Purabi Goswami (Sharma) vs Barnali Goswami And Ors

Heard Mr. S. Load, learned counsel appearing for the appellant as well as Mr. B Saha and Mr. S. Bhattacharjee, learned counsel appearing for the respondents.

[2] This is an appeal under 100 of CPC from the judgment 29.01.2015 delivered in T.A. No. 01 of 2013 by the District Judge, West Tripura, Agartala by reversing the judgment dated 10.10.2012 delivered T.S. 53 of 2007 by the Civil Judge (Sr. Division), West Tripura, Agartala, Court No.1. By this judgment 10.10.2012 the Civil Judge (Sr. Division) wrote the opinion for dismissal of the suit and accordingly the suit was dismissed. At the time of admitting this appeal, the following substantial questions of law were framed by this court by the order dated 06.07.2015.

(i) Whether after dismissal of a suit under Order IX Rule 3 of the CPC, can a fresh suit on same and identical relief is maintainable, if the plaintiff was minor at the time of first suit, and there is no allegation against the next friend about fraud?

(ii) Whether only one co-sharer can file a suit for recovery of possession against other co-sharer without praying for partition of the property?

The appellant was given further liberty to raise any other substantial question of law at the time of hearing. It is to be noted that no such endeavour was made rather Mr. S. Lodh, learned counsel appearing for the appellant has stated that the main ground in this appeal is whether principle of res judicata would operate and alternatively whether the suit is barred by limitation or not.

[3] At the outset, the controversy that led to filing of the suit may briefly be introduced. In the court of the Civil Judge (Sr. Div.), West Tripura. The suit being 53 of 2007 was instituted for declaration of title and consequential of reliefs by the plaintiff- respondent. There is no dispute that the suit land originally belonged to one Monoj Kr. Sharma who died on 24.02.1993 leaving behind his wife, five sons and three daughters. Thus, the property was inherited by those legal heirs in equal share [1/4th share each]. One of the daughters of Monoj Kr. Sharma namely Namita Sharma (Goswami) died on 20.06.1997 leaving behind her husband, Krishnapada Goswami, two major daughters namely Emily Goswami and Shuili Sharma and two minor daughters namely Barnali Goswami and Anamika Goswami. The plaintiff is one of those minor daughters who attained majority on 20.06.2007. Sisir Sharma the eldest son of Monoj Kumar Sharma, since deceased, and his wife Purabi Goswami are the principal defendants in the suit. Prabhabati Sharma, widow of Monoj Kr. Sharma and four other sons and two daughters are the proforma defendants No.3 to 9. Krishnapada Goswami and his three daughters qua Namita Goswami (Sharma) are the defendants No. 10 (a) to 10 (d). The other daughter of Namita Goswami (Shama) as stated is the plaintiff in the suit. After death of Monoj Kr. Sharma his wife, four sons, three daughters executed a general power of attorney on 10.03.1993 in favour of the eldest son Sisir Sharma considering the urgency of managing the suit property at Agartala and Phulkumari in Udaipur. There is no dispute about these facts and these are admitted by the parties. The plaintiff filed the suit alleging that within a few days, after he got the power of attorney Sisir Sharma started acting adverse to the interest of the co-sharers of the property. As a result, on 10.03.1993 Tapash Sharma one of the sons of Monoj Kumar Sharma revoked the Power of Attorney. Thereafter, Prabhabati Sharma, Ashis Sharma, Pradip Kr. Sharma and Sudip Sharma revoked the Power of Attorney on 06.09.1998. Another co-sharer Kabita Sharma revoked the power of attorney on 07.09.1993. Thus, the power of attorney executed by them nominating Sisir Sharma as their attorney 10.03.1993 ceased to have any effect. The revocation deeds were executed on 30.04.1998, 08.06.1998 and 07.06.1999. For death of Namita Gowami (Shrama) on 20.06.1997 the power of attorney became ineffective from that day, as far as her delegation is concerned. Revocation of the power of attorney was notified in the newspapers. On attaining majority, the plaintiff visited the suit land on 15.07.2007 as she was in need of a residential accommodation at Agartala following her admission in a College at Agartala. She found that the defendant No.1 was in possession of the suit land. When she confronted the defendant No.1 (the wife of Sisir Sharma) she stated that she had purchased the suit land on paying the consideration money to the true owner. The plaintiff got the impression that the defendant No.2 (Sisir Sharma) illegally and fraudulently managed to transfer the land to his wife [the defendant No.1] even though, as it has been assured, he had no authority to represent the other co-sharer. The plaintiff collected the certified copy and found that two sale deeds were executed and those are sale deeds are registered under No.1-8071 dated 14.09.2000 and 1-8913 dated 06.10.2001. According to the plaintiff all these registered deeds are void. The plaintiff prayed for declaration of her title over the suit land, cancellation of the sale deeds and recovery of possession. The questioned deeds have been described under the Schedule A of the plaint. The defendants No.1 and 2 contested the suit filing their written statement jointly and denying any knowledge of revocation of the power of attorney by which the defendant No.2 was nominated as the attorney, as stated. There is no dispute that the proforma defendants No. 4 to 9 instituted a title suit earlier, being TS 23 of 2003 for cancellation of those sale deeds as executed by the defendant No.2 in favour of the defendant No.1. in respect of the suit land. The plaintiff and the proforma defendants No. 10 (a) to 10 (d) were impleaded in that suit as the defendants No.8 to 12. Thus the plaintiff and other co- defendants of the former suit had the specific knowledge about the sale deeds in question, by which Sisir Sharma the defendant No.2 executed the sale deeds in favour of his wife Purabi Goswami (Sharma) on 14.09.2000 and 06.10.2001. Even there is no dispute that the order of transposition of the plaintiff and the defendant No. 10 (a) to 10 (d) of the former suit had reached to its finality, as nobody had challenged the findings. The said suit being TS 23 of 2003 was transferred to the court of the civil Judge Junior Division Court No.1, Agartala. The suit was renumbered as TS No.107 of 2004 and ultimately, the said suit was dismissed for non- prosecution on 27.09.2005. Thus, the doctrine of res judicata has been sought to be pressed in service by the defendants No. 1 and

