Nagamma Shedthi vs Korathu Hengsu and Others

Raghava Rao, J.—The suit out of which this appeal arises was instituted by respondents 1 to 6 before us in the Court of the Subordinate

Judge of South Kanara for a declaration that the decree obtained by the appellant against the family of themselves and respondents 7 to 9 and 19

in O.S. No. 387 of 1936 on the file of the Court of the District Munsif of Mangalore did not bind them. That was a suit filed by the appellant as

releasee of the suit properties from the auction purchaser thereof in execution of the decree in O.S. No. 39 of 1928, Sub-Court, South Kanara at

Mangalore, which had been obtained on the basis of a mortgage effected by the present fifth defendant, by the father of the present defendants 6

to 9 and by the father of the present defendants 10 to 12, who together with their sons and the 13th defendant, their step-brother were the mulgars

of the suit properties. The defendants in O.S. No. 387 of 1936 who contested it by filing a written statement were the mulgeni tenants, i.e., the

present defendants 2 to 4 who were the heads of the three branches of the undivided Aliyasanthana family of which the plaintiffs of the present suit

are the junior members. The appellant filed the suit (O.S. No. 387 of 1936, District Munsif Court, Mangalore) for arrears of rent and possession

of the properties comprised in the present plaint A and B schedules asserting, as is said by the present plaintiffs, falsely and fraudulently that she

was entitled to the entire mulgeni rental, although a portion thereof had been dedicated to Devata Viniyogas at the partition in the family of the

Bulgars, that the present plaint B schedule properties in addition to the present plaint A schedule properties formed part and parcel of the mulgeni

holdings and that the mulgeni lease had become forfeited for non-payment of the rent due. It is also alleged by the present plaintiffs in their plaint

that the appellant fraudulently managed to secure the collusion of defendants 2 to 4 and 14 and obtained a decree ex parte. Although defendants 2

to 4 had filed their written statements in answer to the action, their vakil, Mr. G. Somasekhara Rao reported no instructions, when the cause came

on for hearing. Defendants 2 to 4 were set ex parte, and a decree was passed, which is the subject-matter of challenge in the present suit, which is,

as may be expected, resisted by the first defendant on the ground that there was no fraud or collusion about the former decree obtained against the

heads of the family. The Additional Subordinate Judge who tried the cause in the Court below granted a decree to the plaintiffs against which the

first defendant has preferred this appeal.

It falls to be observed at the outset that there are no details of fraud or collusion given in the plaint and that the decree passed by the learned

Subordinate Judge is not based on any finding of fraud or collusion, as alleged in the plaint however, vaguely, so much as in a finding of gross

negligence on the part of defendants 2 to 4 in remaining ex parte at the time of trial of O.S. No. 387 of 1936, District Munsif. Court, Mangalore,

after and although they had raised various defences in their written statement. The learned Subordinate Judge has in a very exhaustive judgment

scrutinised in detail the merits of all the pleas raised, in the written statement in the former suit in the light of the evidence now adduced and has

upheld them all as valid pleas in fact which should have resulted in a non-suit of the plaintiff in the former action but for the gross negligence of

defendants 2 to 4. The raison d''etre of the deicision of the learned Subordinate Judge is contained in three short paragraphs of his long judgment

paragraphs 37, 41 and 42 which may be here reproduced:

By reason of the conduct of defendants 2 to 4 in the prior suit the family of the parties have been gravely prejudiced. A decree was allowed to be

passed for amounts which were not due to the first defendant. The first defendant was entitled to acquire possession of the B schedule properties

to which she had no title. She was enabled to acquire possession of the properties in the A schedule which alone were the subject-matter of the

mulgeni grant, even though there was no valid notice to quit and the lease had not been forfeited according to law

A consideration of the evidence establishes beyond doubt that the defendants 2 to 4 were grossly negligent in remaining ex parte at the time of trial

even though various defences had been raised in the written statement. The plaintiffs are entitled to have the decree set aside

