Sawan Ram vs Nachittar Singh

Teja Singh, C.J.—This is a second appeal from the appellate decree of the District Judge. Nabha. In order to be able to understand the point raised by Counsel it is necessary to refer briefly to facts.

Jaimal Singh and Ralla Singh were two brothers. Jaimal Singh owned certain land which was under mortgage. The equity of redemption was attached and sold to execution of a money decree against Jaimal Singh. On this Ralla Singh, brought a suit for declaration that the Court sale could not affect his reversionary interests. His allegations, inter alia, were that the land was ancestral and the sale was without necessity. Ralla died during the pendency of the case and his minor son Nachittar Singh was brought on record as his legal representative. Kahan Singh became the next friend of Nachittar Singh. Kahan Singh also died while the suit was still pending and his place was taken by Gurdev Singh. The trial Sub-Judge held, that the land had not been proved to be ancestral qua the plaintiff & so dismissed the suit. An appeal was preferred against the decree of the trial Sub-Judge by the minor''s mother on behalf of the minor & as his next friend. The District Judge set aside the judgment and the decree of the trial Sub-Judge and being of the opinion that the land was ancestral remanded the case for decision on the remaining issues. Sawan Ram defendant in whose favour the Court sale had been made is the appellant before me.

The first point urged by the appellant''s learned Counsel is that the appeal was not property presented. Counsel''s position is that Gurdev Singh, who had been appointed next friend of the minor could only prefer the appeal and the mother of the minor could not take place unless Gurdev Singh had been removed as he had retired. He refers in this connection to the provisions of Order 32, Rules 9 and 10, C.P. Code and AIR 1931 635 (Lahore) in which it was held that where the next friend of the minor plaintiff has once been appointed such appointment continues for the whole of the his or until it is revoked by the Court or until the next friend has been removed under Order 32, Rule 9, and the next friend is the only person who can prefer an appeal on behalf of the minor. This view, with all respect, is correct and Gurdev Singh alone had the right to prefer the appeal on behalf of the minor. It appears that Gurdev Singh did not move into the matter and the mother of the minor considered it necessary to lodge the appeal herself as the minor''s next friend, because she believed that Gurdev Singh had neglected his duty. But if this was the case the proper course for her was to make an application to the appellate Court stating all the facts and seeking the permission of the Court preferring the appeal. It is no doubt correct that the position of the guardian-ad-litem., of a minor is quite different from that of a next friend and in the case of the guardian express order by the Court for his appointment as such, is necessary, while a next friend can himself come into Court on behalf of the minor. This means that while the guardian-ad-litem is appointed by the Court the next friend appoints himself and unless it is shown that he has any interest adverse to the minor his appointment cannot be objected to. The fact, however, remained that when the next friend is once appointed, even though by himself, he continues to be the next friend throughout the lis and no one else can intervene on behalf of the minor until he applies to the Court to have the next friend removed. Accordingly I hold that the appeal when it was instituted by Nachittar Singh''s mother was without authority and was not properly presented.

The record shows that on the day the arguments were heard an objection was taken to the competency of the mother to prefer the appeal as Nachittar Singh''s next friend. There and then the Counsel for the next friend applied to the Court for removal of Gurdev Singh and the appointment in his place of the mother of the minor as his next friend. This application was accepted by the District Judge. In his order appointing the minor''s mother as his guardian in place of Gurdev Singh the District Judge also observed that the appointment would relate back to the date on which the appeal was originally instituted and also added that apart from his above observation he condoned the delay in the presentation of the appeal. It appears that his intention was that even if the appointment of the mother as the minor''s guardian could not have any retrospective effect and it be held that the appeal should be taken to have been instituted on the day the order appointing the mother as the next friend was made, he thought that it was a good care for extension of time u/s 5 of the Limitation Act and the did extend the time. As at present advised I am not prepared to hold that the District Judge had any power to make an order which could have a retrospective effect, because no provision exists on this point in the Civil Procedure Code. There are certain matters such as the extension of time given for doing a particular purpose and permission to put in deficient Court-fees, in which when the Court accepts the prayer, that is to say, grants the extension of time and allows deficiency of Court-fees to be made up its order can take effect from the original date but these are matters Which are expressly provided by the Civil Procedure Code. I have not been referred to any such provision regarding the appointment of a guardian-ad-litem or next friend of the minor and I am inclined to think that the appointment can take effect only on the date on which it is made. Consequently, the appeal in the District Judge''s Court could be taken to have been instituted only on the day the minor''s mother was appointed his next friend.

The next point urged by the appellant''s Counsel is that time for preferring the appeal had expired long before the minor''s mother was appointed guardian and as is held by me, the appeal could be regarded to have been instituted only on that day, it was barred by time. This would no doubt be correct position but for the order of the District Judge, extending the time u/s 5 of the Indian Limitation Act, mention of which I have made above. It cannot be denied that the District judge had ample power to extend the time and I do not think that this was a case in which the exercise of discretion in the appellant''s favour can be regarded as improper.