In the para No.11 of the plaint, the plaintiff has stated that the cause of action for the suit arose on 13.1.2003 and 20.01.2003 when the plaintiff came to know that the defendants No. 1 and 2 in collusion had transferred the suit land by executing those disputed sale deeds. In view of the specific admission by the plaintiff, the Civil Judge in due course of trial had dismissed the suit for being hit by doctrine of res judicata and the law of limitation. The plaintiff filed an appeal in the court of the District Judge, West Tripura, Agartala under section 96 of the CPC from the said judgment dated 10.10.2012 delivered in TS 53 of 2007. The said appeal has been dismissed by the impugned judgment dated 29.01.2015. In the first appeal, the plaintiff-respondent has raised the issue that her father was never as the guardian ad litem for her being a minor when the suit TS 107 of 2004 was instituted. The First Appellate Court has, in the course of disposal, observed as under:

"8. The main point to be decided in the appeal is whether the plaintiff appellant, a minor plaintiff in the Title Suit No.107 of 2004 was properly represented by her father as natural guardian and whether he acted to her benefit and whether her interest was duly protected. Another aspect is that admittedly, property of the minor was sold by the Attorney constituted by the natural guardian without obtaining permission of the Court as required by Section 8(2) of the Hindu Minority and Guardianship Act, 1956. Section 8 (3) says, "Any disposal of immovable properly by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him." Admittedly, minor on attaining majority has filed the suit claiming recovery of the property saying that the disposal was void. The question therefore, is, even if minor was represented in the earlier suit, whether or not subsequent suit for recovery of the property by her would be maintainable."

[4] Mr. S. Lodh learned counsel appearing for the appellant has submitted that there is no allegation against the natural guardian, the respondent No.9 (a), namely, Krishnapada Goswami that he had acted against the interest of the minor or that he exercised fraud while acting as the next friend to the plaintiff- respondent. According to him, the original defendant No.10 namely, Sisir Sharma caused transfer of the suit land illegally and fraudulently. He had no competence to cause such transfer and as such, the said transfer is void, ab initio and illegal. There is no allegation against the respondent No. 9, her father who represented her for the previous suit. As such, the plaintiff- respondent is bound by the outcome of the previous suit being TS No.107 of 2004 (previously TS 23 of 2003). If the representation is not questioned by the minor on attaining his/her majority, he or she cannot challenge the outcome of the former suit. In this respect, Mr. S. Lodh learned counsel appearing for the appellant, having referred Section 24 of the Indian Evidence Act has contended that, to demonstrate fraud or collusion in obtaining the judgment or lack of competence of the court, it has to be proved that such judgment which is relevant under Sections 40, 41 or 42 is proved by the adverse party to have obtained by fraud or collusion.

[5] Mr. S. Lodh, learned counsel appearing for the appellant has submitted that even such allegation was not made by the plaintiff-respondent in respect of the order of dismissal dated 27.09.2009 which had been passed under Order 9 Rule 3 of the CPC for non-appearance of the plaintiff as well as the respondents. The remedy against the order of dismissal is to bring a fresh suit by the plaintiff or the plaintiff might apply for an order to set aside the order of dismissal. For that he had to satisfy the court that there was sufficient cause for his non- appearance. The plaintiff- respondent can neither bring a fresh suit nor can she apply for setting aside the dismissal by placing the sufficient case under Order 9 Rule 4 of the CPC. Mr S. Lodh, learned counsel appearing for the appellant, therefore submits that there cannot be any other alternative for the plaintiff-respondent, as she has not questioned the representation by her natural guardian after the order of transposition, which takes away substantively the effect of any irregularity which might be located for non-compliance of provisions of Order 32 Rule 3 of the CPC which provides that the guardian for the suit to be appointed by the court for minor defendant. For appointment of the guardian for the suit by the court, for the minor defendant, the procedure has been laid down in Order 32 Rule 3 of the CPC. Without raising any objection to that irregularity, at the instance of the respondent No. 9 herein the transposition was caused. Thus, the plaintiff-respondent was impleaded as the plaintiff in the former suit. No ground, as Mr. S. Lodh, learned counsel appearing for the appellant points out to this court, was made out in respect of prejudice caused to her interest. Rule 3(a) of Order 32 of the CPC clearly provides that no decree against a minor can be set aside merely on the ground that the next friend or the guardian in the suit had an interest adverse to the interest of the minor and that by the reason of such adverse interest of the next friend or the guardian in the suit, serious prejudice has been caused to the interest of the minor. That can be a ground for setting aside the decree. According to Mr. S. Lodh, learned counsel appearing for the appellant that the entire suit is misconceived and untenable in law. According to him, the first appellate court has completely erred while negotiating the relevant fact. The trial court and first appellate court have considered some issues which did not arise from the suit, filed by the plaintiff-respondent. Mr. Lodh, learned counsel appearing for the appellant referred to a series of decision in support of his contention.