On behalf of the first defendant it has been contended that it is nowhere alleged in the plaint, that the defendants 2 to 4 were guilty of gross

negligence, that the plaint proceeds on the footing that the decree was obtained fraudulently and collusively, and that in the absence of specific

mention of the fact that defendants 2 to 4 were guilty of gross negligence the decree cannot be set aside on that ground. It is argued that the plea of

gross negligence is a recent development at the trial. There is no force in this plea. Gross negligence that has been proved in this suit amounts to

fraud oh the rights of the family. The mere fact that the words ''gross negligence'' are not expressly used in the plaint cannot take away the right of

plaintiffs to avoid the decree. In Malabar and Aliyasanthana Law by P. R. Sundara Ayyar at page 90 it is stated as follows : ''In eases where the

action is brought to enforce obligations incurred by the karnavan or to enforce the consequences of a default of his, the dividing line between fraud

and failure to plead would generally be hard to delineate''.

It is clear that a decree against a karnavan is binding on the tarwad because of the representative character of the karnavan. He is the head and

representative of the family, but when gross breach of duty is proved as in this case, that amounts to fraud on the family and must be treated as

fraud upon his power. The decree in O.S. No. 387 of 1936 was obtained fraudulently. The defendants 2 to 4 failed to utilise the means of proof at

their disposal and have lost the tarwad properties, as a result of their negligence. In Durgamma v. Kechamayya (1924) 48 M.L.J. 351 gross

negligence was held to amount to fraud. The above argument on behalf of the first defendant is not entitled to force.

Mr. T. Krishna Rao, the learned advocate for the appellant, has attacked the soundness of the law which found favour with the learned

Subordinate Judge by the citation of a long list of decisions with the more important of which we shall presently deal. Mr. K. Y. Adiga for the

respondent has with his usual frankness agreed that, if the view of law adopted by the learned Subordinate Judge is rejected by us, the appeal must

be allowed without any need for us to go into the evidence about the pleas raised by defendants 2 to 4 in their written statements in the former suit

but not attempted to be proved by them at the trial of that suit.

The question for determination, therefore, is whether a decree obtained against the karnavan of a Malabar tarwad or the kartha of an

Aliyasanthana family can be held not binding on the junior members in the absence of any fraud or collusion as such on the ground of gross neglect

or breach of duty on the part of the karnavan or the kartha which must be treated as tantamount to fraud on the power of representation vested in

him. Judging the matter from the standpoint of principle as well as from the standpoint of binding precedents, we have arrived at the conclusion that

the view of law adopted by the lower Court is erroneous.

The principle governing the situation is, in our opinion, to be found in Explanation VI to Section 11 of the CPC which, so far as material for the

present purpose, provides that,

Where persons litigate bona fide in respect of ... a private right claimed in common for themselves and others, all persons interested in such right

shall, for the purposes of this section, be deemed to claim under the persons so litigating.

The explanation attracts the doctrine of res judicata to all cases falling within its terms, subject of course to the fulfilment of the other requirements

of the section. As may be seen from the language of the explanation, the test prescribed by it is that the former party must have litigated the

common private right bona fide. Bona fide means in good faith and that raises the question whether good faith could be predicated or postulated in

respect of a situation characterised by want of due diligence or by gross negligence. For the purpose of the Indian Limitation Act, we have in

Section 2 thereof the definition of good faith which enacts that, unless there is anything repugnant in the subject or context, nothing shall be deemed

to be done in good faith which is not done with due care and attention. Similarly, the Madras General Clauses Act I of 1891 provides in and by

Section 3, Clause 11 thereof that in this Act (Madras General Clauses Act I of 1891) and in every Madras Act made after the commencement of

this Act (Madras General Clauses'' Act I of 1891), unless there be something repugnant in the subject or context, nothing is said to be done or

believed in "" good faith "" which is done or believed without due care and attention. But barring all cases governed by special enactments of the kind

just referred to, we have for all other cases generally the definition in Section 3, Clause 20 of the Indian General Clauses Act X of 1897 which

provides that,

In this Act (Indian General Clauses Act X of 1897) and in all Central Acts and Regulations, made after the commencement of this Act (Indian

General Clauses Act X of 1897) unless there is anything repugnant in the subject or context- A thing shall be deemed to be done in ''good faith''

where it is in fact done honestly, whether it is done negligently or not.

