Kamalambal, Achi vs Rajamanickam and others

Jagadisan, J.—This is an appeal against the decree and judgment in O. S. No. 32 of 1955 on the file of the Court of the Subordinate Judge,

Dindigul, granting a decree in favour of the plaintiffs setting aside the decree in an earlier suit between the parties, and granting a declaration that the

sale deed dated 17th January 1941, executed by the third defendant in favour of the first defendant is void and granting a decree for redemption of

a mortgage. The first defendant is the appellant. The three plaintiffs in the suit are the sons of the third defendant. The third defendant executed the

mortgage dated 25th March 1937 Ex. A. 1 over the plaint items 1 and 2, the first item being a nanja land of an extent of 1 acre 22 cents and the

second item being a nanja land of an extent of 4 acres 76 cents in favour of the first defendant for a sura of Rs. 3700 which he admittedly

borrowed from the first defendant. The father of the third defendant, Rajalingam and some others also joined in the execution of the mortgage but it

is unnecessary to refer to the other executants as the properties were subsequently allotted to the third defendant in a family partition between him

and his other sharers as evidenced by Ex. A. 2 dated 5th Jan. 1940. On 15th January 1941 the third defendant paid a sum of Rs. 1000 to the first

defendant towards the mortgage, obtained a release of plaint item 2 and conveyed it in favour of his two wives Veerammal and Singarammal under

the registered conveyance Ex. A. 3. On the same day as Ex. A. 3 the third defendant conveyed plaint item 1 in favour of the first defendant for a

sum of Rs. 2700 which remained due and payable by him under the mortgage. The maternal grand-father of the plaintiffs filed the suit O. S. No.

239 of 1947. on the file of the District Munsif''s Court, Dindigul, acting as the next friend of the minor plaintiffs challenging the third defendant''s

sale in favour of the first defendant and praying for redemption of the mortgage under Ex. A. I. The plaintiffs succeeded in the trial Court and

obtained a decree for redemption in respect of their share of the property. But on appeal by the first defendant in A. S. No. 52 of 1948 on the file

of the Sub Court, Dindigul, the judgment and decree of the trial Court were set aside and their suit was dismissed. The plaintiffs thereafter

preferred a second appeal to this Court. S. A. No. 929 of 1949 and this Court by its judgment dated 7th January 1954 confirmed the judgment of

the lower appellate Court. This suit has therefore been laid by the plaintiffs to get rid of the judgment and decree of the earlier proceedings. The

second defendant in this suit is the father of the first defendant who died during the pendency of the suit. The fourth defendant was brought on

record as his legal representative, but she also died. No further legal representative was brought on record as the first defendant herself is the legal

representative of the deceased second defendant.

The contention of the plaintiffs in this suit is that the judgment and decree in the earlier suit have to be set aside as the proceedings in that suit

were vitiated by acts of gross negligence on the part of the next friend who represented them in those proceedings. The plaintiffs also impugned the

sale deed by the third defendant in favour of the first defendant as having been brought about by fraud and deception which the first defendant with

the help and connivance of her father, the second defendant, is alleged to have practised upon the third defendant. The mortgage by the third

defendant in favour of the first defendant was not impugned and the plaintiffs claimed that they were entitled to redeem the mortgage subject to the

benefits claimed by them as agriculturists under the Madras Agriculturists Relief Act.

The first defendant contested the suit on the ground that the judgment and decree in the previous suit operated as res judicata, that the charge of

gross negligence levelled by the plaintiffs against their next friend was baseless, and that the sale deed obtained by her was valid and free from any

taint or fraud.

The learned Subordinate Judge of Dindigul who tried the suit found that the proceedings in the earlier suit, O. S. No. 239 of 1947, on the file of

the District Munsif''s Court, Dindigul, cannot bind the minor plaintiffs as the next friend who represented them in that action was guilty of gross

negligence in not having conducted the suit properly and efficiently. He also found that the sale deed by the third defendant in favour of the first

defendant was not a valid sale deed which would bind the plaintiffs as the third defendant, the father of the plaintiff, executed it only in the belief

that it was a draft sale deed and not a completed transaction. On these findings the learned Subordinate Judge granted a decree in favour of the

plaintiffs setting aside the decree in A. S. No. 52 of 1948 on the file of the Sub Court, Dindigul, confirmed by this Court in S. A. No. 929 of 1949

and declaring that the sale deed dated 17th January, 1941 is void and inoperative and that the amount due to the first defendant on the mortgage

Ex. A-l as scaled down under S. 9-A of Madras Act IV of 1938 was only a sum of Rs. 911-8-0 and that the plaintiffs were entitled to redeem the

mortgage on payment of that amount. This is the decree appealed against by the first defendant.

