Chitradhar Narain Das and Another vs Khidar Thakur and Others

Wort, J.—This appeal and a cross-appeal arise out of an action in which the plaintiffs who were minors claimed a declaration that a certain mortgage decree was not binding upon them. I propose to say as little as possible in this case because I do not pretend nor did I ever pretend to understand the law as regards this particular matter. By that I mean that I have always failed to find any logical basis for the decisions on this matter, which have been arrived at always excepting certain decisions of the Judicial Committee of the Privy Council to which I shall refer in a moment. I can understand, as in Walian v. Banke Behari Pershed Singh (1903) 30 Cal. 1021 that although certain irregularities were present that is to say the strict letter of the law had not been complied with in the appointment of a guardian, yet there was in substance representation. But I find myself in the greatest possible difficulty as regards the decisions which have held that although the law has been complied with so far as the appointment is concerned, yet the question whether there has been a representation in fact can be ignored. It always has seemed to me that to lay down any such wide rule is to open a vista of litigation the end of which cannot be seen. However it does appear to be clear on the authorities, including the decision of their Lordships of the Judicial Committee of the Privy Council in Mt. Rashid-un-nisa v. Muhammad Ismail Khan (1909) 31 All. 572 that although the law has been complied with it is open to the Courts to go into the question whether there has been representation.

Shortly stated, the facts out of which this appeal and the cross, appeal arise are these. The plaintiffs are two minors and their fathers entered into a mortgage transaction in November 1921. Three months prior to that date, that is to say sometime in August they entered into a transaction by which they purchased a certain property.

For the purpose of raising the money, the consideration for the purchase, they entered into the mortgage transaction to which I have referred. In course of time an action was brought on the mortgage, and amongst the defendants were the two fathers and their respective minor sons. A decree was obtained and it is as regards that decree that this action out of which this appeal: and the cross-appeal arise was brought.

The learned Judge in the Court below has come to the conclusion affirming the decision of the trial Court that, as the minors were not properly represented in the mortgage suit, and as the interests of the fathers who were appointed guardians of the minors in that suit were adverse to those of the minors, the decree was not binding upon them. Had the learned Judge in the Court below been content with allowing that declaration to the plaintiffs, nothing more perhaps would have been heard of this matter. But for reasons which I must confess I do not understand, the learned Judge has not only given the declaration to the plaintiffs which, by his findings, was an obvious conclusion, but has set aside the whole decree in the mortgage suit, and, without any jurisdiction, has ordered a rehearing of the mortgage suit. As I have already said the learned District Judge had no jurisdiction whatever to make that order. The action against the fathers and the minors was properly constituted, there was no allegation of fraud and, without substantiating a case of fraud, the Judge had no jurisdiction to set aside the decree. It is quite another question to make the declaration that the decree was not binding on the minors as in substance they were not parties to the suit. I leave the appeal at this stage to deal with the cross-appeal.

In the cross appeal Dr. Mitter representing the decree holders in the mortgage suit contends that the learned Judge should have come to the conclusion that the decree was binding upon the minors, first, because they were properly represented and in the alternative that the consideration for the mortgage was an antecedent debt. With the latter question I propose to deal at once.

I have stated in my opinion the facts quite sufficiently to raise that question. It is contended by Dr. fitter that the matter ought to be remanded for determination of this question, but on the plain facts as established in the case it seems to me to be impossible to come to ''the conclusion that this was an antecedent debt. As I have already stated, the mortgage was for the purpose of raising money for payment of the purchase price under the kabala in suit. There is no doubt that so far as time is concerned the transaction of course was antecedent to the mortgage transaction of November.

But as Lord Dunedin in the well-known case in Brij Narain v. Mangla Prasad A.I.R.1924. P.C. 50 has pointed out that to constitute a debt an antecedent debt it must be antecedent both in point of fact as well as in time. Dr. Mitter argues that once he has shown that the debt was antecedent in point of time, the onus was upon the other party to show that it was antecedent in fact. I must confess I do not understand that argument which in my opinion is based upon a fallacy.

