Respondent-1 who had no personal knowledge. The Order Sheet shows that the orders on the various T. As were made after hearing the Counsel for the contesting parties. The Court records and Order Sheets in the earlier suit disclose that the notices sought to be served on the natural guardians of Defendants 3 to 6 and Respondent-1 before the Trial Court were refused by the respective natural guardians. The notices were therefore affixed on their houses. It was because of this the Court was constrained to appoint Sri. Marulaiah, Advocate, who had a good standing in the Bar, as Court guardian. It should be noticed at this stage that, as per the practice prevailing in the old Mysore State, the Courts used to appoint a Court clerk as guardian ad litem where there was no natural guardian to represent the interest of minors, in the proceedings pending against them. But, by virtue of the Circular bearing No. 338 dated 12-10-1938 the practice was put to an end and the practice of appointing an Advocate of some standing in the Bar to protect the interest of the minors was resorted to. On the facts established in the case, it cannot be said that the appointment of Court guardian was irregular and contrary to the provisions of the Code and, therefore, the entire proceedings before the trial Court in so far as it related to Respondent-1 were bad in law and hence the decree passed against him was void and not binding on him. The test is whether there was proper representation on behalf of Respondent-1 and not whether the appointment was irregular.
14. However, the Judgment of the trial Court on this point was sought to be justified on the ground that there was no proper representation of Respondent-1 in the earlier suit. Learned Counsel for Respondent-1 relied on Exhibits D-22 to 28 and Exhibits P.20 to 30 and D.19. He submitted that different guardians were proposed for Defendants 3 to 6 and Respondent-1 (Defendant-7) in the earlier suit ; that for Defendants 3 to 6 their maternal uncle was proposed as guardian whereas for Respondent 1 his adoptive mother Hanumavva was proposed as the guardian; that no attempt was made to appoint his natural mother Giddavva. He invited our attention to the provisions of Order 32 Rules 3 and 4 of the Mysore Civil Procedure Code which were in force them and maintained that these provisions are not in pari materia with the Civil Procedure Code in force in the new State of Mysore after 1956 and that no attempt was made to take out notices to the persons who had the custody of the minor. He also submitted that there was a deliberate attempt on the part of the appellant to defeat the rights of Respondent-1 by not making him as a party to the suit at the initial stage. His further grievance is that no application to appoint Advocate Marulaiah as guardian ad litem was filed and no affidavit was filed by Marulaiah, Advocate, affirming that he had no interest adverse to that of Respondent-1. On these facts, he submitted that there was no proper representation of the minor Respondent-1 in the earlier suit. According to him, the test is not whether the appointment was irregular but whether the proper representation of the minor was secured in the earlier suit.
15. Though the provisions of old Mysore C.P.C. are not in pari materia with the provisions of the new C.P.C. as they were in force in the new State of Mysore, nevertheless they are substantially the same. The minor changes are :
Order 32 Rule 3(4) of the old Mysore Code was as follows :
“No order shall be made on any application under this rule except upon notice to the minor to be served either personally, or in such other manner as the Court in each instance may direct, and to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian, upon notice to the father or other natural guardian of the minor, or, where there is no father or other natural guardian, to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule.”
Similarly, the provisions similar to those which are contained in Sub-rule (5) of Rule 3 of Order 32 of the present Code were not present in the Old Mysore C.P.C. There was no proviso to Order 32 Rule 6 Sub-rule (2) in the old Mysore Code as is found in present Code. Order 32 Rule 7 sub. rule (2) of the old Mysore Code was equivalent to Sub-rule (3) in the new Code. New Sub-rule (2) introduced in the new Code was not present in the old Code.
16. So, the material difference in the provisions of Order 32 as found in the old Mysore Code and in present Code were the provisions contained in Order 32 Rule 3(4) of the old Mysore Code which are extracted above. The grievance of learned Counsel for Respondent-1 is that these provisions were not complied with by the trial Court. According to learned Counsel, Respondent-1 was in the custody of his natural mother Giddavva and, therefore, notices should have been served on her. Exhibit D-19 is the Order Sheet maintained by the trial Court in the earlier suit in so far as it relates to the appointment of guardian. I.A. III was filed on 24 11-1941 under Order 32 Rule 3 of the old Mysore Code praying that the persons mentioned in that application be appointed as guardians for the supplemental defendants, viz. minor children of Rogappa and Respondent-1. This application was preceded by 1.A.II under Order 1 Rule 10 C.P.C. for impleading the minor sons of Rogappa and Respondent-1 as additional defendants. Notices were ordered on I.As. II and III on 3-12-1941 to supplemental defendants 2 to 6, Defendant-7 (Respondent-1) and Defendant-8 and the case was adjourned to 8-12-1941 as notices were not returned, On 8-12-1941 the order sheet bears the following endorsement
“Summons, notices to guardian and minor supplemental defendants 2 to 8 served on house as they were absent. Fresh summons and notices to 2 to 8 by 26-1-42.”
On 26-1-42 notice to the 2nd defendant, i.e., Rogappa’s son, was served on house-held sufficient-8th defendant was served personally and absent and the guardian of minors 3, 4, 5, 6, and 7 served on house on refusal. The case was posted for filing guardian application on 5-2-1942, Guardian application was not filed till 10-2-42 and finally on 11 2-42 guardian application for minor defendants 3 to 7 was filed in I.A.IV proposing Advocate Marulaiah as Court guardian. Notices were also ordered on minor Defendants 3 to 7. The case was adjourned to 10-3-42 regarding LA. IV. On that day, the order sheet shows that the Court guardian was served and he was willing to act as such for minors 3 to 7 and he was present in person. Minors’ notices were not returned and, therefore, the case was adjourned to 16-3-42 for awaiting return of the notices to the minors. However, on the same day, another order was passed :
“Later notices returned. The notices served on house on refusal sufficient. Let Rs. 100/- be deposited…. for the present as guardian fee. Mr. B.C.M is appointed guardian of minor Defendnts 3 to 7. Plaint amended. Adjourned to 16-3-42”
This order shows that for the second time notices were served on the house on refusal of personal service. Only thereafter, Advocate Marulaiah was appointed as the guardian for minors Defendants 3 to 7. So, the only defect in the procedure adopted by the trial Court in the earlier suit was that no fresh notices were issued to the guardians of minor defendants 3 to 7 regarding the appointment of Advocate Marulaiah as Court guard;an and Advocate Marulaiah did not file any affidavit indicating his consent to act as Court guardian. Could it be said that by this irregularity, there was no proper representation for minor Defendants 3 to 7 (Respondent-1)?
17. As noticed earlier, the provisions of Order 32 Rule 1 to 5 in the old Mysore Code are substantially the same as in the present Code. The effect of an irregularity in the appointment of Court guardian was considered by this Court in D.S. Jayadeviah and anr. -v.- Narasimha Gowda, 1975(1) KLJ 23. In that case an application for appointing minor’s mother as guardian of the minor was filed in the suit which was filed against the minor on the foot of the pronote executed by his father. As the notices issued under Order 32 Rule 4(4) were refused, they were served by substituted service under Order 5 Rule 17 C.P.C. and the Court held that the service was sufficient. Thereafter it appointed Court guardian for the minor. No fraud or collusion was established before the trial Court. It was held by this Court (Sadanandaswamy, J.) that failure to make an enquiry by the Court before appointing a Court guardian under Order 32 Rule 4(4) as to whether there was no other fit person to act as guardian did not render the decree null and void since no prejudice had been shown to have been caused to the minor thereby. The Learned Judge considered various decisions of other High Courts reported in Jatindra Mohan Poddar -v.- Srinath Roy, ILR 26 Calcutta 267 ; Ramachandra Singh -v.- Gopi Krishna, , Ramachandra v. Rampunit, ; Barichan v. Manakkal Raman Somyajipad, (1923) 44 Madras Law Journal 515; Bhagwan Dayal -v.- Paran Sukh Das, ILR 37 Allahabad 179; Narayan v. Gopalan, ; Siraj Patma v. Mahmood Ali, AIR 1932 Allahabad 292; Brij Kishore Lal -v.- Satnarain Lal, ; Siddappa -v.-Rangappa, 13 Mys. L.J. 176; Hitendra -v.- Sukhedeb, AIR 1929 Patna 360; Tikaram Namaji -v.- Tarachand Gujoba, AIR 1954 Nagpur 135, and in Krishna Bihari -v.- Kedar Nath, AIR 1954 Patna 349, and ruled that the absence of an enquiry by the Court under Order 32 Rule 4(4) as to whether there was no other fit person to act as guardian was only an irregularity since no prejudice had been shown to have been caused to the minor. The Learned Judge also noted the amendment made by the Patna High Court to the aforesaid Rule and held that the decision of the Patna High Court in AIR 1968 Patna 129 was not an authority for the proposition that notice to the natural guardian was necessary under Clause (4) of Rule 4 of Order 32, before appointing a Court guardian. In Jatindra Mohan Poddar -v.- Srinath Roy there was no personal service of the summons on the minors or upon their guardian, nor was the summons affixed to the house in which the minors or their guardian actually resided. It was held that there was neither personal nor substituted service of the summons upon the minor defendants therefore they were entitled to have the exparte decree set aside. In Rama-chandra Singh -v.- Gopi Krishna notice under Order 32 Rule 3(4) was not served either on the minor or on his mother who was proposed as guardian in the execution proceedings. Without such notice the guardian ad litem was appointed by the executing Court. It was held that Order 32 Rule 3(4) was mandatory and it was imperative to serve notice in terms of Order 32 Rule 3(4) on the minor and his guardian and when inspite of such notice they do not choose to appear, only then the Court gets jurisdiction to appoint a guardian ad litem of such minor. It was further held that that mere fact that the pleader-guardian ad litem was appointed by the Court without complying with the provisions of Order 32 Rule 3(4) and the further fact that such a pleader-guardian acted on behalf of such a minor could not clothe him with the power to act as such on behalf of such a minor and he must be considered to be disqualified from acting as such guardian. Accordingly, the minor defendant was not properly a party to the proceeding and the judgment rendered or any order passed against him was without jurisdiction, null and void. However, it was observed in that case that where there is a mere defect, such as absence of a formal order appointing a person as guardian-ad-litem, notwithstanding that the notices in terms of Order 32 Rule 3(4) and under Order 32 Rule 4(3) have been served such a defect in the appointment of the guardian will not necessarily be fatal to the proceedings unless it is shown that the minor was prejudiced by the defect, because such a defect is a mere irregularity, and a defect of mere form, and not of substance, and it does not go to the root of the jurisdiction of the Court to render any judgment against such a minor. It was further held:
“That where the provisions of Order 32, Rule 3(4) have been violated, the order appointing the guardian is null and void and that in such a ease, the question of prejudice to the minor is irrelevant since the defect being one of substance, goes to the root of the jurisdiction of the Court. It has to be noticed that under sub-clause (4) of Rule 3 of Order 32 a notice to the proposed guardian is contemplated to ascertain his consent under the rule as amended by the High Court of Patna. In that case, no notice was issued or served on the minor or his natural guardian. It is not a case of service of notice under Order 5. This decision was followed in Ramachandra -v.-Rampunit. That was also a case where notices under Order 32, Rule 3(4) were not served either on the minor or the proposed natural guardian. The contention that even if there was no compliance with the said ; provisions, the decree passed in the mortgage suit was valid was negatived, following the decision in Ramachandra Singh -v.- Gopi Krishna.”