The main question that has to be determined in this appeal relates to the binding character of the prior proceedings which commenced by the

institution of the suit O. S. No. 239 of 1947 and terminated in the judgment of this Court in S. A. No. 929 of 1949 against the plaintiffs. Ex. A-1

dated 25th March, 1937, is the registration copy of the other deed executed by the third defendant and others in favour of the first defendant for a

sum of Rs. 3700; There is no dispute that this mortgage transaction is valid and binding upon the plaintiffs. This mortgage comprised two items of

property, the plaint first item which is a double crop nanja land which is irrigated by the Periyar Irrigation Scheme of an extent of one acre 22

cents; and plaint item 2 which is a punja land of an extent of 4 acres 76 cents with a well, piccotah and other facilities for irrigation. The first plaintiff

was born on 4th December, 1953. The second plaintiff was born on 4th February, 1937, and the third plaintiff on 8th September, 1943. The third

plaintiff was not born on the date of the sale deed by the third defendant in favour of the first defendant. The third defendant was in straitened

circumstances when he conveyed the property, plaint item 1, to the first defendant. He appears to have been on terms of cordiality and friendship

with the second defendant, the father of the first defendant, who was carrying on money-lending business at Veerapandi. On 29th July, 1940, the

third defendant wrote a letter to the second defendant, Ex. B. 6 appealing to the second defendant that he should take a sale of nanja lands and

release the punja lands in his favour after receiving some cash. Therein he described the 2nd defendant as his ""elder brother, father and guru."" The

following passage in that letter may be usefully referred to:

This matter should be finished in one week or ten days. That is as regards the field and the garden usufructuary mortgaged to you; you should

undertake to pay the remaining debts that I have, and take a sale of the entire land, or take a sale of the nanja land alone and release the garden in

my favour, after receiving any amount whatever in cash, it is with the garden that I have to discharge the other debt that still remains (that is) the

simple debt of Rs. 1,500 excluding the usufructuary mortgage debt. There is no other way to discharge the debt in a different manner.

The third defendant again wrote another letter Ex. B-7 dated 25th September, 1940, to the second defendant stating that he had made

arrangements through the womenfolk of his family for the payment of the money demanded by the second defendant and requesting that the sale

should be completed. He stated thus in that letter :

It appears that If this opportunity is missed, trouble would arise in future, Hence soon have a consultation regarding these matters come to a

decision and help me... I am prepared to do you till my lifetime in every manner the help that lies in my power and trust in you.

These letters unmistakably show that it was the third defendant who was anxious to sell the nanja land to the second defendant or his daughter,

the first defendant, and to obtain a release of the punja lands so that he might from out of the income of the punja lands discharge his other debts.

The third defendant and one OJayar Pillai, who has been examined as P.W. 2 in the case proceeded to Devakottah where the second

defendant was residing on 13th January 1941. The 2nd defendant was at that time not in Devakottah but had gone to Tiruvarur. Coming to know

of that the third defendant wrote Ex. B. 8 dated 13th January 1941 to the second defendant requesting him to return to Devakottah as early as

possible and stating that he had come with money and was waiting to finish the transaction. The following note in that letter as a postscript shows

the anxiety of the third defendant: ""Urgent: come immediately. We are waiting without going even for Sankaranthi Pongal."" This letter was

addressed to the 2nd defendant at Tiruvarur. On the next day, 14th January, 1941, the 3rd defendant again wrote to the second defendant to his

Tiruvarur address asking him to treat this letter, Ex. B. 9, as a telegram and asking him to come to Devakottah to complete the transaction. The

2nd defendant arrived at Devakottah on 15th. January 1941, On that day admittedly the 3rd defendant paid a sum of Rs. 1000 to the first

defendant who agreed to release the punja property, plaint item 2, from the other in her favour.