The effect of the last mentioned provision, which is the material provision for the present discussion, is that a person must be deemed to have

litigated in good faith or bona fide within the meaning of Explanation VI to section ii, Civil Procedure Code, if he did litigate honestly, whether he

did so negligently or not. The onus of proving want of bona fides in respect of the previous litigation is on the party seeking to avoid the previous

decision and proof of negligence is not sufficient to establish such want of bona fides. For, as ruled by the Privy Council in Venkataseshayya v.

Kotiswara Rao (1937) 1 M.L.J. 113 : L.R. 64. IndAp 17 : E.R. 737 ILR 1937 Mad. 263 :

the provisions of Section 11 of the CPC are mandatory, and the ordinary litigant, who claims under one of the parties to the former suit, can only

avoid its provisions by taking advantage of Section 44 of the Indian Evidence Act which defines with precision the grounds of such avoidance as

fraud or collusion, or by showing a want of bona fides in the prosecution of the former suit. It is not for the Court to treat negligence or gross

negligence, as fraud or collusion, unless fraud or collusion is the proper inference from the facts.

Cases of infants of course do stand apart, as ruled by our High Court (differing from the view of the Bombay High Court to the contrary) in the

case reported in N.P.L. Egappa Chettiar Vs. Em.S.V.L. Ramanathan Chettiar and Others, apparently because the protection of minors against the

negligent actings of their guardians is, as observed by the self same Privy Council decision in Venkataseshayya v. Kotiswara Rao (1937) 1 M.L.J.

113 : L.R. 64. IndAp 17 : E.R. 737. ILR 1937 Mad. 263 , a special class of case. It may also be borne in mind in this connection that, gross

negligence, is the same thing as negligence with the addition of a vituperative epithet, to use the language of Rolfe, B., in Wilson v. Brett (1846) 11

M. W. 113. Even if there is a distinction between negligence and gross negligence it is, at any rate, elusive as Lord Thankerton describes it in

delivering the judgment of the Privy Council in the case reported in Venkataseshayya v. Kotiswara Rao (1937) 1 M.L.J. 113: L.R. 64. IndAp 17 :

E.R. 737. ILR 1937 Mad. 263 just mentioned.

It follows from the foregoing that as a matter of principle there is no reason why the gross negligence of a karnavan in conducting or defending a

suit should, when not amounting to fraud or collusion, be a ground for setting aside a decree to which he was a party as representing the tarwad.

And yet, we find the contrary laid down in the earliest Bench ruling of our High Court reported in Thenju v. Chimmu I.L.R.(1884)Mad. 413, in the

terms that, when breach or neglect of duty on the part ofa karnavan is established, the decree is not binding on the junior members. The basis of

the view is indicated in that decision to be this that the karnavan''s position in relation to the members of the tarwad being fiduciary, and his powers

being qualified by his position, any breach or neglect of duty on his part must be regarded as a fraud on his power which is only a qualified power.

This was assumed to be the law by all the three learned Judges who heard the case reported in Moidin Kutti v. Krishnan I.L.R.(1887)Mad. 322

(of whom one by the way, Muthuswami Aiyar, J., had been a party to the earlier decision), after a difference of opinion between two of them,

Kernan and Brandt, JJ., on another point at the original hearing of the second appeal, on which it was that the decision of the case eventually

rested, Muthuswami Aiyar and Brandt, JJ., taking one view on the point and Kernan, J., taking a contrary view. In our opinion, the law laid down

or assumed in these two decisions in Thenju v. Chimmu (1884) ILR 7 Mad. 413 and Moidin Kutti v. Krishnan (1887) ILR 10 Mad. 322 stands

overruled by the decision of a Full Bench of four Judges reported in Vasudevan Nambudri and Others Vs. Sankaran Nambudri and Others, which

answered in the affirmative the question referred to them which was in these terms:

Whether the decree made in a Suit in which the karnavan of a Nambudiri illom or a Marumakkattayam tarwad is, in his representative capacity,

joined as a defendant and which he honestly defends is binding on the other members of the family not actually made parties.