In Brij Narain v. Mangla Prasad A.I.R.1924. P.C. 50 Lord Dunedin was not stating that there were two limbs to the question whether the debt was antecedent or not but he was merely defining the word ''antecedent''; if the onus was upon the mortgagees, as it undoubtedly was in this case, to show that the debt was antecedent, they had not discharged that onus by showing that it was merely antecedent in point of time, in other words, until it was shown that the debt was antecedent in time and fact, the onus which was upon them was not discharged. In my judgment there is no possible doubt in this case on that point.

The argument of Mr. Mukharji on behalf of the appellants who are the respondents to the cross, objection, is that this question did not properly arise and it is therefore unnecessary to deal with it. Now as regards the representation. The case in Walian v. Banke Behari Pershed Singh (1903) 30 Cal. 1021 to which I have already referred, is one of the leading decisions on the question of representation. But it is as well to point out at once that that was a case as I have already stated in which there have been some informality as regards appointment, and their Lordships of Judicial Committee of the Privy Council pointed out that the interests of the minors were effectively represented by their mother with the sanction of the Court, and unless there were any matter which would show that the minors were prejudiced, the mere fact that informality existed would not entitle the minor parties to have the decree or execution set aside.

As regards the other case to which I have referred, Mt. Rashid-un-nisa v. Muhammad Ismail Khan (1909) 31 All. 572 that was a case in which the facts were some what complicated, but the point decided arises by reason of two findings; one that the sister who claimed to be the guardian of one of the minor parties was not a proper person to be appointed and as regards the appointment of one Mauladad Khan who was the father of some of the minor parties it was pointed out that as the minor sons were benamidars of the father, the circumstances of the case disclosed the fact that the real position was that the guardian who was in substance the plaintiff in the proceedings was acting as a guardian for the sons who were in the position of defendants and therefore their interests were adverse to that of the father.

I refer to this case more particularly because the decision of the Madras High Court in Sellappa Goundan v. Masa Naiken A.I.R.1924. Mad. 297 appears to be based upon this authority. Odgers, J. who delivered the principal judgment of the Court made this statement (this was a case where the father was appointed a guardian of the minors in the mortgage action):

It was improper and in fact illegal to appoint the father guardian at all. It was manifestly to his interest to throw as much of the burden of the mortgage debt as he could on the minors'' shares and to exonerate his own share proportionately. It is difficult to imagine a case where one defendant''s interest could be more adverse to that of another than the present case.

The learned Chief Justice of the Calcutta High Court in dealing with a similar argument in Shaik Abdul Karim Vs. Thakurdas Thakur and Others, made this statement:

It is in this case not necessary to proceed upon this ground (i. Rulethe ground that the interest of the mother was adverse to those of the minor defendants) and I would desire in particular to guard myself against holding that in any case where a guardian ad litem is appointed by a Court, the person afterwards by showing adverse interest can get a right to treat the decree as a nullity. I doubt, extremely whether the case in Mt. Rashid-un-nisa v. Muhammad Ismail Khan (1909) 31 All. 572 to which I have already referred, which is relied upon for that proposition, really goes so far and I am not to be taken as subscribing to everything that is said in Sellappa Goundan v. Masa Naiken A.I.R.1924. Mad. 297 the case to which I have just referred.

The real point which is at issue between the appellants and the respondents in this case is whether in the case of an appointment having been made with apparent informality under the Civil Procedure Code, the question of the interest of the guardian being adverse to those of the minor parties can be raised.

Now, I think as a general proposition the decision in Mt. Rashid-un-nisa v. Muhammad Ismail Khan (1909) 31 All. 572 to which I have already referred, is a sufficient answer to this question in the affirmative, and further support can be given to that view by certain decisions of this Court, the first of which is the case in Hitendra Narayan Singh and Others Vs. Sukhdeb Prasad Jha and Others, . I am not forgetting that in that case Das, J. (as he then was) states that the effect of what had taken place in that case was that no appointment had in fact been made; but he proceeds to say that:

In order that a minor may be entitled to have a decree already passed against him vacated on the ground of gross negligence of the guardian ad item, he must first satisfy the Court that the decree was available to him which could properly be taken in the suit.