[6] In Talluri Venkata Seshayya and Ors. Vs. Thadikonda Kotiswara Rao and Ors. reported in AIR 1937 PC 1 the Privy Council while dwelling upon the ambit and extent of Section 44 of the Evidence Act had occasion to observed as under:

"7...... In both Courts the principles relating to negligent conduct of a former litigation by a guardian in the name of a minor were accepted as applicable to the case of parties litigating on behalf of a public interest, as in the present case. The cases illustrative of this principle, which are referred to in the judgments, are Lalla Sheo Churn Lal v. Ramnandan Dobey (1894) I.L.R. 22 Cal. 8. Punnayyah v. Virmna (1921) I.L.R. 45 Mad. 425. Karri Bapanna v. Yerramma . and Anmtda Rao v. Appa Rao (1924) 47 M.L.J. 700. Their Lordships are not concerned to discuss the validity of these decisions, or the elusive distinction between negligence and gross negligence, as they are satisfied that the principle involved in these cases is not applicable to such cases as the present one. The protection of minors against the negligent actings of their guardians is a special one, and in these cases the plaintiff in the second suit was also the plaintiff in the former suit, although in the earlier suit he or she had sued through a guardian. Their Lordships would only add that they are not prepared to agree with the view expressed in Karri Bapanna's case (supra) that the principle of Section 44 of the Indian Evidence Act can be extended to cases of gross negligence.

The provisions of Section 11 of the Civil Procedure Code 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. 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. Under Section 11, Expln, VI, of the Civil Procedure Code, the plaintiffs in the present suit are deemed to be claiming under the plaintiffs in the 1891 suit, and again the statute defines a condition as necessary to the applicability of the section, namely, that the plaintiffs of 1891 litigated bona fide. In the opinion of their Lordships, no case of fraud apart from collusion being suggested, the appellants are bound to establish either that the 1891 decrees were obtained by collusion between the parties, or that the litigation by the 1891 plaintiffs was not bona fide......"

[Emphasis added]

Another decision in Krishnadas Padmanabhrao Chandavarkar vs. Vithoba Annappa Shetti reported in AIR 1939 Bom 66 has been pressed where the Bombay High Court has observed as follows:

"4. The first case is that of Raghubar Dyal Sahu v. Bhikya Lal Misser (1885) I.L.R. 12 Call. 69, in which two Judges of the Calcutta High Court held that a minor could not set aside a decree in a substantive suit for that purpose on the ground merely of gross negligence on the part of his guardian ad litem.

In Lalla Sheo Churn Lal v. Ramnandan Dobey (1894) I.L.R. 22 Cal. 8, in which Raghubar Dyal Sahu v. Bhikya Lal Misser was not referred to, two other Judges of the Calcutta High Court took a contrary view, basing their opinion largely on the English case of In re Hoghton : Hoghton v. Fiddey (1874) L.R. 18 Eq. 573. The actual decision in Lalla Sheo Churn Lal v. Ramnandan Dobey was that a judgment obtained against a minor owing to the gross negligence of his next friend could not be relied on as res judicata, a decision which seems inconsistent with the decision of the Privy Council to be referred to hereafter. There does not appear to be any authoritative ruling of the Calcutta High Court reconciling these two conflicting views.

In the Madras High Court it was held by a division bench in Punnayyah v. Viranna (1921) I.L.R. 45 Mad. 425 that a minor could file a suit to set aside an ex parte decree against him on the ground of gross negligence on the part of his guardian ad litem. The Court disagreed with the views expressed in Raghubar Dyal Sahu v. Bhikya Lal Misser, and relied on the English case of In re Hoghton (supra.).

In the Lahore High Court there has been a conflict of opinion. In Imam Din v. Purn Chand (1919) I.L.R. 1 Lah. 27 it was held that negligence on the part of the guardian ad litem was not enough to entitle a minor to challenge the validity of a decree, and in Fazal Din v. Md. Shafi [1928] A.I.R. Lah. 674 the contrary view was taken.

In Patna also there have been conflicting decisions.

In the Allahabad High Court there was also a conflict of authority, but in a recent full bench caseSiraj Fatma v. Mahmud Ali (1932) I.L.R. 54 All. 646 F.B.,- the Court decided that gross negligence on the part of the guardian ad litem was sufficient to enable a minor to challenge a decree. The leading judgment in that case was given by Mr. Justice Sulaiman, as he then was, who entered upon an exhaustive review of all the cases. I think that his judgment was based mainly on the view that this form of action is allowed under English law. He says (p. 659): "That in England gross negligence [on the part] of the guardian is a good ground for the avoidance of a decree against a minor cannot be doubted," and he took the view that there was no reason why the English law should not be applied to India. Mr. Justice Sen agreed with Mr. Justice Sulaiman, but Mr. Justice Boys, in a dissenting judgment, considered that such an action would not lie by virtue of Section 2 and Section 44 of the Indian Evidence Act. That view cannot, I think, be supported. Section 44 of the Indian Evidence Act deals with defences open against a judgment in a prior suit relied on as res judicata ; but if it be part of the substantive law that a minor can challenge a decree on the ground of negligence by his guardian, it must necessarily be open to him to attack the judgment on that ground without reference to Section 44 of the Indian Evidence Act. The Indian Evidence Act does not; destroy substantive rights.

I now come to the Bombay cases. In Cursondas Natha v. Ladkavahu (1895) I.L.R. 19 Bom. 571 a minor alleged that there was error on the face of the decree because liberty was not reserved to him to challenge the decree after attaining his majority Mr. Justice Farran rejected that claim.