The third defendant executed a sale deed in favour of his two wives, Veerammal and Singarammal, Ex. A. 3 dated 15th January 1941, where in

it was recited that the consideration of the sum of Rs. 1000 was paid towards the mortgage in favour of the first defendant. The sale deed is (sic)ed

by Odayar Pillai. P.W. 2, the second defendant as well as the first defendant. The 3rd defendant himself was the serine of the document. On the

same day the (sic)st defendant passed the receipt Ex. A. 6, in favour of Singarammal and Veerammal, the two wives of the third defendant, in

whose favour he conveyed the punja lands. The parties are agreed that as a result of this transaction the liability of the 3rd defendant under the

mortgage was reduced to a sum of Rs. 2700 that the mortgagee the first defendant released plaint item 2 and that plaint item 2 was validly

conveyed by the 3rd defendant to his wives.

How was plaint item 1 dealt with on that date is the question on which parties are seriously in dispute. Ex. A. 4 dated 17th January 1941 is the

registered sale deed by the third defendant in favour of the first defendant for a sum of Rs. 2700 in respect of plaint item 1. That document recites

the receipt of Rs. 1000 from Veerammal vagaira towards the pre-existing mortgage and recites further that the conveyance is executed for the

balance of Rs. 2700 still due under the mortgage. The third defendant''s case is, as evidenced by his testimony as P.W. 1, that there was no

completed sale intended to be brought about under Ex. A. 4. According to him the second defendant represented that Ex. A. 4 was only a draft

sale deed. Ex. A. 4. was of course not on stamped paper as no stamp was necessary in view of the fact that the properties conveyed were already

the subject matter of an usufructuary mortgage in favour of the vendee and the conveyance was for the mortgage amount due. The 3rd defendant

has deposed that he was not willing to sell the property for any amount less than Rs. 5000, that ultimately the bargain was struck at Rs. 4000, that

the second defendant promised to have a promissory note for Rs. 300 which he had obtained from the third defendant discharged and also to pay

a further sum of Rs. 1000 in cash and that the amount of Rs. 2700 was mentioned in the sale deed only with a view to avoid expenses on stamp. It

is not necessary for us to discuss the question as to whether in fact defendants 1 and 2 promised to pay the third defendant more than the purchase

price mentioned in the document as such a promise even if true will not detract from the completeness of the transaction, if really it was otherwise

complete. The circumstances on which the plaintiffs relied to show that Ex. A. 4 must have been intended by the parties only as a draft transaction

are, non-attestation of that document by persons who attested Exs. A. 3 and A. 5 and its attestation by one person from Alliagaram and another

person from Theni both being not residents of Devakottah, the refusal on the part of the 3rd defendant to have the document registered in the

normal course and in the usual manner and his repudiation of that transaction very soon after it was brought about. It should be noted that Ex. A. 4

was registered at the instance of the first defendant resorting to proceedings for compulsory registration.

We are unable to accept the case of the third defendant that Ex. A. 4 was a mere draft sale deed which he signed in the belief that it was

merely tentative and not final. The second defendant had admittedly lent a sum of Rs. 300 to the third defendant under a promissory note. It was

the third defendant''s case that as part of the sale transaction this promissory note was agreed to be discharged and cancelled. The second

defendant however filed a suit upon the promissory note in O. S. No. 210 of 1941 on the file of the District Munsif''s Court, Periyakulam. In that

suit the 3rd defendant filed a written statement which is Ex. B-10 in the case. It is significant to note the following admission made by the 3rd

defendant in Ex. B-10:

According to the agreement so arrived at, the sale deed was executed in favour of the wives of this defendant on 15th January 1941, the date of

the agreement, and the sale deed was also executed in favour of Kamalammal Achi, daughter of the plaintiff on 17th January 1941, at Devakottah

and completed.

