Kamalambal Achi vs Rajamanickam and Others

Jagadisan, J.—This is an appeal against the decree and judgment in Original Suit No. 32 of 1955, on the file of the Court of the Subordinate Judge of 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, exhibit, A-1 over the plaint items 1 and 2, the first item being a nanja land of an extent of one acre twenty-two cents and the second item being a punja land of an extent of four acres seventy-six cents in favour of the first Defendant for a sum of Rs. 3,700, 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 exhibit A-2, dated 5th January 1940. On 15th January 1941, the third Defendant paid a sum of Rs. 1,000 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, exhibit A-3. On the same day as exhibit A-3, the third Defendant conveyed plaint item 1 in favour of the first Defendant for a sum of Rs. 2,700, which remained due and payable by him under the mortgage. The maternal grandfather of the Plaintiffs filed the suit Original Suit No. 239 of 1947, on the file of the District Munsiff''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 exhibit A-1. 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 Appeal Suit No. 52 of 1948, on the file of the Sub-Court of Dindigul the judgment and decree of the trial Court were set aside and their suit was dismissed. The Plaintiffs thereafter preferred a second appeal in this Court, Second Appeal 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 in 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 he 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 of fraud.

The learned Subordinate Judge of Dindigul who tried the suit found that the proceedings in the earlier suit. Original Suit No. 239 of 1947, on the file of the District Munsiff''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 Plaintiffs 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 Appeal Suit No. 52 of 1948, on the file of the Sub-Court, Dindigul, confirmed by this Court in Second Appeal No. 929 of 3949, 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, exhibit A-1, as scaled down u/s 9A 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 a 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, Original Suit No. 239 of 1947, and terminated in the judgment of this Court in Second Appeal No. 929 of 1949, against the Plaintiffs. Exhibit A-1, dated 25th March 1937, is the registration copy of the othi-deed executed by the third Defendant and others in favour of the first Defendant for a sum of Rs. 3,700; 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 twenty-two cents; and plaint item 2 which is a punja land of an extent of four acres seventy-six cents with a well, piccotah and other facilities for irrigation. The first Plaintiff was born on 4th December 1935, and attained majority on 4th December 1953. The second Plaintiff was born 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 Vecrapandi. On 29th July 1940, the third Defendant wrote a letter to the second Defendant, exhibit B-6, appealing to the second Defendant that he should take a sale of the nanja lands and release the punja lands in his favour after receiving some cash. Therein he described the second 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 usufructuarily 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, exhibit 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 Odayar Pillai, who has been examined as P.W. 2 in the case proceeded to Dcvakottah where the second Defendant was residing, on 13tli January 1941. The second Defendant was at that'' time not in Devakottah but had gone to Tiruvarur. Coming to know of that the third Defendant wrote exhibit 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 second Defendant at Tiruvarur. On the next day, 14th January 1941, the third Defendant again wrote to the second Defendant to his Tiruvarur address asking him to treat this letter, exhibit B-9, as a telegram and asking him to come to Devakottah to complete the transaction. The second Defendant arrived at Devakottah on 15th January 1941. On that day admittedly the third Defendant paid a sum of Rs. 1,000 to the first Defendant who agreed to release the punja property, plaint item 2, from the othi in her favour.

The third Defendant executed a sale deed in favour of his two wives, Veerammal and Singarammal, exhibit A-3, dated 15th January 1941, wherein it was recited that the consideration of the sum of Rs. 1,000 was paid towards the mortgage in favour of the first Defendant. This sale-deed is attested by Odayar Pillai, P.W. 2, the second Defendant as well as the first Defendant. The third Defendant himself was the scribe of the document. On the same day the first Defendant passed the receipt, exhibit A-5, in favour of Singammall 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 third Defendant under the mortgage was reduced to a sum of Rs. 2,700, that the mortgagee, the first Defendant, released plaint item 2 and that plaint item 2 was validly conveyed by the third Defendant to his wives.

How was plaint item 1 dealt with on that date is the question on which parties are seriously in dispute. Exhibit 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. 2,700 in respect of plaint item 1. That document recites the receipt of Rs. 1,000 from Veerammal vagaira towards the pre-existing mortgage and recites further that the conveyance is executed for the balance of Rs. 2,700, 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 exhibit A-4. According to him, the second Defendant represented that exhibit A-4 was only a draft sale-deed. Exhibit 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 third Defendant has deposed that he was not willing to sell the property for any amount less than Rs. 5,000, that ultimately the bargain was struck at Rs. 4,000, 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. 1,000 in cash and that the amount of Rs. 2,700 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 exhibit A-4 must have been intended by the parties only as a draft transaction are, non-attestation of that document by persons who attested exhibits A-3 and A-5 and .its attestation by one person from Alliagaram and another person from Then both being not residents of Devakottah, the refusal on the part of the third 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 exhibit 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 exhibit 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 ease that as a 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 Original Suit No. 210 of 1941 on the file of the District Munsiff''s Court, Periyakulam. In that suit the third Defendant filed a written statement which is exhibit B-10 in the case. It is significant to note the following admission made by the third Defendant in exhibit 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.

