Rameshwar Singh Bahadur, C.C.I.E., K.B.E. of Darbhnga vs Kumar Ganganand Singh and Others

Mullick, J.—Raja Sri Nandan Singh of Srinagar had three sons, Nitya Nand, Kamla Nand and Kalika Nand. Kamla Nand died in 1910 leaving him surviving th ree sons, Ganga Nand, plaintiff No. 1 Ambica Nand (now deceased) and Achyuta Nand, plaintiff No. 2. Kalika Nand is still alive and has three sons, Abhaya Nand, plaintiff No. 3 Bijoy Nand plaintiff No. 4, Ghana Nand, plaintiff No. 5. Nitya Nand died before 1896 in which year Kamla Nand attained majority and began to manage the, two-thirds share in the ancestral family estate of himself and Kalika Nand. Thereafter, on the 7th May 1900, Kamla Nand and Kalika Nand executed a mortgage for Rs. 3,50,000 in favour of the Maharaja of Darbhanga, the defendant 1st party. In 1916 the Maharaja instituted Suit No. 172 of that year in the Court of the Subordinate Judge of Darbhanga against Kalika Nand and his three sons and against Ganga Nand and Achyuta Nand for the enforcement of his mortgage and on the 14th January 1919 obtained a preliminary decree on compromise for a sum of Rs. 7,42,181-2-3. On the 22nd March 1921 this decree was made final, but as soon as the mortgagee applied for execution by the sale of the mortgaged properties some of which are situated in the District of Bhagalpur Ganga Nand Singh. Achyuta Nand Singh, Abhaya Nand Singh, Bijoya Nand Singh and Ghana Nand Singh instituted Suit No. 741 of 1921 in the Court of the Subordinate Judge of Bhagalpur for a declaration that the compromise decree in Suit No. 172 of 1916 was fraudulent and void on the ground that the plaintiff No. 1 Ganga Nand was a minor and that he was falsely alleged in the suit to have attained majority, to have signed a written statement and to have engaged a Pleader to appear on his behalf. It is also alleged by the plaintiffs that the Pleader appointed for the plaintiff Achyuta Nand was in collusion with defendant No. 1, the Maharaja, and defendant No. 2 Kalika Nand Singh and had assented to the compromise in order to defraud the minor. In addition to the declaratory relief a permanent injunction restraining the Maharaja from executing his decree was also prayed for. On the 26th April 1922 the Maharaja filed a written statement denying the material allegation as to fraud and collusion and also questioning the jurisdiction of the Subordinate Judge of Bhagalpur to issue an injunction against him, a defendant who was resident in the District of Darbhanga and over whom he had no territorial jurisdiction. An application for ad interim injunction restraining the Maharaja from executing his decree by the sale of the properties was also made and allowed by the Subordinate Judge on the 29th April 1922.

The present appeal is preferred against that order.

The first question is, whether there is a reasonable prospect that the plaintiffs will be able to prove the allegation that Ganga Nand Singh was, at the time of the compromise, a minor. Now it appears that after Kamla Nand''s death Kalika Nand on the 9th July 1910 obtained a certificate of guardianship under Act VIII of 1890 from the District Judge of Purnea of the persons of Ganga Nand and Achyuta Nand, stating the dates of birth of the former to be 24th September 1898 and of the latter to be 31st March 1907. According to the dates given in this petition Ganga Nand would attain majority on the 23rd Septem ber 1919 and he was, therefore, 8� months below age on the date of the compromise decree. On the other hand, there are certain facts which indicate that he was not then a minor, and which, in my opinion, are of prime importance when a question of discretion is involved. When Suit No. 172 of 1916 was first instituted the plaintiff Maharaja sued Ganga Nand and Achyuta Nand as being under the guardianship of their uncle Kalika Nand, but on the 18th July 1916, finding that the interests of Kalika Nand, who was defendant No. 2 in the suit, were adverse to those of his sons, the Court appointed a Pleader of the Court, named Babu Amrit Lal Mazumdar, as their guardian ad litem. As regards the other minor defendants, namely, Ganga Nand and Achyuta Nand, their mother Rani Satrama on the 4th August 1916 applied to be made guardian ad litem and on the 16th August that prayer was granted. On the 11th December 1916 Rani Satrama filed a petition tating that Ganga Nand had attained majority and suggesting that he should be made guardian ad litem for Achyuta Nand. The Court thereupon passed the following order: "It is ordered that defendant No. 5 be allowed to defend his case himself as major and to file written statement; that the prayer for appointing defendant No. 5 as guardian of his brother defendant No. 6 be disallowed and if Rani Satrama declines to act as guardian of defendant No. 6 steps be taken for the appointment of another guardian. On the 18th December the Court, finding that Rani Satrama was unwilling to act appointed Babu Amrit Lal Mazumdar as the guardian ad litem. On the 5th April 1917, it being found that the interests of defendant No. 6 Achyuta Nand were adverse to those of the minor sons of Kalika Nand for whom Babu Amrit Lal was also guardian the Court appointed Babu Khetrapada Basu to be guardian of the minor Achyuta.