We need only further observe with reference to the Full Bench decision that, while all the learned Judges who participated therein, relied upon the

representative capacity and character of the karnavan in support of their conclusion, two of the learned Judges, Shephard and Subramania Ayyar,

JJ.-one at the bottom of page 139 of the report and the other at the bottom of page 142-referred in terms to Explanation V to Section 13, Civil

Procedure Code, then in force, which corresponds to Explanation VI to Section 11 of the present Code. Further, Collins, C.J., remarks at the

bottom of page 132

I take it that the word '' honestly'' means that the karnavan acted in good faith and in what he believed to be the interest of the tarwad.

Even as Davis, J., remarks at page 144:

...the only litigation that would be possible upon the judicial recognition of his i.e., the karnavan''s representative character would be confined to

actions founded on fraud on his part.

Similarly Subramania Aiyar, J., observes at page 143 of the report:

...unless there is shown in the words of Jessel, M.R., '' fraud or collusion or anything of that sort or that the Court was cheated into believing that

the case was fairly fought or fairly represented when in point of fact it was not '' (Commissioners of Sewers of the City of London v. Gellatly

(1876) 3 Ch. D. 610 a decision in a suit, defended by a karnavan in his representative capacity, must be held to be binding upon all those

represented by him.

On a careful study of the judgments delivered in Vasudevan Nambudri and Others Vs. Sankaran Nambudri and Others, we have no doubt left in

our minds but that the rulings in Thenju v. Chimmu I.L.R.(1884)Mad. 413 and Moidin Kutti v. Krishnan I.L.R.(1887) Mad. 322 with reference to

the point under consideration, of which it is true that the former is referred to in the judgment of Shephard, J., only on the Full Bench and the latter

is not referred to at all in the judgment of any Judge on the Full Bench, ceased to be good law after the Full Bench ruling by which they stood

virtually, if not in terms, overruled. The legal principle applicable to the situation with which we are concerned is even more definitely and

categorically stated by the learned Judges Benson and Bhashyam, Aiyangar, JJ., with reference to Explanation V to Section 13 of the CPC then in

force in the case in Madhavayya v. Keralavarma (1902) 13 M.L.J. 68, where the question which fell to be decided and which was answered in

the affirmative was whether the decree of dismissal of a suit by the karnavan in a representative capacity made as a result of his failure to file certain

material documents which would have assisted the case would or would not be binding on the junior members in the absence of fraud or collusion

in the conduct of the suit.

All these decisions were considered by Venkataramana Rao, J., in the case reported in Narayani and Others Vs. P. Sankunni Mannadiar and

Others, where it was held by the learned Judge that the cases in Thenju v. Chimmu I.L.R.(1884)Mad. 413 and Moidin Kutti v. Krishnan I.L.R.

(1887)Mad. 322 had not been referred to at all or at any rate much in and could not therefore be treated as overruled by Vasudevan Nambudri

and Others Vs. Sankaran Nambudri and Others, . We consider that the learned Judge erred in holding as he did. He grounds himself for his

conclusion on the observation of Mr. P. R. Sundara Aiyar in his book on Malabar and Aliyasanthana Law at page 98, namely, that a minor is not

precluded from bringing a suit to set aside a decree on the ground of the gross negligence of the guardian either by Section 11 or by Order 9, Rule

9, CPC and that the same reasoning would apply to the case of junior members of a Marumakkattayam or Aliyasanthana family. Referring to

Thenju v. Chimmu I.L.R.(1884)Mad. 413 , Mr. Sundara Aiyar made the observation earlier in his book at page 92, as noticed by Venkataramana

Rao, J., himself that it is not clear how much of this is good law after the Full Bench decision i.e., Vasudevan Nambudri and Others Vs. Sankaran

Nambudri and Others, .