There is a dictum in the judgment based on Lalla Sheo Churn Lal v. Ramnandan Dobey to the effect that it is open to a minor to impeach a decree by a separate suit in cases where his guardian has been guilty of fraud or negligence, but that is no more than a dictum.

In Hanmantapa v. Jivubai (1900) I.L.R. 24 Bom. 547 : S.C. 2 Bom. L.R. 478 a division bench referred to the case of Lalla Sheo Churn Lal v. Ramnandan Dobey with approval, but as no negligence by the guardian was proved, it was not necessary to decide what would have been the effect of any such negligence.

Similar observations apply to the decision in Vishnu Narayn v. Dattu Vasudeo (1907) 9 Bom. L.R. 478.

In Sonubai v. Shivajirao (1920) I.L.R. 45 Bom. 648 : S.C. 223 Bom. L.R. 110 it was held by a division bench that the Court under its inherent jurisdiction could set aside an order dismissing an appeal by a minor for default. The judgment appealed from was challenged on the ground that the guardian ad litem had become insane, but the Court held that it was not necessary to consider the conduct of the guardian since a proper case for setting aside the order in default had been made out. The case, therefore, is not a decision upon the present question, though it is to be noted that both the Judges referred with approval to the case of Lalla Sheo Churn Lal v. Ramnandan Dobey (1894) I.L.R. 22 Cal. 8.

In Sureshchadra v. Bai Iswari (1937) 40 Bom. L.R. 127, which came before a division bench consisting of Mr. Justice Barlee and Mr. Justice Macklin, the plaintiffs sued to set aside a decree passed against their father as manager of the joint family of which they were members on the ground of his negligence. The trial Court held that the plaintiffs were sufficiently represented in the former suit by the father as manager of the joint family and that the matter was res judicata. In appeal the High Court sent the matter back to the lower Court for disposal on merits, and expressed the following opinion (p. 130):

It is clear law that a minor has a right to sue to void a decree which is obtained against him owing to gross negligence of his guardian, and the rule would apply whether the guardian be a guardian ad litem appointed by the Court, friend, or even the Hindu law guardian, i.e. his father.

I am unable to agree with this decision. It was not a case of a guardian ad litem, and is therefore not strictly in point on this reference, but I can see no reason why a minor member of a Hindu joint family, who is not a party to a suit because he is sufficiently represented by the manager, should have any better right to set aside the decree than an adult member of the family, who is also represented by the manager. On any view of the matter, the case seems to me to be an unwarranted extension of the principle that a minor can set aside a decree against him on the ground of misconduct of his guardian ad litem."

[Emphasis added]

[7] In Bhagabat Sahu vs. Parbati Samal and Ors. reported in AIR 1982 Orissa, the Orissa High Court has considered the similar question and answered in the manner as reflected in the passage reproduced hereunder:

"3. The question that is canvassed has two facets:--

(i) Whether the legal representatives of the original defendant were really unrepresented and, (ii) in case they, admittedly minors, went unrepresented, whether the decree was a nullity and could be ignored by the executing court.

I have already pointed out that when the original defendant died, the legal representatives were brought on record. The minor children were asked to be represented by their mother, the natural guardian. The natural guardian received summons from the court and entered appearance. She also participated in the final decree proceeding and even took steps before the Pleader-Commissioner but later chose not to appear in the proceedings and allowed the matter to get concluded ex parte.

Order 32, Rule 3 C.P.C. requires that where the defendant is a minor, the court, on being satisfied of the fact of minority, is to appoint a proper person to be guardian for the suit for such minor. This provision was obviously applicable to the facts of this case. The court had done its duty in ensuring that the minor children of the original defendant were appropriately represented by their natural guardian. If the final decree proceeding had been allowed to continue without the legal representatives of the defendant being represented, possibly it would be a clear case of the decision being a nullity. It is open to a guardian representing the interests of the minors after he or she is aware of the scope of the litigation while acting prudently not to contest the lis. This would be certainly a matter of prudent management of the minors' interests and, therefore, a matter within the competence of the guardian. Once the defendants are appropriately impleaded and represented, the duty under Rule 2 of Order 33, C. P. C. would come to an end and the proceeding before the court must be taken to have been duly constituted. A distinction must be drawn between a case where the minors are not adequately represented from the commencement and the proceeding at its inception, therefore, is a nullity and a case where the minors are adequately represented and there is a duly constituted proceeding where the guardian acts for some time and then omits to take steps."

[8] In Ashrafi Lal vs. Koili (Dead) by L.Rs. reported in AIR 1995 SC 1440, the apex court has further exposited the law on considering the decision of the Privy Council and various High Courts and some of them embody conflicting decisions. In Ashrafi Lal (Supra) it has been held as under:

"9. The question is whether it is permissible for a minor to avoid a judgment delivered in an earlier proceeding to which he was a party on the ground of negligence of his next friend. In England, an infant plaintiff is as much bound by a judgment or order as an adult, even though there may have been irregularities in the conduct of the proceedings, unless there has been fraud or gross negligence on the part of his next friend. [See: Halsbury's Laws of England, 4th Edn., Vol. 24. Para 895.12]. In Re Hoghton, Hoghton v. Fiddey (1874) LR 18 Eq 573, Sir Richards Malins V. C, while considering the question whether an infant is to suffer by any negligence on the part of a next friend, has observed: 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.