In Barichan v. Manakkal Raman Samyajipad10, the appointment of a Court guardian was procured by means of a false affidavit. That case has no application to our case because it is not the case of Respondent-1 that the appellant had filed a false affidavit in the Trial Court. In Bhagwan Dayal -v.- Paran Sukh Das11 the minor defendants were sought to be impleaded through their uncle as their guardian-ad-litem The uncle refused to be the guardian-ad-litem and informed the Court that the minors used to live with their mother and not with him. But without any notice being given to the minors or their mother in whose care they were, the Court appointed the Amin as guardian-ad-litem of the minors. It was held that the decree passed against the minors was null and void against them as there was contravention of the provisions of Order 32 Rule 3. That was a case where no application had been made under Order 32, Rule 3. But in the present case, an application under Order 32 Rule 3 was made, the notices were issued and they were refused and service was held sufficient by affixture of notices on the house. Three more cases which require to be noticed are (1) Brij Kishore Lal -v.- Satnarain Lal14 (2) Tikaram Namaji v.- Tarachand Gujoba17 and (3) Hitendra -v.-Sukhedeb16. In Brij Kishore Lal case14, the minor was represented by his elder brother as guardian in a partition suit Though the elder brother was not formally appointed as guardian he accepted the guardianship and he also filed a written statement engaging a Counsel. He went up in appeal against the decree passed by the trial Court against the minor and took up proper defence. There were other members of the family and the grand-father of the minor was a party to the suit and the defence was common to all. There was no prejudice caused to the interests of the minor. It was held that even though some formalities in the appointment of the guardian were not observed, if the guardian has agreed to act as the guardian and has done something to show that he has agreed to act as guardian, it would not vitiate the proceedings or would not affect the result of the suit provided there has been no prejudice to the minor. Accordingly, the decree made against the minor was not set aside. In Hitendra’s case16, the proposed guardian though served did not appear and the Court, without enquiring into the question whether there was any other person fit and willing to act as guardian in the suit, appointed an officer of the Court to be the guardian. It was held that this was an irregularity in the appointment but the appointment was not null and void and it could not be said that the minors were not properly represented in the suit. It was further held that where a guardian-ad-litem was negligent in the conduct of the suit and an exparte decree was passed the Court must be satisfied that there was a defence available to the minor defendants which could properly be taken in the suit before deciding whether there was such negligence on the part of the guardian-ad-litem as would entitle the minors in the decree already passed against them to have it vacated. The Court also observed that the practice of a natural guardian to refuse to act as the guardian ad litem so as to make it possible to urge afterwards that the minor was not properly represented in the litigation must be deprecated. In that case it was held that there was no valid defence to the minor and therefore there was no reason to set aside the exparte decree. In Tikaram Namaji case17 it was held that the omission to issue notices to certain persons who were alleged to be fit and willing to act as guardian ad litem for the minor or failure to record the statement of one of them whether he was or he was not willing to act as guardian ad litem did not vitiate the appointment of Court Reader as guardian or render the decree null and void. It was further held that irregularities do not affect the decree unless the minor’s interests are prejudiced. In Krishna Behari -v.-Kedar Nath in ignorance of the fact that the minor had a guardian appointed by a competent authority another person was appointed by the Court as guardian ad-litem. It was held that such an irregularity by itself did not vitiate either the decree passed in the suit or the sale held in execution of the decree as long as no prejudice was shown to have been caused and there was no allegation of fraud.
In Aramita Lisboa De Souza Guide and Ors. -v.-Audithrao Waghoji Raje Shirke, AIR 1927 Bombay 613, a Single Judge of the Bombay High Court has held that the absence of notice to the minor where he is properly represented is an irregularly only and not an illegality. The Bombay High Court followed the decision of the Privy Council in Mt. Bibi Walian v. Banki Bahari, (1903) 30 Calcutta 1021. But, however, the learned Judge has further observed that if it is shown that the guardian negligently did not appear and defend the interest of the minor and that the decree has in fact prejudiced the interests of the minor, the Court is bound to set it aside.
In Sankar Patra -v.- Debidayal Singh and Anr., , the learned single Judge of the Orissa High Court has taken the view that the words “natural guardian” in Order 32 Rule 3(4), considered in the background of what follows, namely, that in the absence of a natural guardian notice would go to the person in whose care the minor is, must mean either the father or the mother, if alive.
18. In the light of these decisions, the law that is well settled is that any irregularity in the appointment of guardian ad litem will not invalidate the decree made against the minor defendants if it is established that there was proper representation by the guardian. In this case, the conduct of Rogappa and the natural guardian of Respondent-1 are wholly inconsistent with their obligation to the minor defendants. It is proved that Rogappa refused to act as guardian for his minor children. Obviously, as noticed earlier, he was keeping his option open to challenge the decree that may be made against the minors at a later stage. The adoptive mother of Respondent-1 who was his natural guardian also refused to take the notice sought to be served on her. That is the reason the notices were served on the house of Rogappa’s minor children and on the house of the adoptive mother of Respondent-1. There is no evidence forthcoming in the present suit to show that no such notices were served. Neither the adoptive mother of Respondent-1 had been examined in this case nor the children of Rogappa. In the circumstances, the appointment of Court guardian cannot be challenged on the ground that there was a serious irregularity in the procedure adopted by the trial Court. Additionally, the oral evidence of Respondent-1 in the trial Court, as noticed earlier, does not establish that there was no proper representation by the guardian ad litem. Point No. 2 is answered in the negative.
19. Point No. 3 : The next question is whether the Court guardian acted in a grossly negligent manner m representing the interest of Defendant-7/Respondent-1 in the earlier suit. The negligence that was sought to be attributed to Advocate Marulaiah is that, without proper verification or taking instructions from the natural guardian of Respondent-1 or his relations, he conceded the legitimacy of the appellant though it was specifically taken as a defence in the written statement and an issue had been framed on his status.