As regards the merits, the decision of the appeal depends upon the question whether the land in suit was proved to be ancestral. The copy of the Jamabandi of 1984-85 produced by the plaintiff goes to show that the land in suit stood in the names of Jaimal and Ralla Singh sons of Kalu who were described as joint owners in equal shares. This land when traced to the settlement of 1964-65 was found to be the property and in the possession of Mangal, son of Sukhu. No documentary evidence had been adduced on behalf of the plaintiff to prove how Kalu was related to Mangal One of his witnesses, viz., Partap Singh deposed that Mangal was Kalu''s son and that he died a year after Kalu, whose death took place 25 or 26 years ago. The trial Sub-Judge paid no attention to Partap Singh''s statement & he thought that relationship between Mangal and Kalu had not been proved and it could not be held that the land of which Jaimal was the owner was ancestral qua "Ralla. The matter went up in appeal to the District Judge, an application was made by the appellant''s Counsel for admission of a copy of the pedigree-table of the settlement of 1934-85 under Order 41, Rule 27, C.P. Code. The learned District Judge accepted the application and allowed the copy to be brought on record. It is argued before me by the appellant''s Counsel that the scope of Order 41, Rule 27 is limited and the District Judge had no power to admit additional evidence at the instance of one of the parties and for his benefit. I agree that there is consensus of opinion on the point that additional evidence can be allowed by an appellate Court only when the Court requires it in order to be able to decide the case and not because a party requires it. Reference in this connection may be made, inter alia, to Kalika Dutt Mandar Vs. Tulsi Mandar, and the decision of a Division Bench of the Lahore High Court of winch I was a member in AIR 1946 Lahore 444 The leading Privy Council case on the point is ''Parsotim Thakur V. Lal Mohar'', 58 Ind App 254, wherein their Lordships explained the rule laid down in a previous case, ''Kessowji v. G.I.P., Rly.'', 31 Bom 381, and observed that the rule for the admission of additional evidence in appeal is not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak points in his case and to fill up omissions in the Court of appeal but it is only when the appellate Court requires additional evidence (that is to say, finds it needful) that it can be admitted. Clause (a) of Sub-rule (1) of Rule 27 comes into operation when the Court from whose decree I he appeal is preferred has refused to admit evidence which ought to have been admitted and if a party who wishes to adduce additional evidence satisfies the Court that the same was tendered in the trial Court but it was refused and further that the evidence is relevant and should have been admitted, the appellate Court will exercise its power of admitting that evidence. In all other cases additional evidence could be admitted only under Clause (b) which definitely lays down that this can be done if the appellate Court requires the evidence to enable it to pronounce judgment. The concluding words of the clause ("for any other substantial cause") might cover a case of the kind in which the evidence was not in existence during the time the cause remained pending in the trial Court. It may, however, be pointed out that there is nothing to debar a party from approaching the appellate Court to exercise the power of admitting additional evidence. In the present case though it was the Counsel for the plaintiff-appellant, who moved the District Judge for admission of additional evidence taking into consideration the circumstances of the case I am of opinion that the admission of the copy of the pedigree-table became necessary because Partap Singh''s statement regarding the relationship between Kalu and Mangal had created a confusion in as much as it contradicted the settlement record of 1964-65 and it became necessary for the District Judge to admit the copy of the pedigree-table in order to resolve that confusion and to decide the appeal. Then according to the record of rights of 1984-85 Jaimal and Ralla were the sons of Kalu but Partap Singh''s statement was that Mangal was Kalu''s son. It was alleged before the District Judge that Partap''s statement had not been correctly recorded and what he had said in fact was that Kalu was Mangal''s son and there was a mistake in recording the statement. Unfortunately no one paid any attention to it at the time Partap Singh was in the witness-box and even the defendant''s Counsel did not cross-examine him on the question of relationship between Kalu and Mangal. As I have mentioned above, the whole land in possession of Jaimal and Ralla In 1984-85 was in possession of Mangal in 1964-65. Tills further emphasised the desirability of admitting the copy or the pedigree table. Consequently I hold that the copy to question was properly admitted and since the copy when read together with the revenue records shows that the suit land was occupied by Mangal, the grandfather of Jaimal and Ralla, it was ancestral qua Ralla in the hands of Jaimal. The explanation why Kalu''s name did not appear in the Settlement papers is to be found in Partap Singh''s statement from which it is proved that Kalu predeceased Mangal.

These being the only points urged before me, the appeal fails and is dismissed, but the parties are left to bear their own costs in this Court and the Court of the District Judge. Other costs will abide the event. The record shall be sent back to the trial Court forthwith and the parties shall appear there on 29th November 1950.