Kamalammal Achi therein referred to is no other than the first defendant in this suit. There is absolutely no suggestion in that written statement

filed by the third defendant that Ex. A-4 was executed by him in the belief that it was merely a draft sale deed. On the other hand he candidly

admitted that the sale deed was executed at Devakottah by him and was also completed. The fact that the third defendant changed his mind

subsequent to the execution of Ex. A-4, repudiated it and drove the first defendant to resort to proceedings for compulsory registration is as much

consistent with the case of the first defendant that the third defendant tried to sabotage the transaction after it was once finalised, as it is with the

case of the third defendant that he merely executed it on the representation that it was a draft transaction. The admission of the third defendant in

Ex. B-10 certainly cuts at the very root of his present case about the nature of Ex. A-4. We have no hesitation in disagreeing with the finding of the

learned Subordinate Judge and in holding that Ex. A-4 was a regular sale deed brought about by the third defendant with full knowledge that it was

a complete transaction.

We shall now refer to the proceedings in O. S. No. 239 of 1947 on the file of the District Munsif Court, Dindigul. The plaintiffs were

represented by their maternal grandfather as their next friend in that suit. Defendants 1 to 3 in that suit are defendants 1 to 3 in this suit. The

judgment of the trial Court has been marked as Ex. A-9 in the case. The 3rd defendant supported the plaintiffs even in that suit. He put forward the

plea that the sale deed relied upon by the first defendant and sought to be set aside by the plaintiffs was not a valid transaction. Though the 3rd

defendant filed a written statement in that suit he did not give evidence in the case. With regard to the impugned sale the learned District Munsif

observed thus:

The document has been written by third defendant himself in the form in which sale deeds are usually written. For, there are references made at the

bottom of each page to corrections and interlineations made in the documents which it is not usual to find in only a draft. I therefore repeal the

contention on the part of the plaintiffs that defendants 1 and 2 should have obtained Ex. B-2 either by undue influence or under any other similar

act performed by them.

The learned Munsif further found that the price for which the third defendant conveyed the property to the first defendant was grossly

inadequate and he therefore set aside the sale so as not to bind the share of the plaintiffs in the property. He granted a preliminary decree for

redemption, partition and separate possession of the share of plaintiffs 1 and 2 in the suit property. There was an appeal by defendants 1 and 2 in

A. S. No. 52 of 1948 before the Sub Court, Dindigul, and the judgment in appeal has been marked as Ex. B-l1 in the case. The learned

Subordinate Judge has found on the evidence that the property was conveyed by the third defendant for a proper and fair price. There was a

further appeal to this Court in S. A. No. 929 of 1949 preferred by the aggrieved plaintiffs and the judgment of this Court delivered by

Krishnaswami Nayudu, J., has been marked as Ex. B-12 in the case. The learned Judge accepted the finding of the lower appellate Court that the

sale was for a fair and proper price. The learned Judge observed thus in his judgment:

nothing is suggested as to why the third defendant had to sell away a property to the detriment of his interest for Rs. 2700 to the first defendant

who was the mortgagee with possession. The contention that Rs. 3700 is the mortgage amount that was advanced by the first defendant for the

nanja land of one acre 22 cents and another punja and that by sale of the punja a sum of Rs. 1000 was realised and for the identical amount that

was due on the mortgage the property was sold and that it is not likely that the mortgage amount would represent the correct value of the properly

has force; but it must be realised that the mortgage is a usufructuary mortgage where there is not much risk for the mortgagee so tar as any

accumulations of interest are concerned since he is realising the profits out of the property. It therefore cannot be deduced from the fact that a sum

of Rs. 3700 was advanced on the properties that the properties must have been much more valuable than the amount advanced. The learned

Subordinate Judge has also referred to the circumstances in which the third defendant was placed as regards his family liabilities and it is quite likely

that he considered that to sell the property for the amount due under the mortgage was most prudent in the interests of the family.