We will have to go back to the order sheet once again to appreciate what exactly transpired before the trial Court in the earlier suit regarding the concession made by Advocate Marulaiah. The order sheet bearing the date 9-7-42 discloses that issues were framed on that day and the Court ordered production of documents in a fortnight and the case was posted for evidence on 4-8-42. Advocate Marulaiah filed on behalf of Respondent-1 the Adoption Deed with a list on 14-7-1942. On 22-7-1942 I.A.5 was filed by the appellant’s Counsel under Order 16 Rule 1 of the Code calling upon Rogappa to produce the documents mentioned therein. Those documents are :
For objections on I.A. 5 the case was posted to 1-8-42. Objections were filed on that day. Advocate Marulaiah was also present on that day for the minor defendants. The case was posted for evidence on 4-8-42, On 4-8-1942 Advocate Marulaiah was present for minor defendants and the plaintiff sought to take summons to 9 witnesses by hand service and return since the summons taken out earlier had not been returned. On the same day I. A. VI was riled by Advocate Marulaiah for Respondent-1 and other minor defendants with a list of witnesses and also for directing the appellant to deposit the amount as per the list and for enhancement of his fees. The case was adjourned to 24-8-42 for service of summons to the witnesses. On that day I.A. VII was filed under Order XIII Rule C.P.C. for summoning the records mentioned therein, viz.,
On the same day an order was made to the effect that parties and witnesses were absent and the case was adjourned to 10-9-42 with a direction to the parties to be ready. On 10-9-42 there is an endorsement to the effect that the plaintiff summoned 3 records but only 2 records were received and the plaintiff’s Counsel submitted that the plaintiff concedes that Defendant 7 Respondent-1 is the adopted son of Sannahalappa and therefore the 7th issue may be deleted being unnecessary and the 7th issue was accordingly deleted. The order deleting that issue was made first as could be seen from the initials of the learned District judge bearing the date 10-9-42, After that order was made, Advocate Marulaiah for the minor defendants and the Counsel for Rogappa and his major son, i.e., Defendants 1 and 2 submitted that they did not press the contention of the above defendants as regards the legitimacy of the appellant/plaintiff and, therefore Issues 1, 3 and 7 regarding the legitimacy and age of the’ appellant and adoption of Respondent-1 may be deleted. It was accordingly ordered by a separate order made by the learned Judge on the very same day. The order sheet for that date also bears the initials of Advocate Marulaiah and the Counsel for Rogappa. The signature of Rogappa is also found in the order sheet. The other dates in the order sheet subsequent to this order are not relevant for the purpose of this case. But, suffice to say that the order sheet for the other relevant dates do bear out that Advocate Marulaiah was present on all the dates of hearing subsequent to 10-9-42 till the case was posted for Judgment and in as much as the defence of Rogappa and his children was common and Respondent-1 was sailing with them, Advocate Marulaiah had no special part to play apart from what was being done by the Counsel for Rogappa and his major son. However on these facts which are borne out from the order sheet it was sought to be made out by Respondent-1 before the Trial Court in the present suit, that Advocate Marulaiah, without taking proper instructions from the persons or relations who had known about the parentage of the appellant had conceded the issue touching his legitimacy which went to root of the case and thus had greatly prejudiced Respondent-1 and by such concession Advocate Marulaiah bad acted in a grossly negligent manner.
19. The other contention on the alleged gross negligence in the conduct of Advocate Marulaiah is that he allowed a decree to be passed against Respondent. 1 for mesne profits for a period of 8 years, though Respondent-1 was not in possession of the property in question being a minor at that time ; that Rogappa as the manager was in possession of all the properties ; that under Ex. P. 22 execution was levied against Respondent-1 also though it was given up in Exhibit P.24. That apart in Ex. P. 21, a certified copy of the application for attachment, shows that the minor defendants and Respondent-1 had suffered a decree for past and future mesne profits and, therefore, that act amounted to gross negligence on the part of the guardian ad litem. As rightly contended by the Learned Counsel for Respondent-1, it is not necessary for the purpose of this appeal to decide whether the issues relating to legitimacy and mesne profits were rightly conceded. What is necessary to consider is whether, on the facts as borne out from the records of the Trial Court and the judgment of the Trial Court, Advocate Marulaiah was grossly negligent in the discharge of his duties as guardian ad litem. But the facts pertaining to legitimacy of the appellant which are on record as also to the passing of the decree for mesne profits, would indirectly throw some light on the alleged gross negligence or otherwise on the conduct of Advocate Marulaiah as guardian ad litem. The order sheet shows that on 10-9-42 both the Counsel for Rogappa and his major son and Advocate Marulaiah submitted that they did not press the contention relating to legitimacy of the appellant. Therefore, it is possible to draw an inference that both of them had discussed the issue in the light of the material in their possession and accordingly conceded this issue. What exactly transpired in the Court on that day could have been spoken to either by the Counsel for Rogappa or by Advocate Marulaiah. Advocate Marulaiah was not made a party to the present suit nor he was called as a witness. The other advocate was also not examined, though, it is not in dispute that, he was alive at the time of the trial of the suit. Rogappa who was admittedly present on 10-9-1942 before the Trial Court was no more, he having died in the year 1959 and, therefore, a heavy burden was cast on Respondent-1 to prove that the concession made by Advocate Marulaiah amounted to gross negligence in the discharge of his duties. The only evidence of Respondent-1 on that point is his oral evidence. In his Examination-in-Chief he has stated thus :
“Sri B. C. Marulaiah had not taken any instructions either from me or from my mother in conducting O.S. 5/41-42.
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Sri B. C. Marulaiah has not given any evidence on my behalf. He is also not taken proper steps on my behalf. He has not cross-examined the witnesses who have deposed against me. Since the case in O.S. 5/41-42 is not properly conducted by the said Court guardian. It is not binding upon me.”
In cross-examination it is elicited.
“I have not personally gone through the entire records of the proceedings in O.S. 5/41-42. I personally do not know what steps were taken at the time of appointing the Guardian in that suit. I have not enquired about this with my mother Giddamma.
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I do not know if the Court guardian Sri B.C. Murulaiah is alive. I have not enquired whether he is alive or not. I have not enquired with B. C. Marulaiah as to what steps were taken after he was appointed as guardian. I do not know how many witnesses have been examined in O. S. 5/41-42. I also do not personally know how many witnesses were cross examined by the Court guardian. I can’t say who was the person as head of our family who was aware of the Court proceedings in O.S. 5/41-42. I do not know if Rogappa and Court guardian had taken similar contentions in their respective Written Statements in O.S. 5/41-42. I do not know if Rogappa had engaged an lawyer in that suit. I do not know if Rogappa had preferred an appeal against the judgment in O.S. 5/41-42. Except the information furnished by Sri Kondajji Basappa I am not personally aware of any of the Court Proceedings in O.S. 5/41-42. I do not know if the written statement filed by the Court guardian was erroneous or faultly. I can’t say if the Court guardian failed to produce any documents in support of this case.
I do not know if my natural mother Giddavva had filed some suits against the 7th defendant and his mother. I have not enquired anything with my natural mother Giddavva. I can’t identify the signature of Giddavva.
…… …… ……
I can’t say who were the witnesses that should have been examined by the Court guardian Sri Marulaiah. It is not true to say that after having become unsuccessful in about 7 or 8 litigations in respect of this property Giddavva has now started this litigation through me.”
This evidence must be examined with the evidence of the appellant in the present suit.
“I saw Giddavva to-day outside the Court premises. She attends the Court on every Hearing Date. O.S. 5/41-42 was decreed in 1942. The defendants went in appeal to the High Court. And the High Court appeal was decided in 1943. Thereafter Venkappareddy and Rogappa’s children filed O.S. 8/43-44 in the Munsiff Court at Davangere against me. Hanumavva was guardian of the plaintiff in that suit. That suit was dismissed. He went in appeal. The appeal was also dismissed. Then they split up that case and filed two more suits, in O.S. 484/48-49 and O.S. 501/48-49. Those two suits were also dismissed throughout. Bandappa’s family members also filed O.S. 5/44-45 against me. In Trial Court it was decreed. But in the two Appellate’s Court it was dismissed. Rogappa and Bandappa’s family members were living in the same house. Thereafter Giddavva filed suit on behalf of Thukaramappa and Gangappa, in O.S. 3/48-49 in Shimoga Court. In the Trial Court it was decreed. But in the appellate Court it was dismissed. Thereafter this suit was filed. After become unsuccessful in all the previous litigations this suit is filed only to harass us.”
On a comparative appreciation of the oral evidence of the appellant and Respondent-1 it is proved beyond a shadow of doubt that the present suit by Respondent-1 was a speculative suit engineered by the failure of his litigation in the earlier suits against the appellant and the other members of his family.
20. A large number of cases have been cited before us by the Learned Counsel on both sides on the principle which attracts the provisions of Order 32 Rule 7 of the old C.P.C. What all Order 32 Rule 7 says is that the guardian ad litem shall not without the leave of the Court, expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian. On the facts proved, this Court has to determine whether deleting the issues on the concession made by the Counsel for Rogappa and guardian ad litem of Respondent-1 before the Trial Court in the earlier suit would amount to an ‘agreement’ or ‘compromise’. The words ‘agreement or compromise’ are not defined in the Code. Order 23 Rule 3 of the old Code in force in Old Mysore State mentions the words ‘agreement or compromise’. It reads as under :
“Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit.”
21. It is contended by the Learned Counsel for Respondent-1 that the concession made by Advocate Marulaiah as guardian ad litem amounts to an ‘agreement’ and, therefore, the concession made without the leave of the Court would not be binding on the minor Respondent-1 as he was then a minor and the decree made on such concession should be set aside in the present suit.