Kanalammal 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 exhibit 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 exhibit 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 exhibit B-10 certainly cuts at the very root of his present case about the nature of exhibit A-4. We have no hesitation in disagreeing with the finding of the learned Subordinate Judge and in holding that exhibit 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 Original Suit No. 239 of 1947, on the file of the District Munsiff''s 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 exhibit A-9 in the case. The third 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 third 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 Munsiff 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 repell the contention on the part of the Plaintiffs that the Defendants 1 and 2 should have obtained exhibit B-2 either by undue influence or under any other similar act performed by them.

The learned Munsiff 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 Appeal Suit No. 52 of 1948, before the Sub-court of Dindigul and the judgment in appeal has been marked as exhibit B-11 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 Second Appeal No. 929 of 1949, preferred by the aggrieved Plaintiffs and the judgment of this Court delivered by Krishnaswamy Nayudu, J., has been marked as exhibit 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. 2,700 to the first Defendant who was the mortgagee with possession. The contention that Rs. 3,700 is the mortgage amount that was advanced by the first Defendant for the nanja land of one acre twenty-two cents and another punja and that by sale of the punja, a sum of Rs. 1,000 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 property has force; but it must be realised that the mortgage is a usufructuary mortgage where there is not such risk for the mortgagee so far 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. 3,700 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, exhibit A-4, which it is alleged was a mere draft by the third Defendant, he haying become a victim of fraud and imposition practised by Defendants 1 and 2. The Plaintiffs averred that their next friend abandoned this plea of fraud 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 claim was not placed before the Court. Udayar Pillai who had come to Court sifter 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 bi ought about and the relationship between the two parties and how the situation was exploited by the second 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 Munsiff 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 not be examined. P.W. 3 in the case is one Mariappa 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 Dindigul 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 othi 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 in 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 judgments in the previous suit and is of the opinion that if better evidence had been let in 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 for 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 fit and proper person having no interest adverse to that of the minor in an action or a proceedings 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 minor 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 injury caused to them by reason of the misconduct of the next friend or guardian. Halsbury in his Laws of England, volume XXI, 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 re Hoghton (1874) L.R. 18 Eq. 573 Sir R. Mallins V.C., observed at page 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 then 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 1he decision in Lalla Sheo Churn Lal v. Bamnandam Dobey ILR (1894) Cal. 8. At page 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 page 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 Punnayyah v. Viranna ILR (1921) Mad. 425 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 v. Kamanatlum ILR [1942] Mad. 526 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 Ayyar, 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 rely 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 ease.

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 of the evil effect of a judgment is concerned between negligence and gross negligence. Rolfe B., observed in Wilson v. Brett (1843) 152 ER. 737 at 739 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 Venkaie Seshayya v. Kotistwara Rao ILR [1937] Mad. 263 observed that the distinction between negligence and gross negligence was elusive but it must, however, be remembered that it is not every 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 Raj v. Ram Sarup ILR (1925) 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 breach 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 care which would be taken 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 eases, for as observed....

The case we are dealing with here is that of a person appointed as Jagadisan, J. 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 circumstance 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 ILR (1932) All. 646 (F.B.) a Full Bench of the Allahabad High Court considered the question and Sir Shah Muhammad Sulaiman, 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 interest 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 therefore he was not properly represented. The direct result of the negligence must be a serious prejudice to the minor 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 that time the decree can be avoided.

In Mahcsh Chandra Bayan v. Mahendra 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. Mahmud Ali ILR (1932) All. 646 (F.B.) 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 ILR (1935) Mad. 662 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 and yet things miscarried and affected the minor''s interests 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 then what lie 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 Goundan (1934) 67 M.L.J. 927. In that case what the guardian did in the prior proceeding impugned by the minor is stated thus by Krishnan Pandalai, J., at page 933:

The fourth Defendant was this Plaintiff who appeared by his guardiae-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 now 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 cither in the Minsif''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 ease 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. A wording to them the learned District Munsiff 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 Munsiff who tried the earlier suit cut short the course of trial by not permitting 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 tenability 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 Plaintiffs 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 Munsiff 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 iota 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 Appeal Suit No. 52 of 1948, on the file of the Sub-court, Dindigul, affirmed by this Court in Second Appeal 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 operates 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, Original Suit 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.