The proceedings in the earlier suit referred to above are now challenged by the plaintiffs on the ground that their next friend was guilty of gross

negligence in conducting the said proceedings. The first charge against the next friend is that he failed to expose the fraudulent character of the sale

deed, Ex. A. 4, which it is alleged was a draft by the third defendant, he having become a victim of fraud and imposition practiced by defendants 1

and 2. The plaintiffs averred that their next friend abandoned this plea of find at the trial of the earlier suit and such abandonment constitutes an act

of gross negligence on his part. They also averred that necessary evidence to substantiate the value of the property conveyed was not let in by their

next friend in the earlier suit. This charge is set out in the following way in paragraph 8 of the plaint:

Necessary evidence to substantiate the chain was not placed before the Court, Odayar Pillai who had come to Court after getting summons was

not examined as a witness; The plaintiffs submit that the next friend is guilty of gross negligence in not placing the relevant and available materials

before the Court, for establishing the fraudulent character of the transaction and the circumstances under which it was brought about and the

relationship between the two parties and how the situation was exploited by the 2nd defendant.

Odayar Pillai has now given evidence as P. W. 2. His evidence is that though he appeared in Court at the trial of the earlier suit on summons he

was not examined as a witness because the learned District Munsif who tried the suit said that the witnesses already examined were enough and

further witnesses were not necessary. He has also deposed that Sri T. Ramaswami Iyer, the learned Counsel who appeared for the plaintiffs in the

earlier suit said that the Court Was in the plaintiff''s favour and that the other witnesses need to be examined. P.W. 3 in the case is one Marriappa

Pillai who also states that he was summoned as a witness in the earlier suit and attended the Court on the date of the trial. His evidence is as

follows:

I was summoned as a witness and I came to Dindigal Court. Only one witness was examined that day. I was not examined. The Vakil and plaintiff

said that the Court had stated that one witness was enough and so the other witnesses would not be examined and that we could go.

When cross-examined he stated:

I got Court summons in the previous suit. I have lost it.

P.W. 4 is one Nainiappa Pillai and he has given evidence as follows:

I was summoned as a witness in that suit and I came. I know that value of the other land as well as the adjacent lands in that village I would have

deposed about the value of the lands if I had been examined on that day But I was not examined as the Court said that one witness was enough to

prove the value of the property having regard to the one document that he was entitled to in that case. Several other witnesses who had come there

were also sent back.

It is on this evidence in the case that the learned Subordinate Judge has held that the previous proceedings are vitiated by gross negligence on

the part of the next friend of the minor plaintiffs. The learned Subordinate Judge has referred to the observations in the judgment in the previous suit

and is of the opinion that if better evidence had been let in those proceedings the learned Judges who decided the suit on the former occasion

would have come to a different and contrary conclusion. It is obvious that the learned Subordinate Judge has failed to comprehend the correct

legal principles which should govern an action on behalf of a minor setting aside a previous judgment to which he was a party alleging fraud and

gross negligence on the part of the persons who represented him in that suit.

The judgment of a competent Court to which a minor is a party properly represented by a next friend or guardian binds the minor as much as it

binds a party who is of full age and an adult. So long as the minor is properly represented by a tit and proper person having no interest adverse to

that of the minor is an action or a proceeding the minor cannot seek to invalidate the result of the proceedings by reason only of the fact that he

happened to be a minor during that proceeding. But if the minor''s representative acted fraudulently or joined hands with the adversary of the minor

to the detriment of the minor or acted with culpable negligence the miner can on proof of such acts of fraud, collusion or negligence have the

proceedings set aside. If the minor was not properly represented at all, the proceedings will be completely null and void. The minors who are

victims of fraud, gross laches or culpable negligence of their next friend or guardian-ad litem should be protected. It is the duty of the Court to help

such victimised minors from out of the distress and in jury caused to them by reason of the misconduct of the next friend or guardian.

Halsbury in his Laws of England, Vol. 21. page 319 states the position thus:

An infant plaintiff is as much bound as an adult by a judgment or order in the cause, even though there may have been irregularities, in the conduct

of it, unless there has been fraud or gross negligence on the part of his next friend.

In In re Hoghton Law Rep. 18 Eq, Sir R. Mallians V. C. observed at p. 576 :

The question which I have to decide is whether this infant on whose behalf a decree was taken by consent in 1867 is to suffer by any negligence or

want of knowledge on the part of her than next friend. I am clearly of opinion she cannot be called upon to endure that inconvenience the

proposition that an infant of tender years may have her whole fortune wrecked by the neglect of her next friend is so monstrous that I cannot pay

attention to it. She is entitled to have a next friend who is diligent and will protect her interests.