Now, a signature purporting to be that of Ganga Nand appears on the written statement which Ganga Nand filed after he was entered on the record as a major. Apparently, there was great delay in effecting service of summons upon him as he was engaged in his studies in Calcutta; but on the 11th July 1917 we find the following order recorded by the Subordinate Judge: Defendant Kumar Ganga Nand Singh files vakalatnama and applies for time to file written statement. Guardian ad litem also applies for time to file written statement. Written statement on behalf of guardian ad litem of Kumar Achyuta Nand Singh put in. Adjourned to 24th July 1917. On the 24th July 1917 there is an order recording that a written statement on behalf of Ganga Nand Singh has been filed and after that date Ganga Nand Singh appears to have been represented throughout the proceedings by his Vakil and to have been thoroughly cognizant of the proceedings of the Court, It is alleged that no application was ever made by his mother declaring him to have attained majority, that the signature on the written statement is a forgery, that the Pleader who agreed to the compromise decree on his behalf and signed the compromise petition was never instructed by him, and that the whole scheme which ended in the final decree was a fraud from beginning to end contrived by the Maharaja in collusion with Kalika Nand and the guardians ad litem If Ganga Nand can prove this in suit No. 741 of 1921 he will no doubt be entitled to get a decree, but it is impossible to say in the face of the evidence at present available that there is a prima facie case in his favour. It is certainly true that in the petition by which Kalika applied for the guardianship of Ganga Nand, Ganga Nand''s date of birth is put down as 24th September 1898, but against this we have the statement of his mother that he was of age on the 11th December 1916 and his own conduct in the subsequent proceedings. It will be a matter of evidence whether Kalika''s statement is to be preferred to the statement of his own mother and in the view of the publicity given to Suit No. 172 of 1916 by the appointment of a Receiver and the litigation connected therewith, and of the fact that defendant Achyuta Nand and the minor sons of Kalika were represented in Suit No. 172 of 1916 by legal practitioners of apparently established reputation, it is difficult to imagine that the fact that the Ganga Nand was a minor and incapable of making his defence could have remained concealed. Further, whatever the age of Ganga Nand may have been at the time of the preliminary decree he certainly, upon his own showing, was of age at the time of the final decree and the omission on his part to attack the preliminary decree is a circumstance which must be taken into account against him.

This disposes of the main point in the case and although the result of the sale of the mortgaged properties may be that the plaintiffs will be unable to recover those properties in spite of their success in Suit No. 741, I do not think the circumstances were such as to justify the Subordinate Judge in issuing a temperory injunction which had the effect of staying the sale. The delay on the part of the Maharaja to bring his mortgage suit in the first instance is not, in my opinion, an argument for delaying the execution.

On behalf of the respondents a point has been taken to the effect that the Court had no jurisdiction to issue any injunction upon a defendant residing outside its territorial limits. In my opinion the contention is not well founded. Although the Maharaja denies the jurisdiction of the Court, it has been established that he has property in the Bhagalpur District against which the Court could proceed in the event of any contempt of the Court''s authority. It is clear that the Court has means for enforcing any prohibitory order which it may think fit and proper to issue.

The result, therefore, is that the appeal must succeed and is decreed with costs.

Bucknill, J.

I agree.