The Courts in India, by and large, have adopted the same approach. Till 1936 there was consensus of judicial opinion that it is permissible for a minor to avoid a decree obtained against him if there is negligence on the part of his next friend in the conduct of the case. [See: Lalla Sheo Churn Lai v, Ramnandan Dubey (1894) ILR 22 Cal. 8; Gursan Das Natha v. Ladakavahu (1895) ILR 19.Bom. 571; Hanmantapa Chundruna Punnayyah v. Rajan Viranna AIR 1922 Mad. 273; Kumar Ganganand Singh v. Maharaja Sir Rameshwar Singh Bahadur AIR 1927 Pat. 271; Imam Din v. Puran Chand (1919)ILR 1Lah27: AIR1920 Lahore417; Siraj Fatma v. Mahmud Ali (1932) ILR 54 All. 646 : AIR 1932 All 293 (FB).

In 1936, the Privy Council in Talluri Ventaka Seshayya v. Thadikonda Koliswara Rao AIR 1937 P.C.I, considered the question whether a decree can be set aside on the ground of gross negligence in the context of a representative suit under Order 1, Rule 8, C.P.C. In that case, their Lordships, after noticing the decisions of the Calcutta High Court and Madras High Court, have observed: Their Lordships are not concerned to discuss the validity of these decisions, or the illusive distinction between negligence and gross negligence, as they are satisfied that the principle involved in these cases is not applicable to such cases as the present one. The protection of minors against the negligent actings of their guardians is a special one, and in these cases the plaintiff in the second suit was also the plaintiff in the former suit, although in the earlier suit he or she had sued through a guardian. [p.4]

The Privy Council did not, however, agree with the view expressed in Karri Bapanna v. Yerramma AIR 1923 Mad 718, that the principles of Section 44 of the Evidence Act can be extended to cases of gross negligence and observed:

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. 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. [P.4]

After the said decision of the Privy Council, the matter has been considered by the various High Courts. Most of the High Courts have taken the view that though a judgment against a minor cannot be avoided on the ground of fraud or gross negligence on the part of his next friend under Section 44 of the Evidence Act, it is permissible for the minor to file a suit to set aside the. decree on the ground of fraud or gross negligence on the part of his next friend. See: Mahesh Chandra v. Manindra Nath; Eqappa Chettiar v. Ramanathan Chettiar AIR 1942 Mad. 384; Iftikar Hussain Khan v. Beant Singh AIR 1946 Lah. 233 (FB); Mohammad Baksh v. Allah Din AIR 1942 Oudh 33; Kamkashya Narain Singh Bahadur v. Baldeo Sahai and Rameshwar Prasad v. Ram Chandra Sharma . The Bombay High Court has, however, taken a different view and has held that gross negligence, apart from fraud or collusion on the part of the next friend or guardian ad litem or a minor litigant cannot be made the basis of a suit to set aside a decree obtained against him. [See : Krishnadas Padmanabhrao Chandavarkar v. Vithoba Annappa Shetti AIR 1939 Bom. 66 (67) (Full Bench)]. In that case Beaumont C. J. has disagreed with the earlier decisions of the said High Court on the view that the said decisions were based on a misconception of English law and that under the English law an infant cannot challenge a decree properly passed against him on the ground that his guardian ad litem was guilty of gross negligence in suffering the decree, and if that is so, there was no reason why such a cause of action should lie in British India. Meredith J., in Kamkashya Narain Singh Bahadur v. Baldeo Sahai AIR I950Patna97 (FB) (supra), has dealt with the English law on the subject and has pointed out that Beaumont C. J. in Krishnadas Padmanabhrao Chandavarkarv. Vithoba Annappa Shetti AIR 1939 Bom 66 (FB) (supra) was not right in his appreciation of the English law on the subject. According to the learned Judge [Meredith j.] the substantive right of an infant, on attaining majority, 10 avoid a decree obtained against him owing to the gross negligence of his next friend was undoubtedly recognised in England from early times. The Privy Council in Talluri Venkata Seshayya v. Thadikonda Kotiswara Rao AIR 1937 P.C.I (supra) has also pointed out that protection of minors against the neglect actings of their guardians is a special one. In she instant case, the High Court has proceeded on the basis that it is permissible for a minor to file a suit to set aside a decree on the ground of gross negligence on the part of his next friend. We are in agreement with the said view.

The question for consideration is whether, apart from filing a separate suit for setting aside a decree on the ground of gross negligence on the part of his next friend, it is permissible for a minor to avoid a decree, if relied upon in a subsequent proceeding, on the ground that the said decree was obtained on account of gross negligence on the part of his next friend in the previous suit. This would be permissible only if Section 44, of the Evidence Act can be invoked. As pointed out earlier, the Privy Council in Talluri Venkata Seshayya v. Thadikonda Kotiswara Rao AIR 1937 P.C. I (supra) has laid down that Section 44, of the Evidence Act cannot be extended to cases of gross negligence. But in the said case the Privy Council has observed that the Court cannot treat negligence, or gross negligence, as fraud or collusion, unless fraud or collusion is the proper inference from the facts. In other words, in cases where an inference of fraud or collusion can be drawn from the negligence or gross negligence of the next friend it would be permissible for a minor to avoid the judgment or decree passed in the earlier proceeding by invoking Section 44, of the Evidence Act without taking resort to a separate suit for setting aside the decree or judgment."