This principle of English Law as administered in England was adopted as a rule of justice, equity and good conscience by a Division Bench of

the Calcutta High Court in the decision in Lalla Sheo Churn Lal v. Ramanandan 22 Cal. 8. 12 their Lordships observed thus :

It is clear that according to the law as administered in England, the gross negligence of his next friend would entitle an infant to obtain the avoidance

of proceedings undertaken on his behalf. We can see no reason why in this country an infant should be in a worse position. In cases outside

Calcutta we are bound, in the absence of statutory provision, to apply rules of equity and good conscience. These rules cannot be more restricted

than the rules of equity administered in England.

The rule is tersely stated thus by Trevelyan in his Book on the Law Relating to Minors at p. 284;

If he be properly represented by a next friend or guardian for the suit, and there be no fraud or collusion on the part of his next friend or guardian

or of the opposite party, and his next friend or guardian be not guilty of gross negligence a minor is as much bound by a decree or order made in a

suit or proceeding to which he is a party, whether it be made for his benefit or not, as if he were of full age, and it can be executed against him or

his property, as the case may be, in accordance with law.

There is a long catena of decisions in all the High Courts except the Bombay High Court upholding the principle that a minor can have an

adverse judgment and decree against him or her set aside on the ground of the negligent conduct of the next friend or the guardian which resulted in

such adverse judgment or decree. The leading decision of this Court is that reported in Ponnoyya v. Viranna 45 Mad. 425=15 L.W. 427, in which

it was held that a person who had been impleaded as a minor then represented by a guardian-ad-litem in a suit in which a decree was passed ex

parte against him can institute a suit to set aside that decree on the ground of gross negligence apart from fraud or collusion of the guardian-ad-

litem in not defending the suit on his behalf. In a subsequent decision of this Court in Egappa Chettiar v. Ramanathan Chettiar ILR 1942 Mad.

526=55 L.W. 43, Sir Lionel Leach C.J. and Kuppuswami Iyer J. have exhaustively reviewed the entire case-law on the subject and have held that

a minor can sue to set aside a decree passed against him in a suit not only on the ground of fraud or collusion but also on the ground of gross

negligence on the part of the next friend or guardian in the suit.

In Marudamuthu alias Veerappa Kandar Vs. P.S. AR. AR. Arunachalam Chettiar and Others, my Lord the Chief Justice and Panchapakesa

Aiyar J. affirmed the same principle. The head note to that decision is as follows:

It is now well settled law that a minor is not bound by a decree in a suit against him if he is able to show that his guardian was guilty of gross

negligence in the conduct of the suit. The principle of safeguarding the interests of a minor against the negligence of his guardian can be extended to

appeals and execution proceedings also. Where a guardian or his lawyer was negligent in not filing an appeal where one was certainly called for,

against a decision in a suit conducted by him, it will entitle the minor to reply on this principle. The principle is not one of natural justice or private

international law, but is peculiar to India.

What will amount to gross negligence in the conduct of a suit or failure to prefer an appeal or not engaging a sufficiently competent lawyer will

depend on the facts of each case.

The principle laid down in the decisions aforesaid clearly shows that a minor should not suffer by having had the misfortune of a next friend or

guardian who failed to discharge his duties properly and thereby caused injury to the ward.

Though the decisions uniformly used the expression ""gross negligence"" of the minor''s representative as a vitiating factor enabling the minor to have

prior judgments set aside, there is no basis for taking the view that the law makes a distinction in so far as the minor''s right to get rid off the evil

effect of a judgment is concerned between negligence and gross negligence. RelfeB observed in Wilson v. Brett 11 Messon and Neslby Report

113 at 115 thus :

I could see no difference between negligence and gross negligence-that it was the same thing, with the addition of a vituperative epithet;

The Judicial Committee in Talluri Venkataseshayyav. Thadikonda Kotiswara Rao 64 I. A. 17=45 L.W. 43 (P.C.) observed that the distinction

between negligence and, gross negligence was elusive but it must however be remembered that it is not very slight negligence on the part of the

minor''s representative, next friend or guardian-ad-litem, however small or trivial it may be that can be taken advantage of by the minor to nullify

the earlier proceedings. The expression ""gross negligence"" will therefore serve as an indicator for the standard of proof of negligence requisite to

set aside a prior judgment and decree at the instance of the minor.

