Devanandan Prasad Singh and others vs Harihar Prasad Singh and others

Courtney-Terrell, C.J.—This is an appeal from a decision of the Subordinate Judge decreeing a suit by certain persons who were minor sons at the date of the transaction in question, to set aside the alienation effected, by those transactions as not binding on them on the allegations that the transaction were effected for immoral purposes. The grandfather of the plaintiffs was one Tilakdhari Singh, his son was Ramsaran Singh, who in turn was the father of the three plaintiffs'' Harihar Prasad, Jamuna Prasad and Kapildeo, who is still a minor.

The transactions took place many years ago and began in this way About the years 1906, Tilakdhari the grandfather of the plaintiff and Ramsaran Singh his son, took some loans on hand notes amounting to a total of Rs. 450 from one Jatadhari Singh with interest at 12 per cent per annum. In 1908, they executed a mortgage bond for Rs. 700 to one Naurangi Singh to pay off these hand notes together with interest which at that time had amounted to Rs. 45 and took a further loan of Rs. 205 for the purpose of carrying on the cultivation of their property. In the case of the hand notes, each of the hand-notes recites that the money was borrowed for the purpose of carrying on litigation with one Muniar Singh, who was claiming portions of the Land of the borrowers. On 19th October 1909, the defendants advanced a sum of Rs. 1,500 on a registered mortgage bond and the money was stated in the bond to be required as to Rs. 815 thereof to pay off the principal and interest secured by Naurangi''s bond and as to Rs. 685, a further loan in cash from the defendants the borrowers representing that they wished to finance the further legal proceedings in connection with the fight against Muniar Singh. Then in March 1912, the defendants lent to the same borrowers a further sum of Rs. 500 on a mortgage bond to meet the costs of still further, proceedings in the same litigation and the fact of the earlier bond was recited. There is no doubt that on the evidence the litigation referred to in fact took place, and in October 1913, there was a further mortgage bond executed by the borrowers in favour of the defendants for a sum of Rs. 800 to meet a number of requirements: firstly, the expenses of a criminal case, secondly, certain household expenses and, thirdly, certain cultivation expenses which had been incurred owing to the draught which had occurred in that particular year. In this case also the earlier bonds were recited, and it has been proved further that the criminal proceedings mentioned in the bond also in fact took place. The total sum that was borrowed from the defendants was therefore some Rs. 2,800. In 1917 the defendants started a suit on the three mortgage bonds against the father of the present plaintiffs and plaintiffs Nos. 1 and 2. The grandfather had by that time died and the plaintiff No. 3 was not at that time born. A guardian ad litem was appointed on behalf of the minor defendants, who are now plaintiffs Nos. 1 and 2 and he duly took the point in argument that the debts which were secured by the bonds were not for the purposes of family necessity and were not binding upon plaintiffs Nos. 1 and 2; but that contention was overruled by the Judge and there was a judgment in the month of April 1917, for a sum of Rs. 5,445 in favour of those who are the present defendants the lenders of the money. Execution was taken out and the property was sold for a sum which was more than sufficient to cover the amount of the judgment debt.

There is no doubt that plaintiffs Nos. 1 and 2 were parties to the suit of 1917; they were present through their guardian ad litem when the preliminary decree was drawn up and they were also present and apparently took part in the proceedings in execution. It is now urged by them that they received no notice of the proceedings to draw up the final decree and it is said on their behalf that the guardian was negligent in not taking the point that the notice to draw up the final decree had not been served upon them at the time when the execution proceedings were taken up. But even if the guardian ad litem had taken up this point, it could by very easy means have been rectified and it would have been impossible in any case for the guardian ad litem on behalf of the minors to have substantially delayed the ultimate proceedings in execution. Moreover the burden of proof that the guardian did not in fact receive notice of the proceedings has not been discharged In due course, the property, as I have said, was sold and possession was granted to the auction-purchasers, who are the present defendants and who were the creditors in the suit.

It is not necessary to go into the legal merits of the point of limitation raised by the defendants because the case is really concluded on the facts. The sale has been effected and possession has passed to the auction-purchasers. It is necessary therefore for the plaintiffs to set aside that sale, and in such circumstances, the burden is entirely upon them to establish the necessary facts.

Now the learned Subordinate Judge has devoted a considerable part of his judgment to an analysis of the character of the vanished grandfather and the deceased father and he has come to the conclusion that if not those two persons at least one of them were in fact consumers of bhang and ganja. He has not however in any way connected the debts whether considered as mortgages or considered as the original borrowings on the hand notes with the habits of those persons. It is of no avail to show that a deceased parent was addicted to vicious habits unless it be established that the particular debts which it is sought to attack are connected with those habits and were incurred with the object of indulging in them. In the particular case before us the evidence establishes very clearly that the debts in question were in fact incurred with the ostensible objects which are recited in the hand notes and in the bonds, with which we have more directly to deal. The learned Judge has entirely overlooked this burden upon the plaintiffs. Indeed he expresses doubt and reluctance in finding that the grandfather and the father had in fact the habits that he attributed to them. The plaintiffs have therefore failed in discharging the very first onus which is cast upon them.

With regard to the allegation of negligence on the part of the guardian in representing the plaintiffs, we can see no evidence in support of that contention. The guardian did in fact at the hearing of the suit make an attempt to raise the question of the want of necessity and that contention was dealt with on its merits. It is clear also that at the execution proceedings he took part with the father in raising the usual obstacles in the path of a creditor who wishes to recover the amount granted to him by a decree of Court and judging from the numerous legal proceedings that were taken with his assistance at the expenses of his wards, no negligence whatever can be imputed to him. In the trial of the case there was some attempt to argue that the guardian had colluded with the defendants in not raising the necessary defenses but that argument has very properly not been persisted in before us and is quite unworthy of any attention. There is no evidence of collusion, there is no evidence that the guardian did not properly represent the parties, and in my opinion, the matter is really covered as a matter of res judicata, the merits having been gone into. It is, as I have said, not necessary to discuss the other legal aspects of the matter, our finding of the facts being quite decisive on the case, whatever be the merits of those legal points. It is clear that the judgment of the learned Subordinate Judge setting aside the sale and the decree and the transactions upon which the decree and the sale were based cannot be supported and this appeal must be allowed with costs.

There must be an order under O. 33, R. 11, Civil P.C., directing the plaintiffs to pay the court-fees which they would have had to pay if they had not been permitted to sue as paupers.

FazI Ali, J.

I agree.