22. In Dokku Bhushayya -v.- Katragadda Ramakrishnayya and ors., , the Supreme Court had occasion to consider the meaning of the words ‘agreement’ and ‘compromise’ as they appear under Order 32 Rule 7 CPC. The Supreme Court observed as follows :
“Order XXXII, Rule 7, is one of the provisions designed to safeguard the interests of a minor during the pendency of a suit against hostile, negligent or collusive acts of a guardian. The scope of the provisions is implicit in the phraseology used therein. The crucial words are ‘any agreement or compromise ….with reference to the suit’. The words ‘with reference’, if taken out of the context, are of the widest import. They may take in every procedural step in the conduct of a suit, such as adjournment, admission of documents, interlocutories, inspection etc., and obviously it could not have been the intention of the Legislature that agreements in respect of such procedural steps should conform to the requirements of the rule. If that be so, the rule instead of protecting the interests of a minor would easily become a major obstacle in disposing of suits, in which a minor is ranged as party on one side or the other. So consistent with the purpose of the rule the words ‘with reference to the suit’ must be limited to the rights put in issue in the suit.
The next limitation is that the protection is only during the pendency of the suit. When does a suit come to an end? It has been held that for the purpose of the said rule an execution proceeding is a continuation of a suit : see [ILR 26 Bom 109, Arunachellam Chetty v. Ramanadhan Chetty, ILR 29 Mad. 309 and Muthalakkammal v. Narappa Reddiar, ILR 50 Mad. 430: (AIR 1933 Mad. 456) (FB) ] If it was a continuation, the rule would also apply to an agreement or compromise with reference to the said execution proceedings. But, just like in the case of a suit, in the case of execution proceedings, also the agreement or compromise shall be one affecting rights or liabilities ascertained or declared by the decree put in execution. As in the case of a suit, so also in the case of an execution of a decree, mere procedural steps not affecting the rights or liabilities so declared are not governed by the provision. The guardian may agree to an adjournment of a sale, to a waiver of a fresh proclamation, to a reduction of upset price etc. It could not have been the intention of the Legislature that every time such a step is taken, the procedure laid down in Order XXXII, Rule 7, of the Code should be complied with.
The next limitation is that the agreement or compromise shall be entered into with a party to a suit or his legal representative. The rule does not provide for dealings of a guardian with persons not parties to a suit. The question directly arose in a case which went up to the Privy Council, viz., in 70 Ind App 68 at page 72 : (A.I.R.. 1943 PC at page 97). There, a decree obtained in favour of a minor, represented by his guardian, was assigned by the guardian for consideration to another without obtaining the leave of the Court. Adverting to the question of validity of such an assignment, Lord Atkin observed :
“They (the Judges of the High Court) took the view that in the rule in the phrase ‘agreement or compromise– with reference to the suit’ the words mean agreement with a party to the suit and do not cover a transfer of a decree to someone then unconnected with the suit, even assuming that such transfer could properly be described as an agreement. They expressed their agreement on this point with a decision of the Full Bench of the Madras High Court in ILR (1938) Mad. 819 : (AIR 1938 Mad 539) (FB), which is precisely in point. It appears to their Lordships that it cannot have been intended to require the leave of the Court to an agreement, for example, made with a non-party to finance a suit, whether with a stipulation to receive part of the proceeds or not. The conjunction of the word ‘agreement’ with the word ‘compromise’ appears to indicate the kind of agreement intended.’ ”
23. Placing reliance on this decision, Mr. Sundaraswamy, Learned Counsel for the appellant, contended that the deletion of three issues, viz., Issues Nos. 1, 3 and 7, would not amount to an agreement or a compromise because by such deletion no negligence much less gross negligence could be attributed to Advocate Marulaiah. Per contra, Learned Counsel for Respondent-1 has relied on the following authorities :
1. Banwarilal Singh -v.- Dwarakanath Missir and ors., 1919 (Vol. III) Indian Cases 825 ;
2. Suruj Mookhi Konwar -v.- Bhagwati Konwar, 1882 (Vol. 10) Calcutta Law Reports 377 (PC);
3. Contract Act by Pollock & Mulla 9th Edn.
24. The appellant has stated in Para 3 of his written statement thus :
“This defendant conceded the adoption of the present plaintiff on the plaintiff accepting the legitimacy of this defendant which was also in issue.”
In para 4 of the written statement he has stated thus :
“‘If this defendant had not conceded the status of the present plaintiff it would have been very difficult for the guardian to prove the adoption and would have acted greatly to the prejudice of the present plaintiff.”
On these averments it is sought to be made out by the Learned Counsel for Respondent-1 that the deletion of two relevant issues touching the legitimacy of the appellant was in pursuance of an agreement and, therefore, the provisions of Order 32 Rule 7 were attracted to the facts of the case. On these averments in the written statement and the evidence of the appellant, the 2 points that arise for consideration are (1) whether it amounts to an agreement and (2) if so, whether Respondent 1 must be deemed to have known what transpired between the parties when he was admittedly a minor in the earlier suit at the time the concession was made by Advocate Marulaiah for Respondent-1.
24. In Suruj Mookhi Konwar case24, the Privy Council has ruled that “Although a guardian of two minors may have power to manage or to make a partition of the estate, he has no authority to bind the estate of either of his wards by admissions of previous transactions.” Provisions of Order 32 Rule 7 did not arise for consideration in that case. But, this is an authority for the proposition that the admission of the previous transaction by a guardian is not binding on the minors in a suit filed against them.
In Brejendro Coomar Roy Chowdhry -v.- The Chairman of the Dacca Municipality, 1873 (Vol. 20) The Weekly Reporter 223, the facts are not applicable to the facts of this case, since the question arose for consideration in that case was the effect of the representation made by a party when they had not been acted upon by the opposite party.
In Banwarilal Singh v. Dwarkanath Missir23 a Division Bench of Calcutta High Court has ruled that “admission made by the guardian of the person of an infant as to the property rights of the latter are not binding on the infant, but such admissions may be receivable in evidence for other purposes. An admission by the Court of Wards, made at the time when the estate was in charge of the Court, cannot bind or prejudice the infant proprietor.”
The decision in Meer Hyder Ali -v.- Shaik Jaffar All, 1875 (Vol. XXIV Weekly Reporter 223 does not deal either with the admission made by guardian or with the provisions of Order 32 Rule 7 and, therefore, this case was wrongly cited by the learned Counsel for Respondent-1 in the list of authorities given by him.
25. It is common ground that the words ‘agreement’ and ‘compromise’ are not synonymous terms. Therefore, a definite meaning must be given to both the words. Order 23 Rule 3 of the Code also uses the words ‘agreement or compromise’. In the context in which these words are used in Order 32 Rule 7 Order 23 Rule 3 of the Code, there is an indication that the same meaning cannot be given to these words in both these provisions. In Order 32 Rule 7 the words ‘agreement or compromise’ must be with reference to the suit ; but, in Order 23 Rule 3 the words ‘agreement or compromise’ are used for recording satisfaction by virtue of the fact that the suit bad been adjusted wholly or in part by any lawful agreement or compromise and that; would result in a decree in accordance with the agreement or compromise in so far as it relates to the suit.
26. In our view, the meaning to be given to the words ‘agreement or compromise’ as they appear in Order 32 Rule 7 could be ascertained from the amendment made to the provisions of Rule 7 by ROC 2526/1959. That amendment reads as follows :
“Where an application is made to the Court for leave to enter into an agreement or compromise or for withdrawal of a suit in pursuance of a compromise or for taking any other similar action on behalf of a minor or other person under disability, the affidavit in support of the application shall set out the manner in which the proposed compromise, agreement or other action is likely to affect the interest of the minor or other person under the disability and the reasons why such compromise, agreement or other action is expected to be for the benefit of the minor or other person under disability ; where in such a case the minor or the other person under disability is represented by counsel or pleader, the said counsel or pleader shall also file into Court along with the application a certificate to the effect that the agreement or compromise or action proposed is in his opinion for the benefit of the minor or other person under disability. If the Court grants leave under Sub-rule (1) of this rule, the decree or order of the Court shall expressly recite the grant of the leave sought from the Court in respect of the compromise, agreement or other action as aforesaid after consideration of the affidavit and the certificate mentioned above and shall also set out either in the body of the decree itself or in a schedule annexed thereto the terms of the compromise or agreement or the particulars of the other action.”
This amendment in the very nature of things could not be made applicable to the conduct of the case by the guardian ad litem. The amendment makes it clear that leave of the Court is necessary for entering into an agreement or compromise or for withdrawing a suit in pursuance of a compromise or for taking any other similar action on behalf of a minor. So the words ‘agreement or compromise’ as they appear in Order 32 Rule 7(2) must relate to the disposal of a suit by virtue of the agreement or compromise or for a withdrawal of the suit or for taking any other similar action which should have the effect of disposing of the suit or withdrawing the suit. It cannot have any application to the conduct of the case by the guardian ad litem. The framing of the issue is a procedural matter governed by the provisions of Order XIV Rules 1 to 7 of the Code. Amendment of issue is also a procedural matter and, therefore, the deletion of an issue would also be a procedural matter. Deletion of an issue may affect the substantial rights of the parties. But, by such deletion in the facts and circumstances of the case it cannot be said that the guardian who sought for the deletion of issues had sought for it as a result of ‘agreement’ ‘or ‘compromise’ on behalf of the minors with reference to the suit.
