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

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 decision of the learned Subordinate Judge is contained in

three short paragraphs of his long judgment paras, 37, 11 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 defendant 1. Defendant 1 was entitled to acquire possession of Schedule B properties to which she had

no title. She was enabled to acquire possession of the properties in Schedule A 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 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 defendant 1 it has been contended that it is nowhere alleged in the plaint, that 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 on 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 Aliyasanthaua Law by P. R. Sundara Ayyar at p. 90 it is stated as follows: ''In cases 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 plea

(sic) 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 bead 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. 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 and Others Vs. Kechammayya and Others, gross

negligence was held to amount to fraud.

The above argument on behalf of defendant 1 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 statement 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 karta 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 karta 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, Civil P. C., 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 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 [1] of 1891 provides in and by

Section 3 Clause 11 thereof that in this Act (Madras General Clauses Act I [1] of 1891) and in every Madras Act made after the commencement

of this Act (Madras General Clauses Act I [1] 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 oases generally the definition in Section 3, Clause 20, General Clauses Act X [10] of 1897 which

provides that,

In this Act (Indian General Clauses Act X [10] of 1897) and in all Central Acts and Regulations, made after the commencement of this Act

(Indian General Clauses Act 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 Expln. VI to Section 11, Civil P. C., 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 AIR 1937 1 (Privy Council)

the provisions of Section 11, Civil P. C., 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, 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 Egappa v. Ramanatha, I. L. R. (1942) Mad. 526 : A. I. R. 1942 Mad. 384 apparently because the protection of minors against

the negligent actings of their guardians is, as observed by the self-same Privy Council decision in AIR 1937 1 (Privy Council) 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, (1843) 11 M. & W. 113: 63 R. R. 528. Even if there is a distinction between negligence and

gross negligence it is, at any rate, exclusive as Lord Thankerton describes it in delivering the judgment of the Privy Council in the case reported in

AIR 1937 1 (Privy Council) 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, 7 Mad 413 in the terms that,

when breach or neglect of fluty on the part of a 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, 10 Mad. 322 (of whom one

by the way, Muthuawami 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, Muthuawami 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, 7 Mad. 413 and Moidin Kutti v. Krishnan, 10 Mad. 322 stands overruled by the decision of a Full Bench of four

Judges reported in Vasudevan v. Sankaran, 20 Mad. 129 : 7 M. L. J. 102 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 Marumabattayam 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 Aiyar

JJ.--one at the bottom of p. 139 of the report and the other at the botton of p. 142, referred in terms to Expl. V to Section 13, Civil P. C., then in

force, which corresponds to Expl. VI to Section 11 of the present Code. Further, Collins C. J. remarks at the bottom of p. 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 p. 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 p. 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. Gallatly,

(1876) 3 Ch.D. 610 in 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 v. Sankaran, 20 Mad. 129 : 7 M. L. J. 102 we have no doubt left in our minds but

that the rulings in Thengu v. Chimmu, 7 Mad. 413 and Moidin Kutti v. Krishnan, 10 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, Civil P. C., then in force in the case in Madhavayya v.

Keralavarma, 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, 7 Mad. 413 and Moidin Kutti v. Krishnan, 10 Mad. 322 had

not been referred to at all or at any rate much in (sic) and could not therefore be treated as overruled by Vasudevan v. Sankaran, 20 Mad. 129 : 7

M.L.J. 102. 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 p. 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, Civil P. C., and that the same reasoning

would apply to the case of junior members of a Marumakatayam or Aliyasantana family. Referring to Thenju v. Chimmu, 7 Mad. 413 Mr. Sundara

Aiyar made the observation earlier in his book at p. 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 v. Sankaran, 20 Mad. 129: 7 M. L. J. 102. In our opinion, the doubt expressed by the learned

author at p. 92 is well founded, and for reasons already stated by us Thenju v. Chimmu, 7 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

p. 98 of the book is, in our judgment, misconceived, for as observed by the Privy Council in AIR 1937 1 (Privy Council) 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,

Evidence Act, and Explanation VI to Section 11, Civil P. C. 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 Egappa v. Ramanathan, I. L. R. (1942) Mad. 526 : A. I. R. 1942

Mad. 384 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 or 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 Aliyasantana, family. In so holding, the

learned Judge points out that where negligence is the complaint, there 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 and Others Vs. Kechammayya and Others, relied upon by the Court below in the present case in

para. 42 of its judgment. In that decision of a single Judge, Ramesam J., there is no doubt an observation to be found at p. 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, 30 Mad. 447: 17 M. L. J. 260 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 AIR

1937 1 (Privy Council) 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 v. Sankaran, 20 Mad. 129 : 7 M. L. J. 102 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.