I am proposing to make reference to one other case only reported in an unauthorized report, Kali Charan Singh v. Hirdai Narain A.I.R.1935. Pat. 24. Fazl Ali, J. there states:

It is now well settled that gross negligence which may be interpreted as culpable neglect of the interest of a minor defendant on the part of his guardian ad item will entitle the minor to the avoidance of proceedings undertaken against him.

He then goes on to point out that:

It is not every kind of negligence nor any kind of negligence which would render proceedings otherwise regular and proper liable to be opened up; it must be such negligence as leads to the loss of a right which, if the suit had been conducted or resisted with due care, must have been successfully asserted.

Without expressing any definite opinion of my own on that, it seems to be established by these authorities that the question whether a guardian property represents the interests of the minors by taking up such defences on behalf of,, the minors as were open to him is a matter that can be raised in a cage of this kind although there has been prima facie a regular appointment in the sense that the rules of the CPC have been complied with. I am not losing sight of the provisions of Order 32, Rule 4 in dealing with this matter. It is provided by Clause (1) of Rule 4.

that the interest of such person is not adverse to that of the minor and that he is not, in the case of a next friend, a defendant, or in the case of a guardian for the suit, a plaintiff.

Now the learned Judge of the Appellate Court in this case has come to the conclusion that the Judge of the trial Court was right in finding that owing to the interests of the fathers of the plaintiffs being adverse, the plaintiffs were not properly represented in the mortgage suit. I purposely refrain from expressing any view that the father''s interest was necessarily adverse because there are indications from the authorities of this Court that that at any rate cannot be stated as a universal proposition. But as the learned Judge has affirmed the decision of the trial Court it would be necessary to see what the trial Court has stated in this connexion.

The learned Judge of the trial Court appears to have considered this matter in the first instance as a matter of law and relies upon the decision reported in Hari Prasad Singha v. Sourendra Mohan Sinha A.I.R.1922. Pat. 450 for that proposition, but later he goes on to discuss the case relating to this matter and points out that the minor had a very good defence in that suit on the ground of family necessity and benefit and further points out that no such defence was taken by the father in that suit, and then proceeds to find that the minors were not properly represented in that these defences which were open to them were not raised. I must confess that it seems to me to be a case on the borderline, but there is no doubt that the learned-Judge has come to the conclusion as a conclusion of fact and that being so it is binding upon us in second appeal. Had the learned Judge contented himself with the observation which was made in the first part of his judgment in this matter (and to which I have already referred), I should have, no hesitation in coming to the conclusion that it could not possibly be supported and that the Judge in the Court below in confirming this decision would equally lack support.

For the reason that the learned Judge has come definitely to the conclusion; that the defences open to the minors were not put forward by their guardians, the fathers, it would appear that his decision that the decree was not binding upon the minor defendants is right. I have already pointed out in dealing with the appeal that the learned Judge had no jurisdiction to do other than grant the declaration in favour of the minor plaintiff To the extent that the learned Judge has ordered a rehearing of the mortgage suit after the minor plaintiffs are properly represented, the decree; must be set aside.

The plaintiff-appellants therefore will be entitled to a declaration to the effect that the decree in the mortgage suit was not binding upon them nor is the sale binding on them, that is to say, their interests are in no way affected. To that extent and that extent only was the. Judge entitled to make any decree in the action. That leaves the decree in the mortgage as well as the sale unaffected so far as the interests of the fathers were concerned. Now it is a rather anomalous position; the appellants in their appeal and the respondents in their cross-objection both support this part of the judgment. In my opinion therefore there should be no costs either in the appeal or in the cross-appeal.

Yarma, J.

I agree.