27. The cases cited by the learned Counsel for the respondent deal with admissions made by the guardian on behalf of the minor and those admissions are not matters of procedure which are regulated by the Code. No doubt the appellant has stated in his written statement that the 2 issues were deleted by virtue of mutual concession. But, does that averment bring it within the meaning of the word ‘agreement’ under Order 32 Rule 7 when such concession touches on the conduct of the case by the guardian ad litem ? Such an argument is opposed to the principle laid down by the Supreme Court in Dokku Bhushayya case22. Supposing a document is admitted by the guardian ad litem without any objection, though his objection could have been sustained by the Court, supposing the adjournment is not opposed by the guardian ad litem when such adjournment could have been refused by the Court, supposing any question in cross-examination is not put to the opposite party if such question is put would have had a devastating effect on the opponent’s case, could it be said that by virtue of an agreement between the parties the guardian ad litem did not raise his objection to the admission of the document or to the grant of an adjournment or for not choosing to put the relevant question in cross-examination ?
The decision of the Madras High Court in Venkata Narasimha Naidu and Ors. -v.- Bhashyakarlu Naidu and Anr., 1899 (Vol. 22) ILR Madras 538 also supports our view. The Division Bench of the Madras High Court has observed thus :
“A vakil appointed to conduct a case on behalf of a client has power to ask for an issue to be framed, or to abandon one that has been framed, and, in the absence of fraud or misconduct or of express instructions prohibiting the adoption of such a course, his action will be binding on his client. There is no distinction, in this respect, between the acts of Counsel, Vakils and other agents. The abandonment of an issue does not amount to a compromise, and if the suit is being conducted by a guardian on behalf of a minor, leave of the Court is not necessary under Section 462 of the Code of Civil Procedure for such abandonment.”
The word ‘agreement’ is defined in Stroud’s Judicial Dictionary (4th Edn) in the following manner :
“Aggreamentum is a word compound of two words-viz. of aggregatio and mentium, so that aggreamentum est aggregatio mentium in re aliqua facta vel facienda. And so by the contraction of the two words, and by the short pronunciation of them, they are made one word, viz., aggreamentum, which it, no other than an union, collection, copulation, and conjunction of two or more minds in anything done or to be done, (Reniger -v.- Fogossa, Plowd. 17a See also per Ellenborough C.J., Wain v. Warlters, 5 East. 16 ; per Kekewich J., Foster v. Wheeler, 36 Ch. D. 698). In Wain v. Warlters it was held that ‘agreement,’ in the Statute of Frauds, meant the whole agreement, including the consideration for it : see observation of Cockburn C.J., Williams v. Lake, 29 L.J.O.B. 1. But ‘the agreement or contract’ justifying a stoppage out of wages under the Truck Act 1831 (c. 37), Section 23, need not specify the amounts to be deducted (Cutts v. Ward, L.R. 2 O.B. 357, cited CONTRACT TO SUPPLY). ‘Agreement’ signifies primarily a contract, that is, a legally binding arrangement between two or more persons, by which rights are acquired by one or more to acts or forbearances on the part of the other or others’ (per Mayo J. in Re Symon, Public Trustee v. Symon (1944)S.A.S.R. 102, 110.”
In the light of this definition we are not persuaded to take the view that giving up an issue which in the light of the decision of the Madras High Court is a right conferred on a lawyer in the conduct of the case would amount to an agreement within the scope of Order 32 Rule 7 of the Code.
In our considered view, the words ‘agreement or compromise’ would be outside the scope of the procedural requirements of conducting the case on behalf of the minors Therefore, the deletion of the issues by itself would not bring the case within the scope of Order 32 Rule 7. We must bear in mind that the deletion of these 3 issues should be distinguished from the effect of such deletion on the rights of the minors. The effect of such deletion will have to be considered separately while we deal with the conduct of the guardian ad litem. Whether he acted in a grossly negligent manner so as to enable the minor to avoid the decree on that ground ? Thus viewed, the provisions of Order 32 Rule 7 are not attracted to the facts of the case. If Order 32 Rule 7 were to be interpreted in such a manner as to protect the procedural rights of the parties in a civil suit, the task of any guardian ad litem would become so burdensome, onerous and counter productive, that would defeat the very object of appointing the guardian for a minor for conducting the litigation. No doubt, the Courts must always be vigilant to protect the interests of the minors in a suit and that is the reason, why it is the bounden duty of the Court to appoint a guardian to represent their interest where there is no natural guardian. That power should not harshly operate against the guardian appointed by the Court so as to make him recalcitrant, apprehensive and unwilling to take up the onerous task with a sword of a minor Democles hanging over bis head. That would not have been the object of the legislature when they used the word ‘agreement or compromise’. Therefore, we are of the opinion that the contention of the Learned Counsel for Respondent-1 must fail on this point.
28. That takes us to the next point for consideration as to the duly of the Court guardian in conducting the case on behalf of the minors. The specific acts of negligence attributed to the Court guardian are :
Gross negligence in conceding the issue regarding legitimacy of the appellant. According to Respondent-1 this concession was made without instructions on behalf of Respondent-1 either from his natural mother or the adoptive mother and without consulting any of the relations who were in close contact with the natural guardian of Respondent-1 during his minority. Secondly, failure to take proper instructions from the persons concerned who could have given definite instructions in the matter to rebut Respondent-1’s case on Issue No. 4 relating to the nature of she properties of Rogappa and his brothers. It is said that had the Court guardian been a little diligent, he could have shown that these properties were the joint family properties and from the nucleus of the joint family properties ‘A’ Schedule properties were acquired by Rogappa and his brothers ; that though sufficient evidence on this aspect was available, the guardian ad litem acted in a grossly negligent manner by hot adducing any evidence. Thus this conduct of the guardian ad litem had greatly jeopardised the case of Respondent-1. The third act of gross negligence relates to the decree for mesne profits made against Respondent-1. The case before the trial Court was that Respondent-1 was not in possession of the properties being a minor at that time and he could not have been liable for any mesne profits. It is alleged that this fact was not brought to the notice of the trial Court and consequently the decree for mesne profits was passed against Respondent-1 resulting in execution of the decree, against his share of the properties described in ‘C’ Schedule. These are the specific acts of negligence attributed to the guardian ad litem.
29. It is well settled that the party who pleads negligence must prove the same. Though the burden in evidence is never static and it swings like a pendulum in the clock, but the burden in the pleadings will shift on to the other side only when a prima facie acceptable evidence to prove negligence is adduced. It then becomes necessary for the other side to rebut it.
30. Sri Sundaraswamy, learned Counsel for the appellant submitted that the Court guardian has no duly to plead much less canvass untenable proposition of fact or law. If at some stage of the suit he is satisfied that the plea taken by him is untenable or frivolous he need not press the same and in such a case permission of the Court is not necessary under Order 32 Rule 7 CPC. He further submitted that untenable or unsupportable plea or issue does not constitute negligence in law. According to him, it is not any act of negligence but gross negligence on the part of the guardian which gives a cause of action for setting aside the decree against the minor; that a decree against him on account of the gross negligence of the guardian is not void, but only voidable. So, for setting aside such a decree, it is not sufficient to allege gross negligence against the guardian, but it must be proved that such negligence resulted in great prejudice to the miner in such a way that the minor could be regarded as not having been represented properly. Even assuming that the decree is voidable, that would be voidable as against the impleading minor and his interest and not against any other party. He further submitted that under Hindu Law there is no presumption that the property acquired by a member of a Hindu undivided family in his name is joint family property. He relied on the following text in Mayne’s Hindu Law 12th edn.
“The normal state of every Hindu family is joint. Presumably every such family is joint in food, worship and estate. In the absence of proof of division, such is the legal presumption. But the members of the family may sever in all or any of these three things’. The presumption of jointness is not an absolute one. It may be displaced by direct evidence or prior partition. Acquisition of properties in the names of different members is not inconsistent with jointness. Of course there is no presumption, that a family, because it is joint, possesses joint property or any property. The question whether the property is joint family property is one of fact to be decided on evidence without reference to any presumption.
…… …… ……
On the basis of these submissions, he urged that this Court should hold that there was no gross negligence on the part of the guardian ad litem in giving up the issues relating to the legitimacy or in conducting the case in so far as it relates to the nature of the property sought to be impeached. As regards the mesne profits he submitted that no prejudice was caused to the minor by such a decree since in the execution proceedings the appellant himself had given up his claim against Respondent-1 in respect of the mesne profits to the extent of his share in ‘C’ Schedule properties.