In our opinion, the doubt expressed by the learned author at page 92 is well founded, and for reasons already stated by us Thenju v. Chimmu

I.L.R.(1884)Mad. 413, cannot be accepted and acted upon as correct law in view of the Full Bench decision. The analogy of cases of minors

relied on by the learned author in support of his view expressed at page 98 of the book is, in our judgment, misconceived, for as observed by the

Privy Council in Venkataseshayya v. Kotiswara Rao (1937) 1 M.L.J. 113 : L.R. 64 IndAp 17 : ILR 1937 Mad. 263 , the protection of minors

against the negligent actings of their guardians is a special class of case which cannot be extended in disregard of the provisions of Section 44,

Indian Evidence Act and Explanation VI to Section 11 of the Civil Procedure Code. Such analogy was relied upon by counsel but repelled by

Court in C.K.S. Krishnamurthi and Another Vs. Chidambaram Chettiar and Others, in which it was held that where a Hindu father sues as the

manager of a joint family, the junior members of the family are bound by the decree in the suit, and that the principle that a minor can sue to set

aside a decree passed against him owing to gross negligence on the part of his guardian recognised by N.P.L. Egappa Chettiar Vs. Em.S.V.L.

Ramanathan Chettiar and Others, , on the ground of stare decisis only applies to a case which concerns property held by the minor in his own right

and in which a decree is passed against the minor and cannot be extended so as to cover the case of a decree against a father as manager of the

joint family in respect of a family property in which the minor is interested as a coparcener. Although there is not such discussion of principle in it,

the ruling in C.K.S. Krishnamurthi and Another Vs. Chidambaram Chettiar and Others, is binding upon us, and even if it were not, we would still

agree with that decision as well warranted by principle, as we have expounded it in this judgment. It only remains for us to add, in conclusion of

our discussion of the case-law relevant to the point in controversy in this appeal, that in the case reported in Abbakka Shedthi and Another Vs.

Palli Vittal Hegda and Others, , which we consider to have been rightly decided, Chandrasekhara Aiyar, J, sitting singly, held that the principle that

a decree passed against the manager of a joint family cannot be set aside on the ground of negligence of gross negligence, as it can be set aside in

the case of a suit brought on behalf of a minor in respect of his separate property, applies to the case of a manager of an Aliyasanthana family. In

so holding, the learned Judge points out that where negligence is the complaint, there is no distinction between a case where the manager remains

ex parte and a case where the manager appears but does not put forward a good available defence. In the words of the learned Judge.

Where the manager is ex parte, notwithstanding that fact, the decree would still be one against the family and if what is alleged is only negligence or

gross negligence, the decree is unassailable by the junior members of the family whatever form the negligence may have taken, so long as it does

not amount to fraud or collusion.

We have no hesitation in endorsing this view of the learned Judge as sound in principle and consonant to authority.

We have examined the case in Durgamma v. Kechamayya (1924) 48 M.L.J. 351, relied upon by the Court below in the present case in

paragraph 42 of its judgment. In that decision of a single Judge, Ramesam, J., there is no doubt an observation to be found at page 352 suggesting

that the failure of the manager of the family to raise an obvious plea in answer to the former action is conduct showing gross negligence equivalent

to fraud and collusion. We are not, with all respect to the learned Judge, able to agree that such failure is necessarily tantamount to gross

negligence or that gross negligence is necessarily equivalent to fraud and collusion. We cannot agree with the former part of the proposition,

because there is no knowing in many a case what is an obvious plea and what is not. It does not seem to us that the latter part of the proposition is

correct either, for, fraud or collusion necessarily partakes of mala fides, whereas, even gross negligence may well be bona fide. Nor does the case

in Yusuf Sahib v. Durgi (1907) 17 M.L.J, 260 : I.L.R.30 Mad referred to by the learned Judge as an example of conduct showing gross

negligence equivalent to fraud and collusion support, when closely looked into, the supposition made by the learned Judge. The judgment of the

learned Subordinate Judge in the present case does not contain sufficient to show necessarily that fraud or collusion is, to use the words of Lord

Thankerton in his judgment in Venkataseshayya v. Kotiswara Rao (1937) 1 M.L.J. 113 : ILR 1937 Mad. 129 , the proper inference from the

facts. Nor is the theory invoked by the learned Subordinate Judge that a breach of duty on the part of a karnavan amounts to a fraud on his power

a live doctrine which we can seriously take notice of in view of the whole catena of decisions of this Court since Vasudevan Nambudri and Others

Vs. Sankaran Nambudri and Others, which all speak in one voice with the solitary exception of Narayani and Others Vs. P. Sankunni Mannadiar

and Others, .

In these circumstances the appeal is allowed and the suit dismissed with costs of the appellant here and in the Court below.