[Emphasis added]

[9] On the similar point, Mr. S. Lodh, learned counsel appearing for the appellant has relied on a decision in Hemansu Narandas Patel vs. Maniben Dhanjibhai Gandhi reported in AIR 2006 Guj 69 where the Gujarat High Court has observed that after long lapse of time when there was an attempt to void a decree passed without any formal order appointing the guardian ad litem in such an eventuality the decree cannot be held as nullity or in-executable:

"6. The observations and discussion made by the lower Court is that the litigation was contested by all the defendants including the present petitioner and he was represented by his elder members of his family who were also defendants in the said suit. Mr. Ieyasu has fairly accepted that format of memo of First Appeal preferred, contains name of the present petitioner and on that day, he was major. So, he is aware about the litigation and no formal attempt was made by him to get the decree set aside being nullity till the termination of the proceedings before the Apex Court which took number of years. So, this Court is not in agreement with the say of Mr. Ieyasu that in absence of any formal order of appointment of a guardian for minor defendant No. 4 seamanship- present petitioner, the decree remains nullity and can not be executed against the present petitioner. On the contrary, it appears that the defense taken by the petitioner is nothing but an after-thought and application exh.23 appears to have been filed to protract the litigation and to stall the execution proceedings filed after a long lapse of time. This court is of the view that in such an eventuality, the decree can not be held as nullity or in executable and is binding to the defendants including present petitioner -original defendant No. 4 who continued with the litigation and consciously entered into dispute till the same is redressed by the Apex Court."

[10] Mr. S. Lodh, learned counsel appearing for the appellant referred a decision of the Rajasthan High Court in State of Rajasthan and Ors. vs. Rao Dhir Singh and Ors. reported in AIR 1972 Raj 241 where it has been held that :

"28. Where however a minor is properly represented in a suit, but the next friend or the guardian ad litem acts with gross negligence, there is a divergence of judicial opinion as to whether the decree is binding on the minor. The view of the Allahabad, Calcutta, Madras, Lahore and Patna High Courts is that the minor can file a suit in the Civil Court to avoid such a decree. The view of the Bombay HighCourt on the other hand is that the minor cannot avoid the decree. The reasoning is that a plaintiff after be had got a person appointed as the guardian ad litem of the minor defendant could not be held responsible for the failure of the guardian ad litem to perform his duty and the anxiety of the Courts to protect an infant who cannot protect himself at the expense of finality in suits against infants was to be deprecated. It was pointed by the learned Judges in AIR 1939 Bom 66 (FB) that in Venkata Seshayya v. Kotiswara Rao, 64 Ind App 17 = (AIR 1937 PC 1) their Lordships of the Judicial Committee had held that Section 44, Evidence Act, could not be extended to cases of gross negligence. They were of the view that Section 44 defined with precision the grounds of such avoidance as fraud or collision, and that negligence or gross negligence could not amount to fraud unless faud or collusion was the proper inference from the facts. The other High Courts have however taken the view that the guardian of a minor is a trustee for the minor and he is under an obligation to look after the best interest of the minor and if the minor can show that the guardian had not done his duty and the minor's interest was thereby jeopardised the minor has a substantive right to avoid the decree. These Courts have held that Section 44, Evidence Act was permissive and not prohibitive.

In Rameshwar Prasad v. Ram Chandra, AIR 1951 All 372 a Full Bench of the Allahabad High Court held that a decree passed in a suit in which the guardian or the next friend of the minor was grossly negligent is voidable and not void. That means that the decree is valid for all intents and purposes so long as it has not been duly avoided by the party having the right to avoid it and within the period of limitation prescribed for the purpose.

In Gurdevi v. Raman Mal, (1910) 8 Ind Gas 547 (Punj) an obiter observation was made by a learned single Judge of the Punjab High Court to the effect that

"as at present advised, I see no difficulty in her suing again through another next friend, or suing on attaining majority."

This observation is not correct in our opinion. A decree in which the minor is properly represented is binding on him. A minor suing through one next friend cannot bring another suit through another next friend when the first suit is dismissed. Nor can he bring a suit on the same cause of action after attaining majority."

[Emphasis added]

[11] From the other side, Mr. B. Saha learned counsel appearing for the respondents has submitted that there was gross negligence on the part of the "next friend" who represented the plaintiff-respondent in the previous suit which has been dismissed for non-prosecution. Mr. Saha learned counsel has submitted that it is apparent in the face of record that the plaintiff-respondent had share in the property left by Monoj Kumar Sharma through her mother Namita Sharma (Goswami) who died on 26.07.1997. Mr. Saha learned counsel has submitted that the power of attorney by which Sisir Sharma, since deceased, now represented by the appellant respondent No. 10 as his legal heir was authorized to institute the earlier suit being TS 23 of 2003 [renumbered as TS 107 of 2004] was revoked for purpose of managing the property. Thus, he was not competent to transfer any property by the questioned sale deeds bearing No. 1-8071 dated 14.09.2000 and No. 1-8913 dated 06.10.2001. The title suit as referred as the former suit or the earlier suit was instituted for cancellation of those deeds where initially the plaintiff-respondent was represented but later on she was transposed as one of the plaintiffs. Admittedly the said suit was dismissed for non- prosecution. On attaining the majority the plaintiff-respondent has instituted the present suit [or the subsequent suit] being TS 53 of 2007. Mr Saha learned counsel for the respondents has further submitted that on 20.06.1997 Namita Sharma (Goswami) died leaving behind her four daughters and her husband Krishnapada Goswami, the respondent No.9 herein, who represented the plaintiff-respondent in the former suit. Mr. Saha, learned counsel for the respondents has further contended that with death of Namita Sharma (Goswami), the power of attorney which she executed nominating Sisir Sharma, since deceased, became ineffectual in as much as on her death, the legal heirs immediately inherited the share in the suit property which has been sold out by the questioned deeds. Having queried by the court as to whether any allegation of mis-conduct of the respondent No.9 (a) had been raised by the plaintiff-respondent. Mr. Saha, learned counsel has clearly submitted that there is no allegation against the respondent No. 9 (a) who represented the plaintiff-respondent in the previous suit. However, Mr. Saha learned counsel for the respondents has referred to this court that Sisir Sharma since deceased "had no competency to sell the suit land because the Power of Attorney was cancelled long before the illegal sale. Not only that the mother of the Plaintiff, the Proforma- Defendant Nos. 10(b) to 10(d) and the husband of the Proforma- Defendant No.10(a), i.e. Namita Sharma (Goswami), died long before. So under no circumstances the Vendor could represent the Legal-heirs and Survivors of Namita Sharma (Goswami) who inherited one share of the suit land. It was also within the knowledge of the Vendor, i.e. the Defendant No.2 herein. By suppressing such vital information he caused alienation and sale of the suit land to get wrongful gain at the cost of the Plaintiff and other co-sharers. The Plaintiff's interest had been adversely affected. [from Para 12 of the plaint]. Mr. Saha learned counsel for the respondents has emphatically submitted that the fraud is in the face of the records. Immediately after attaining the majority on 20.06.2007, the plaintiff-respondent has instituted the present suit seeking cancellation of those fraudulent deeds. Mr. Saha, learned counsel for the respondents has further submitted that Section 8(3) of the Hindu Minority and Guardianship Act, 1956 clearly provides that any disposal of immovable property by natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him. Hence, the finding of the first appellate court is absolutely consistent with the provisions of law. Hence, no interference from this court is called for. To support his contention as noted above Mr. Saha, learned counsel for the respondents has relied on a series of decisions.