Per contra it is contended by the Learned Counsel for Respondent-1 that no presumption regarding legitimacy arose in favour of the appellant under Section 112 of the Evidence Act and such a presumption was not available on the facts of this case. According to Respondent-1, the contention put forward in the trial Court was that the appellant was born after the death of Dodda Halappa and he had deserted the appellant’s mother prior to his death. Therefore, there was no presumption that the appellant was born during the time his father had access to his mother. In any event, whether such a presumption was available or not will have to be gone into only in the fresh trial and not in this appeal. If the legitimacy is not proved, it would have enhanced the share of Respondent-1 and, therefore, giving up such a plea amounts to gross negligence without any regard to the legal consequence of such a plea ; that admittedly Rogappa being in possession of the properties, recovery of mesne profits for 8 years against the defendants in the earlier suit including Respondent-1 clearly makes out a case of gross negligence on the part of the guardian ad litem. That the guardian proposed for Defendants 3 to 6 in the earlier suit, viz., the maternal uncle of defendants 3 to 6 and the adoptive mother for Respondent-1 shows gross violation of requirements of Order 32 Rules 3 and 6 of the Code. According to him, the appellant’s Counsel should have taken steps to take out notices to the persons who had the custody of Respondent-1. Material was available to show that he was living with his natural mother Giddavva but no attempts were made to serve the notice on her. It is also submitted that the guardian ad litem failed to get instructions for conducting the case on behalf of Respondent-1 and he merely adopted the written statement of Rogappa and his major son. He also invited our attention to the fact that the appellant did not implead Respondent-1 as a party initially. On these facts he submitted that the manner of appointment of the guardian ad litem and his conduct in conducting the case, if taken conjointly, established that the guardian ad litem was grossly negligent in the dischare of his duties.
31. Learned Counsel on both sides have referred to a number of decisions in support of their respective contentions and the relevant decisions will be considered at the appropriate stages. But, before considering them, the evidence on record must be noticed as to the plea of negligence made by Respondent-1, since that plea of negligence cannot be established merely by relying on the records of the proceedings in the earlier suit. The records in the earlier proceedings in the trial Court are the plaint, the written statement, the depositions, the documents, etc.
The only person who could have given evidence as to how the case was conducted by the guardian ad litem was Defendant-2 in the earlier suit, viz., Nandyappa. Rogappa, his father, was not alive and Nandyappa being a major had contested the earlier suit. But he was placed exparte in the present suit. Further, Respondent-1 did not implead the guardian ad litem (Advocate Marulaiah) as a party to the present suit. However, he was not available for giving evidence since he died in the year 1975 but his written statement would have helped the Court to a considerable extent if he had been made a party. The Counsel who conducted the case tor the appellant in the earlier suit was also not examined and, therefore, we are left with the highly interested evidence of Respondent-1 in the present suit and the records of the proceedings in the earlier suit to determine the question of gross negligence on the part of Advocate Marulaiah.
32. We will first take the records of the proceedings in the earlier suit. Though it is alleged in the plaint, the records by themselves do bear out the fact that guardian ad litem had acted in a grossly negligent manner such a plea could have been accepted at its face value if Respondent-1 was the only contesting party before the trial Court in the earlier suit. His uncle Rogappa was the principal defendant and he had contested the suit tooth and nail by engaging his own Counsel. The elaborate written statement filed by him in the trial Court gives an indication that there was a serious controversy between the parties in the earlier suit and he had taken all the possible pleas to meet the case of the appellant. He had also taken the plea of legitimacy of the appellant in the earlier suit and other pleas that were relevant for sustaining his case that the properties in question were the joint family properties and not the separate property of the appellant’s father Dodda Halappa. As noticed earlier, the order sheet bears the signatures of the Counsel for Rogappa and his major son regarding the deletion of the issues in question This is surely an indication of the fact that such deletion was made by the guardian ad litem in consultation with the Counsel for Rogappa. Rogappa’s defence was similar to the defence of Respondent-1. Rogappa’s Counsel had played a prominent part in the defence of the case and where was very little the guardian ad litem had to do regard being had to the case of Respondent-1. It therefore follows that Rogappa having contested the case by taking all the available pleas it cannot be said that only by looking into the records it is possible to draw an inference that the guardian ad litem acted in a grossly negligent manner. Therefore, perforce we have to look into the evidence of Respondent-1 to satisfy ourselves whether he has proved gross negligence on the part of the guardian ad litem. The relevant portions of his evidence in this regard are as follows :
“Sri B.C. Marulaiah had not taken any instructions either from me or from my mother in conducting O.S.5/41-42.
XX XX XX
Sri B.C. Marulaiah, has not given any evidence on my behalf. He is also not taken proper steps on my behalf. He has not cross examined the witnesses who have deposed against me. Since the case in O.S. 5/41-42 is not properly conducted by the said court guardian. It is not binding upon me.
XX XX XX
I have not personally gone through the entire records of the proceedings in O.S.5/41-42. I personally do not know what steps were taken at the time of appointing the guardian in that suit, I have not enquired about this with my mother Giddamma.
xx xx xx
I do not know if the Court guardian Sri B. C. Marulaiah is alive. I have not enquired whether he is alive or not. I have not enquired with B.C. Marulaiah as to what steps were taken after he was appointed as guardian. 1 do not know how many witnesses have been examined in O.S 5/41-42. I also do not personally know how many witnesses were cross examined by the Court guardian. 1 can’t say who was the person as head of our family who was aware of the Court proceedings in O.S. 5/41-42. I do not know if Rogappa and Court guardian had taken similar contentions in their respective Written Statements in O.S. 5/41-42. I do not know if Rogappa bad engaged any Lawyer in that suit. I do not know if Rogappa had preferred an appeal against the judgement in O. S. 5/41-42. Except the information furnished by Sri Kondajji Basappa I am not personally aware of any of the Court Proceedings in O.S. 5/41-42. I do not know if the written statement filed by the Court guardian was erroneous or faulty. I can’t say if the Court guardian failed to produce any documents in support of this case.
I do not know if my natural mother Giddavva had filed some suits against the 7th defendant and his mother. I have not enquired anything with my natural mother Giddavva, I can’t identify the signature of Giddavva.
XXX XXX XXX
I can’t say who were the witnesses that should have been examined by the Court guardian Sri Marulaiah. It is not true to say that after having become unsuccessful in about 7 or 8 litigations in respect of this property Giddavva has now started this litigation through me.”
On this evidence, no negligence muchless gross negligence of guardian ad litem is established by Respondent-1.
33. A. number of decisions have been cited by the learned Counsel on both sides on the duty of guardian ad litem to the minor plaintiff/defendant.
A Division Bench of the erstwhile High Court of Mysore in Kariyappa -v.- Bharmappa and Ors., 1941 (Vol. 19) Mys. L.J. 414 dealing with the rights of minor to challenge a decree made against him on the ground of negligence of his guardian ad litem observed as follows :
“The right of a minor to challenge a decree which has been passed against him on the ground of negligence of his guardian ad litem is founded on the principles of justice, equity and good conscience and not solely on any peculiarities of the English Law, and gross negligence of his guardian ad litem has, apart from fraud and collusion been recognised by Courts in India as affording cause to a minor to challenge the decree. When there is no valid defence to urge it is not the duty of the guardian ad litme to raise frivolous and untenable pleas and the failure to do so cannot amount to gross negligence.”
(underlining is made by us)
In Dimala Narasu -v.- Ingili Baitharu and Ors., AIR 1938 Madras 13 it was held thus :
“A decree suffered by a next friend or guardian ad litem of the minors in a suit can be set aside on their attaining majority on the ground of fraud, collusion or gross negligence of the next friend or guardian ad litem. What is gross negligence depends on the facts of each case, but it must be such negligence as would lead to the loss of a right which would have been successfully asserted if the suit had been conducted or resisted with due care. Failure of a guardian to do his duty in getting all the available material and placing it before the Court would amount to gross negligence on the part of the guardian. A decree by consent stands on the same footing as other decrees ”
(underlining is made by us)
In Bishundeo Narain & Anr. -v.- Seogeni Rai & Ors., the Supreme Court in para 23 of its Judgment has observed as follows :
“It is well established that a minor can sue for partition and obtain a decree if his next friend can show that that is for the minor’s benefit. It is also beyond dispute that an adult coparcener can enforce a partition by suit even when there are minors. Even without a suit, there can be a partition between members of a joint family when one of the members is a minor. In the case of such lastly mentioned partitions, where a minor can never be able to consent to the same in law, if a minor on attaining majority is able to show that the division was unfair and unjust, the Ct. will certainly set it aside. The rule, however, does not apply to decrees if the minor is properly represented before the Ct. & 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.”
Though the Supreme Court does not use the words gross negligence as a ground for setting aside the decree, it should be noticed that what should be the degree of negligence in a matter concerning the decrees against the minors was not before the Supreme Court.