We shall now discuss the question as to what is the standard of diligence required on the part of the next friend or guardian to conduct

proceedings on behalf of a minor and the absence of which will clothe the minor with a cause of action to set aside the proceedings. In Brij Baj v.

Ram Sarup 48 All. 44, a Division Bench of the Allahabad High Court observed that the expression ""gross negligence"" has no definite meaning. At

page 55 their Lordships observed thus :

Negligence is the branch of a legal duty to take care and until we know what the duty is in the particular instance we are unable to predicate

whether there has been negligence or not. The standard of due care in all cases in which a duty to take care exists is the case which would betaken

in the same circumstances by an ordinary careful man. The test is the conduct of the average man in like circumstances and with like knowledge

and means of knowledge, and obviously the amount of care will be different in different cases, for as observed.......The case we arc dealing with

here is that of a person appointed as guardian-ad-litem to look after the interests of an infant defendant and the standard of duty is in this case that

which would be followed by the man of ordinary prudence if he were called upon to act in like circumstances on behalf of himself and his own

property. He must do as much to protect the interests of the minor as he would do to protect his own.

In Siraj Fatma v. Mahmud Ali 54 All 646 (F.B.) a Full Bench of the Allahabad High Court considered the question and Sir Shah Muhammad

Sulaiman, C. J. observed thus at page 669;

Of course, every sort of negligence, however trivial would not be a sufficient ground, for there may be some negligence the effect of which may not

be prejudicial to the interests of the minor. The negligence in order to be a good ground for the avoidance of a decree must be of such a nature as

to justify the inference that the minor''s interests were not at all protected and these fore he was not properly represented. The direct result of the

negligence must be a serious prejudice to the miner and the negligence must not be merely such as might be innocently committed even by a

reasonable person taking the ordinary precautions which he would have taken in his own case. Where the negligence is so gross as to amount to a

clear violation of the duty cast upon the guardian, although not brought to the notice of the Court at the time, the decree can be avoided.

In Mahesh Chandra Bayan v. Munindra Nath Das ILR (1941)1 Cal. 477, Mukherjea, J. as he then was, observed thus at page 488 :

Of course the Court would interfere only when there is gross and culpable negligence which caused serious prejudice to the minor and the infant

cannot sue simply because the guardian ought to have acted with more prudence. I agree with Sulaiman, C.J. in the view expressed in the case of

Siraj Fatma v. Mohamad Ali that the negligence 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 minor''s interests were not at all protected, and, in substance, though not in form the minor went

unrepresented in the trial Court.

In Visweswara Rao v. Surya Rao 59 Mad. 667=43 L.W. 349, Stone, J. as he then was observed thus at page 691 :

In my opinion before a Court guardian can be charged with gross negligence and a decree of a Court set aside on that ground, very cogent

evidence is necessary to show that no reasonable man could fairly have behaved as the Court guardian in question behaved.

The gist of the cause of action for a minor to set aside proceedings to which he or she was a party represented by a next friend or guardian seems

to be an act or conduct on the part of the representative sacrificing and letting down the interests of the minor whether as a result of fraud or

collusion or gross negligence. In order to test whether the next friend or the guardian discharged his duties evincing interest in the cause of the

minor the question can be posed whether he would have acted in the manner in which he did if the cause had been his own. If he acted reasonably

and with the caution and care of an ordinary man of prudence he has not merely vindicated himself but the minor also cannot challenge the

proceedings on the ground that had he exercised greater diligence and displayed more prudence than what he did, the proceedings would have

ended favourably to the minor. It is always possible for people to acquire wisdom in the light of past experience. The remedy which the law gives

to a minor to impugn judgments for alleged gross negligence on the part of a next friend or a guardian is not intended to enable the minor to

improve his position in the light of the experience gained in the course of the proceedings which resulted in that judgment.