[12] In Gobardhan Das vs. Dau Dayal reported in AIR 1932 AII 273, Allahabad High Court in its Full Bench dealt with the question primarily whether there was any fraud, exercised by the judgment which prevented execution of the decree, sometime within 7 years immediately before the date of application for the execution, yet when section 48 (2) (a) was applied, was it a correct step? As such, the said report does not have any remote nexus with the present controversy. Similarly, in Mt. Dhapo and Anr. vs. Ram Chandra and Ors. reported in AIR 1934 AII 1019 the Allahabad High Court has held as under:

"6. According to the law, as it stands now, the manager of a joint Hindu family may sue or be sued as representing the family in respect of transactions entered into by him as manager of the family or in respect of joint family property, and a decree passed against him would bind all other members of the family. The only limitation to his power is that it must be shown that he acted for the benefit of the joint family. In the case before us, it was open to the plaintiffs to have sued Reoti alone for the specific performance of the contract as representing the joint family. If a decree had been passed, it would have been binding on the other members of the joint family of the minor. The only ground on which he could have challenged that decree would have been that the transaction was not for his benefit. Now, we see that in the case before us a suit was instituted for the specific performance of a contract by the plaintiffs. It was open to them to have sued only the manager as representing the entire family but somehow, in my opinion, unnecessarily, they made the minor a party to the suit. The suit was decreed ex parte against the minor. It appears that the minor can avoid that decree against him only by showing that the transaction was not for the benefit of the estate and as that point has been decided against him he cannot now avoid that decree. If the contention raised by the learned Counsel for the appellants were accepted then the logical consequence of it would be that amanager of a joint Hindu family would never be able to enter into contracts, even if they be for the benefit of the estate, which could be specifically enforced against the members of a joint family. The result would be that the powers of the karta of the family to make binding contracts for the benefit of the joint family would be curtailed."

[13] It has been further observed in Ramchandra (Supra) that the contention that the minor co-parcener has no locustandi, to raise objection because there is a decree outstanding against him in which he had been impleaded as the guardian of his elder brother. Section 44 of Evidence Act has no application to such a case. If the minor was not in reality properly represented in the suit or he was not a party to the judgment and it cannot stand in his way. It has been observed as under:

"The mere fact that he has not yet brought a suit to have it set aside does not debar him from raising the same objection as a defendant in the pie-sent suit."

Thus, it has been emphasised that the nature of the representation can be examined in the suit filed by the minor even, if there is allegation against the nature of representation in the plaint. Reliance has been placed on Iftkhar Hussain Khan vs. Beant Singh minor through his maternal uncle Prabh Dyal reported in AIR 1946 Lah 233 where the Lahore High Court in its Full Bench observed, inter alia, as under:

"53. The only real case to the contrary effect is the Full Bench decision of the Bombay High Court in Krishan Das Padmanabhrao v. Vithoba Annappa A.I.R. 1939 Bom. 66. I have carefully examined that decision and I respectfully agree with the opinion expressed by Din Mohammad, J. in Punnun Mal v. Bishambar Dayal A.I.R. 1940 Lah. 205, that the reasons given by the learned Judges of the Bombay Full Bench are not convincing. One of the learned Judges took that view with considerable hesitation. The other learned Judges were influenced in their decision by the consideration that under English law such an action was not permissible. It may be that in English law such an action, or in other words, an original bill cannot be filed by the minor for the reason that the remedy by way of review is available; but that is only a matter of procedure and not a matter of substantive law.