In Chatrati Sriramamurthi and Anr. -v.- Officia Receiver, Krishna and Ors., AIR 1957 A.P. 692 the Andhra Pradesh High Court has ruled thus :
“Inspite of the dissent expressed in Krishna Das Padmanabha Rao v. Vithoba Annappa, ILR 1939 Bom. 340 : (AIR 1939 Bom. 66)(A), it must now be taken in view of the decision of the Supreme Court in Bishundeo v. Sheogeni Rai, (B), which affirms the principles of the decisions of the Madras, Allahabad, Calcutta, Lahore and Patna High Courts in Ayya Pillai v. Ayyadurai Goundan, 67 Mad LJ 927 at p. 936 : (AIR 1935 Mad 81 at p. 85)(C) ; Muhammad Shadak Koyi Saheb v. Venkatakamaraju, 1940-2 Mad LJ 433 : (AIR 1940 Mad 810)(D) ; Egappa Chettiar v. Ramanathan Chettiar, ILR 1942 Mad 526: (AIR 1942 Mad 384)(E) : Chanduru Punnaya v. Rajam Viranna, ILR 45 Mad 425 : (AIR 1922 Mad 273)(F) ; Siraj Fatima v. Mahmud Ali, ILR 54 All 646 : (AIR 1932 All 293) (FB)(G); Maheshchandra v. Manindra Nath, ILR (1941) I Cal 477 : (AIR 1941 Cal 401)(H) ; Iftkhar Hussain Khan v. Beant Singh, ILR 1946 Lah 515: (AIR 1946 Lah 233 (FB)(I) and Kamakshya Narain v. Baldeo Sahai, (FB)(J), that gross negligence on the part of a next friend or guardian -ad-litem of the minor in conducting or defending a suit to which he is a party, entitles the minor to challenge the decree passed against him and avoid its effects.
The negligence must have been such as to result in the loss of a right which would have been successfully asserted if the suit had been conducted or resisted with ordinary care and prudence. It might consist in the omission to raise an available plea or to adduce available evidence to substantiate it. If the next friend or guardian-ad-litem had been guilty of gross dereliction of duty, that is to say, if he had neglected to do what was plainly his duty or did or omitted to do something which no man of common honesty and ordinary prudence would have done or omitted, then the minor would have a right to sue to set aside an adverse decision attributable to the guardian’s breach of duty.
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. The decisions are exhaustively examined in ILR 54 All 646 ; (A.I.R. 1932 All 293)(FB)(G) and FB(J), and it is unnecessary to refer to them again. Though the rule is now well established, previous decisions are not of much guidance as authority in individual cases, for the question in each case is, whether on the facts proved, the minor had lost a valuable right and the conduct of the guardian was so grossly negligent as to entitle the minor to avoid the effect of a decree against him.”
34. In the light of the Judgment of the Andhra Pradesh High Court with which we are in complete agreement, it is unnecessary to refer to various other cases cited at the Bar by the learned Counsel on both sides.
35. However, the facts in Bore Gowda and Anr. -v.-B. Nagaraju and Anr., AIR 1969 Mysore 8 require a little more elaboration. That was a case where the decree passed in the earlier suit by the learned Munsiff, Mandya, which was affirmed in appeal by the learned Civil Judge, Mandya, was set aside in the subsequent suit filed by the minor on the ground that the earlier decree against him was made by the Courts below on account of gross negligence on the part of his mother as guardian in conducting the earlier suit. An admission was made by the defendant in that suit which attracted the provisions of Section 112 of the Evidence Act. The contention raised in that case was that due regard being bad to the principle of Section 112 of the Evidence Act the burden of proof was wrongly cast on the plaintiff by the lower Court, that no proper plea was raised or put forward in the case and as there was no issue of non-access as per Section 112 of the Evidence Act, there was really no trial of the suit. This Court on a consideration of the decisions in Narayan -v.- Gopalan,12 Chatrati Sriramamurthy and the decision of a Full Bench of the Allahabad High Court in Siraj Fatma case13, examined whether negligence of the natural guardian was so grave as would amount to clear violation of the duty cast upon the guardian. Applying this test, this Court held that there was no dereliction of duty on the part of the guardian and on the admitted facts gross negligence on the part of the guardian was not made out. This Court referred to the decision of the Madras High Court in AIR 1936 Madras 47933 in which Madhavan Nair, J. as he then was, speaking for the Bench has observed as follows :
“We are prepared to assume that the special aspect of the question of non-liability now presented before us escaped the notice of the lawyer who conducted the case. But the question is whether the guardian who has taken all the necessary steps to conduct the case properly and has entrusted the case to a lawyer can be said to be grossly negligent on account of the lawyer’s failure to raise a legal point in defence which may well have been raised by him. It is not denied that the lawyer engaged was sufficiently competent to conduct the case. It is not suggested that there was any collusion between the lawyer and the plaintiff or that he was in any other way remise in conducting the case. It is not proved that the lawyer was not provided with sufficient funds to conduct the case. In these circumstances, is it reasonable to hold that the guardian has been grossly negligent in the conduct of the case if the lawyer fails to raise a point of law which may well have been raised by him ? We think not. It was observed in (1883) 22 Ch. D. 727 that a trustee is bound to conduct the business of trust in the same way as an ordinary prudent man of business conducts his own and has no further obligation. In (18 9) 42 Ch D. 674 it was pointed out that a trustee may select solicitors and agents and so long as he selects persons properly qualified he cannot be made responsible for their intelligence and honesty. We think the same may be said about the guardian of a minor also.”
The conduct of the lawyer who conducted the case was under consideration by the Madras High Court. In this case, the lawyer was also the guardian ad litem. Therefore, is it proper for this Court to hold that the guardian ad litem has also got a special responsibility which an ordinary Counsel is supposed to discharge in a given case and accuse him of gross negligence?
36. What is gross negligence is considered by various High Courts including our High Court and the earliest case is found in Mt. Siraj Fatma13. This Judgment was followed by the Calcutta High Court in Mahesh Chandra Bayan -v.-Manindra Nath Das, AIR 1941 Calcutta 401. B.K. Mukherjea, J. as he then was differed from the view taken by the Full Bench of the Bombay High Court in Krishna Das Padmanabhrao-v.-Vithoba Annappa, AIR 1939 Bombay 66 and agreed with the view taken by the Allahabad High Court (Full Bench decision) adverted to above. He also relied on the observation made in Chhajju Ram -v.- Nekhi, AIR 1922 PC 112. At page 405, the Learned Judge observed as follows :
“The next question is as to whether the circumstances of the present case justify the finding of the lower appellate Court that the guardian ad litem acted in a grossly negligent manner in the previous suit. I agree with Sulaiman, C. J. in the view expressed in 54 All 646 that the neglience of the guardian in order to be a good ground for the avoidance of a decree must be of such a character as to justify the inference that the minors’ interests were not at all protected, and in substance, though not in form, the minor went unrepresented in the trial Court. In the present case, both the Courts below have found that the minors had a perfectly good defence and in fact the concurrent finding of both the courts is that the property was the exclusive property of the father of the infants. The mother had actually put forward this defence in the written statement but she abstained later on from adducing any evidence at the time of the trial and gave up contesting the suit. I agree with the special subordinate Judge that it would have been better if the Court had appointed another guardian for the minors when the mother expressed her unwillingness to act as the guardian of the minors Be that as it may, I think that the failure on the part of the guardian to defend the suit when there was a perfectly good defence available, resulting in serious loss of rights of the infants would amount to gross and culpable negligence.”
From this decision what emerges is whether there is gross negligence on the part of the guardian ad litem depends on the facts of a particular case.
In Lalji Sah and Ors. -v.- Sat Narain Bhagat and ors., a Division Bench of the Patna High Court has observed that even in the absence of fraud or collusion on the part of the guardian, the minor can avoid the decree on the ground of gross negligence on his part. But it is not every kind of gross negligence which would render proceedings otherwise regular and proper liable to be set aside. It must be such negligence as leads to the loss of the suit which, if it had been conducted with due care must have been successful.
In Balakrishna Kamath -v.- Ganesh Pai and ors., AIR 1954 Travancore Cochin 209 a Full Bench of the Kerala High Court held that a guardian ‘ad litem’ is not bound to contest a claim when no defence is available and a guardian’s conduct cannot be characterised as negligent merely because of the non entry of a defence where none exists.
The test of gross negligence on the part of guardian for setting aside the decree against the minor is found in the decision of the Allahabad High Court in Mr. Siraj Fatma case13. Sulaiman, J. speaking for the Full Bench observed as follows ;
“The test of negligence should be the not doing of what a reasonable man, guided by prudent considerations which regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The minor who is not able to resist the claim himself is represented by the duly constituted guardian, who is under an obligation to exercise due care and skill which a prudent man would exercise if he himself were a party. If the guardian appointed is not a proper guardian, for instance where his interest is adverse to that of the minor or where the guardian is grossly negligent in looking after the interest of the minor, it can hardly be said that the minor is properly represented in the litigation. Even where there was a duly constitued guardian and there was no flaw in his appointment, their Lordships of the Privy Council in the case of Durga Prasad v. Kesho Persad Singh (1882) 8 Cal. 656 held that as the guardian named in the case was not a legal guardian and had no right to defend the suit on behalf of the minor, the decree was not binding upon him In the case of Rashidunnissa v. Mohammad (1909) 31 All. 572 their Lordships of the Privy Council remarked that where the guardian was a disqualified person, the minor ‘was never a party to any of these suits in the proper sense of the term’. In the case of Brig Narain Rai v. Mangla Prasad (A.I.R. 1924 P.C. 50) the counsel for the defendant had to admit before their Lordships of the Privy Council that the previous decree was not binding on the minors in respect that they were not properly represented. There the father had been appointed as their guardian though his own alienation was impugned by the minor sons. Side by side with this view, their Lordships of the Privy Council have also laid down that even though there be no formal appointment of a guardian ad litem, a minor is bound by a decree obtained by him if his interest had been duly protected and he was effectively Represented by his mother, even though there was an absence of an order appointing her as his guardian: Walian v. Bankey Behari (1903) 30 Cal. 1021.