Learned Counsel for the respondent strongly relied upon a decision of this Court in Ayya Pillai v. Ayyadurai Gounden 67 M.L.J. 927. In that

case what the guardian did in the prior proceedings impugned by the minor is stated thus by Krishnan Pandalai, J., at p. 933:

The 4th defendant was this plaintiff who appeared by his guardian-ad-litem, his mother. She did not appear by Vakil but personally appeared at

the time of framing the issues as the records of that case show and admitted the plaintiff''s claim. For anything that we know and in fact there is no

evidence to the contrary that is all that she did in the whole litigation. She took no more part or interest either in the Munsif''s Court in which the

plaintiff won or in the appellate Court or second appellate Court where eventually he lost.

Then again at page 938 it is observed thus:

I have no doubt that considering, the evidence then available and considering that the plaintiff''s guardian did nothing to bring it forward before the

Court it is no answer to say now that even if it had been brought forward the Court might have fallen into an error.

That was a case of a complete inaction on the part of a guardian in conducting the proceedings on behalf of the minor. We do not see how that

case can help the respondent to contend that a mere failure on the part of the guardian to produce the evidence that was produced in the

subsequent case can help the minor to sustain a charge of gross negligence against the guardian.

In the present case the charge of the plaintiffs that the next friend in the earlier suit failed to produce the necessary evidence does not seem to

be well founded. P. Ws. 2, 3 and 4 categorically stated that witnesses were present in Court with the documentary evidence to prove the value of

the property conveyed by the third defendant in favour of the first defendant. According to them the learned District Munsif who tried the suit was

not inclined to record further evidence than what he did. The plaintiffs were represented by a senior lawyer practising at Dindigul, Sri T.

Ramaswami Iyer. If their learned Counsel thought that discretion was the better part of valour and sailed with the Court smoothly so as to get a

verdict in favour of his clients the charge of negligence cannot certainly be levelled against the next friend of the minor plaintiffs.

The learned Subordinate Judge has observed that if some more evidence had been adduced on behalf of the plaintiffs in the earlier suit

probably the learned Subordinate Judge and this Court would have confirmed the decree passed by the learned District Munsif. This is mere

speculation. The learned Subordinate Judge has observed that the learned District Munsif who tried the earlier suit cut short the course of trial by

not permuting such evidence as was sought to be adduced on behalf of the plaintiffs. There is no warrant for this observation except the oral

testimony on the side of the plaintiffs which it is not safe to rely upon. But if all the evidence which the plaintiffs could have produced was produced

even during the trial of the earlier suit but was not taken in by the Court the charge of negligence against the next friend of the plaintiffs fails.

It is contended on behalf of the respondent that the next friend of the minor plaintiffs abandoned the plea that the sale deed was not a genuine

transaction and that such abandonment amounts to gross negligence on the part of the next friend. It is obvious that the third defendant himself had

no faith in the ten ability of his contention that he signed the sale deed believing it to be a mere draft. The third defendant did not choose to step into

the witness box during the course of the trial of the first suit. No doubt he has now made amends for that lapse by getting into the witness box. The

next friend of the minor plaintiff must have been in close contact with the third defendant even in the course of the prior proceedings and he must

have been guided only by the third defendant. It is not correct to state that there was any abandonment of the plea by the next friend. The learned

District Munsif who tried the earlier suit has recorded a finding practically overruling the plea that the sale deed was signed not as a regular

transaction but as a mere draft. We have found as a fact in this case that the sale deed was a regular, genuine and a proper transaction.

We are clearly of opinion that this is a case in which there is not an lots of evidence to prove negligence much less gross negligence on the part

of the next friend of the minor plaintiffs who represented them in the prior suit. There are absolutely no grounds for setting aside the judgment and

decree in A. S. No. 52 of 1948 on the file of the Sub Court, Dindigul, affirmed by this Court in S. A. No. 929 of 1949. If the judgment in the

earlier suit were to stand it operates as res judicata and the plaintiffs cannot have any relief in this suit. We hold that the judgment and decree in the

prior suit operate as res judicata, there being no ground enabling the plaintiffs to have them set aside. It follows that no other question need be

discussed. The appeal is allowed, the judgment and decree of the learned Subordinate Judge are set aside and the suit O. S. No. 32 of 1955 is

dismissed. Parties will bear their respective costs both here and in the Court below. The court-fee payable on the plaint will be paid by the plaintiffs

to the State Government.