It therefore follows that the real basis of the binding character of a decree against a minor is the fact of his having been duly represented by a proper person, and not the mere existence of any formal order appointing a guardian for him. Even when there be such an order, if the guardian does not property represent him, the decree would not be binding. On the other hand, even if there be any defect in the formal appointment of a guardian, the decree would be binding upon him, if he is sufficiently represented and his interests are well protected.”
37. In our view, regard being had to the defence taken by the other defendants, viz., Rogappa and his major SOD, and the manner in which they conducted the case ably assisted by their Counsel in the earlier suit, there was no gross negligence on the part of Advocate Marulaiah. It is not suggested or proved that he acted in collusion with the appellant It is not even suggested or proved that he was an incompetent lawyer. We have already extracted the evidence of the plaintiff on the alleged negligent conduct of Advocate Marulaiah. It is seen from the records that the natural mother of the plaintiff Giddavva did not choose to enter the witness box in the suit. It has come in the evidence of the appellant that she was very much behind the scene and instructing the Counsel for Respondent-1. She was found in the Court premises throughout the trial, but, she did not enter the witness box for reasons best known to her. She was the best person to speak about the events that culminated in the decree against Respondent-1 in the earlier suit. The entire burden was borne by Respondent-1 alone who was a minor then and who had absolutely no knowledge of what transpired in the Court in the earlier suit. Therefore, the oral evidence of Respondent-1 is wholly un-dependable and what little he could speak from the records of the proceedings in the earlier suit, do not and will not persuade us to take the view that Advocate Marulaiah as guardian ad litem acted in a grossly negligent manner. Even on the question of mesne profits, though the decree was made against Respondent-1, no prejudice was caused to him by such a decree since the appellant himself had given up his right under the decree at the stage of execution.
38. The test of gross negligence on the part of the guardian ad litem should also be considered in the light of the defence taken by Rogappa and his major son. The suit was for a declaration that Schedule ‘A’ and ‘B’ properties were self acquired properties of the appellant’s father and Schedule ‘C’ properties were the joint family properties and for enforcing the appellant’s right to possession of Schedule ‘A’ and ‘B’ properties and partition of ‘C’ Schedule properties. The defence was that Schedule ‘A’ and ‘B’ properties were the joint family properties and ‘C’ Schedule properties were the self acquired properties of Rogappa. Rogappa and his son also contended that the appellant was not the legitimate son of Dodda Halappa. On these pleadings the burden of proof that a particular property was joint family property shifted on to Rogappa and his major son (who had been properly represented by their Counsel) after the Appellant’s evidence in support of his plea. Respondent-1 had also taken up similar defences. Respondent-1 could not have led any evidence which could have been or ought to have been different from that of Rogappa and his major son. The decree against Rogappa and his sons was affirmed in Appeal in R.A. No. 97 of 1942-43. That decree was binding on them even now. The decree being voidable at the instance of Respondent-1, it could have been set-aside only to the extent of Respondent-1’s share in the suit properties, if it was possible for this Court to hold that the Court guardian acted in a grossly negligent manner in conducing the case on behalf of Respondent No. 1 in the earlier suit. But, on the facts and circumstances found and established in the case and the nature of the defences taken by Rogappa, his major son and Respondent-1, it is not possible to hold that there was gross negligence on the part of the guardian ad litem in conducting the case on behalf of Respondent No. 1. in the earlier suit. It is well settled that what is ‘gross negligence’ has to be determined from the facts and circumstances of each case as observed by this Court in AIR 1969 Mys. 832. We are satisfied from the conduct of the case as borne out by the records in the earlier suit and also in the appeal before the then High Court of Mysore, in R.A. No. 97 of 1942-43 coupled with the wholly unsatisfactory oral evidence of Respondent-1 and the conduct of his natural mother Giddavva, that Respondent-1 has not placed the best evidence before the Trial Court for making out a case of gross negligence. We accordingly hold that the 1st respondent-plaintiff has failed to prove that the guardian ad litem in O.S. 5/41-42 on the file of the District Judge, Shimoga, acted in a grossly negligent manner in the conduct of the said suit. Point No, 3 is accordingly answered in the negative and in favour of the appellant and against Respondent-1.
39. One more point that needs to be considered is whether the suit as instituted by Respondent-1 for cancellation of the decree made against him in O.S. 5/41-42 by the District Judge, Shimoga, without seeking cancellation of the decree passed by the High Court in the appeal affirming the decree passed in the aforesaid O.S. No. 5/41-42 was maintainable in the eye of law. It should be noticed that the decree in question in the earlier suit was affirmed by the High Court in R.A. No. 97 of 1942-43. It is well settled that the decree of the Trial Court merges with the decree of the High Court. Therefore, respondent should have challenged the decree made by the High Court which affirmed the decree of the Trial Court. The decisions of the Supreme Court in Commissioner of Income Tax, Bombay -v.- Amritlal Bhogilal and Company, give us enough indication to hold that when the decree of the trial Court is affirmed by the appellate Court the decree of the trial Court merges with the decree of the appellate Court.
In Lakshmi Narayan Guin and ors. -v.- Niranjan Modak, , the Supreme Court has ruled that it is well settled that when a Trial Court decrees a suit and the decree is challenged by a competent appeal, the appeal is considered as a continuation of the suit, and when the appellate decree, affirms, modifies or reverses the decree on merits, the Trial Court decree is said in law to merge in the appellate decree and it is the appellate decree which rules. Though this observation was made while considering the meaning of ‘decree’ in Section 13(1) of the West Bengal Premises Tenancy Act, the principle enunciated by the Supreme Court is equally applicable to the decree challenged in the present case when admittedly that decree was affirmed by the then High Court of Mysore in R.A. No. 97 of 1942-43.
In SM. Ratan Mala Mondal and Anr. -v.- Gopal Lal Daga and Ors., the Division Bench of the Calcutta High Court observed that the Court has never applied the doctrine of merger for the purpose of defeating an execution petition of the decree of the Trial Court when the appeal has been dismissed and the decree of the Trial Court confirmed. Although it is true that technically the decree of the Trial Court merges in the decree of the appeal Court, it cannot be said that even when the decree of the Trial Court is affirmed in appeal the decree of Trial Court is wiped out for all purposes. This observation was made by the Calcutta High Court in regard to the right of a decree-holder to execute the decree. Therefore, that cannot be a precedent in regard to the challenge made to the decree which was affirmed by the appellate Court.
In Amritlal Bhogilal case39 the Supreme Court has observed in Para 10 of its Judgment that if an appeal is provided against an order passed by a Tribunal, the decision of the appellate authority is the operative decision in law irrespective whether it confirms, modifies or reverses the decision of the Tribunal. But, it was contended by the Learned Counsel for Respondent-1 that in practice and in substance what is executed is the decree or the trial Court even when it merges with the decree of the High Court. Perhaps, he may be technically correct to say so when the High Court affirms a decree without any modification. But, if the High Court modifies the decree of the trial Court what is executed is the decree of the High Court and not the decree of the Trial Court. By this simple test, we can come to the conclusion that the suit as framed by Respondent-1 without challenging the decree of the High Court in R.A. No. 97 of 1942-43 did not confer any jurisdiction on the Trial Court to set aside its decree in the earlier suit. Since the appellant had succeeded substantially on the other issues, we do not propose to lay down any law on this aspect of the case. We have made these observations because an argument was advanced by both the Counsel on this point though it was not taken up before the Trial Court.
40. For these reasons, we hold :
i) That the appointment of guardian ad litem was valid in the eye of law and even if it was irregular, Respondent-1 was properly represented in the earlier suit and no prejudice was caused to him ;
ii) That the concession made by the guardian ad litem on Issues Nos. 1 and 3 did not amount to an agreement within the meaning of Order 32 Rule 7 of the Code and as such no leave of the Court was necessary for the deletion of these issues. Further, such a concession does not amount to gross-negligence in the conduct of the guardian ad litem.
iii) That the suit was a speculative suit. Though Respondent-I had a right to challenge the decree in the earlier suit, he did not prove that his guardian ad litem had acted in a grossly negligent manner.
iv) That the decree for mesne profits against Respondent-1 did not clothe him with the right to challenge the same on the ground of gross negligence of the guardian ad litem as no prejudice was caused to his right by that decree. Further, as there was no negligence much less gross negligence on the part of the guardian-ad-litem in conducting the suit, the fact that the Court erroneously passed a decree for mesne profits against Respondent-1 itself cannot furnish a ground for holding that there was gross negligence on the part of guardian-ad-litem, as no body can ensure as to what would be the decision of the Court.
v) That the suit was hopelessly barred by time and on that ground alone it was liable to be dismissed.
Accordingly, this appeal is allowed ; the judgment and decree of the Trial Court are set-aside and the suit filed by Respondent-1 stands dismissed with costs throughout.