A minor can obtain relief under English law for the gross negligence of his guardian in one form or another. That being so, I do not see why he should be disentitled to get relief in India, and if that relief cannot be obtained by review I do not see why it could not be available to him by filing a separate suit. This question came up for consideration before their Lordships of the Privy Council in Venkataseshayya v. Kotiswara Rao and some of the decisions mentioned in my brother's judgment in support of the proposition were cited before their Lordships. Their Lordships did not negative the rule laid down in these decisions in favour of a minor. On the other hand, they observed that this was a special plea available to minors for vacating previous judgments passed against them and was intended for the protection of minors. The matter has been elaborately discussed by Sir Shah Muhammad Sulaiman C.J., Allahabad High Court, in Mt. Kanta Devi v. Mt. Kalawati A.I.R. 1942 Lah. 205. In that decision the learned Chief Justice expressed the opinion that where a guardian has been grossly negligent in the conduct of the minor's case, in substance it becomes a case where the minor has not been represented in fact, though he has been technically represented in law. Substantially speaking, the minor's case has gone by default and, therefore, the minor should not be prejudiced and his adversary allowed to reap the benefit of an unequal fight. With great respect I express my agreement with that view.

It may be urged that by allowing a minor, litigant the additional plea of gross negligence of his guardian to have a judgment vacated he is being placed on a higher footing than an adult litigant. I think that contention is unsound. He is only being given the same opportunity to fight out his case fairly as exists in the case of an adult. By merely getting the former decree vacated the minor does not automatically win the case against his adversary. The fight re-starts, and the minor's opponent can still win the case after a fair fight. If he loses he disgorges the unfair advantage that he had obtained and that cannot, therefore, furnish him with a just grievance.

In the case of an adult litigant if he keeps certain documents of title in his pocket and loses the case or does not prefer an appeal in a perfectly good case in spite of the advice of his legal adviser he suffers for his own fault and has nobody else to blame. Similarly, if an adult party to a case is directed by a revenue Court to file a civil suit within a certain 'time and he fails to do so and loses the property he reaps the consequences of his own act and same is the case if he fails to put forward perfect defences available to him in a civil litigation. But in the case of minor, the minor litigant in all these supposed cases suffers not for any fault on his own part but by reason of the fact of minority and infancy. He himself is helpless; he is in the hands of others and those others are grossly careless. In these circumstances on no principle of justice and fair play should he be allowed to suffer. To deny the minor the plea of gross negligence of his guardian in such like cases is to deny him are justice and is to handicap him to a light against his adversary who can always be compensated when the litigation is reopened by handsome costs.

It was said that if a guardian ad litem has engaged a lawyer he has done what he was expected to do and what any adult similarly situated would have done and the plea of gross negligence of the guardian, therefore, cannot arm the minor with a new weapon. In the first place, lawyers are not necessarily engaged in all litigations. But even so, it may be that the guardian does not supply the lawyer with relevant documents and material in his possession and by reason of his carelessness the lawyer himself feels helpless and cannot safeguard the minor's interest. Injury in such cases to a major litigant is caused by himself and disentitles him to relief while that is not so in the case of a minor.

The conduct of a guardian may be callous and faulty and he may not carry out the directions of the lawyer and may not even file an appeal when the lawyer advises an appeal and certifies the case to be a good one for appeal. I see no reason why the minor should suffer an these eventualities. In some cases this rule has been sought to be justified on the ground that cases of gross negligence of a guardian of a minor stand on the same footing as fraud and collusion and that gross negligence in instance similar to the one I have given amounts to fraud.

I cannot subscribe to this view because gross negligence and fraud are in law two mutually exclusive concepts, though the same facts may be evidence either of one or the other. In my view, therefore, apart from fraud, gross negligence of the guardian itself without more is a ground to vacate a judgment against a minor and is sufficient to reopen the previous litigation. These cases will now be remitted to the Single Bench for final disposal."

[Emphasis added]

[14] Even if the reliance has been placed on Iftkhar Hussain Khan (supra) but Mr. Saha learned counsel for the plaintiff-respondent has clearly submitted that there is no plea of gross negligence of the guardian in the plaint. In such circumstances and in absence of any material in the plaint about the conduct of the respondent No. 9 (a), it cannot be inferred that there was gross negligence on the part of the respondent No. 9 (a), the father of the plaintiff-respondent. Whether is there any pleadings or material which amount to fraud? The answer must be in negative. In Seth Kishori Lal and Anr. vs. Haji Muhammad Nazir and Ors. reported in AIR 1950 AII 97 the Allahabad High Court has dealt with a matter which is completely different and have no nexus with the controversy. However, in Vaidyanath Sahay vs. Rambadan Singh and Anr. reported in AIR 1966 Pat 383 Patna High Court in a case where the ad litem guardian was appointed and there was serious allegations in respect of representation as the ad litem guardian, had occasion to observe as follows:

"9. On behalf of the appellant it was pressed that the ex parte decree was liable to be set aside for the reason that the plaintiff minor was not properly represented. No notice as contemplated under Rules 3 and 4 of Order 32, Civil Procedure Code, was served on the plaintiff or his natural guardian, his mother. The peon's report and the evidence of the peon show that those notices were sent inside the house, where the plaintiff's mother was living, through a maid servant, who came back and reported to the peon that the mother took the notices but refused to give any receipt therefor. Learned counsel commented that in absence of any evidence from the maid servant in court, there was no legal evidence to support the finding that there was proper service of the notice on the minor and his natural guardian. He relied upon a single Judge decision of this Court in Smt. Snehlata Devi v. Janardan Prasad Singh, AIR 1940 Pat 563. I am afraid the mere non-examination of the maid servant cannot wipe out the effect of the peon's report, which was duly proved in evidence. It would be rarely possible to bring the maid servant in such a case as a witness to court by the other side, particularly after a long period of such service of notice. D. W. 16, who was a witness to the peon's report also deposed in court. Two other witnesses, D. Ws. 5 and 22 spoke about the service of notice in connection with the execution case and attachment of property. There has been some confusion in the judgment of the court below in regard to their evidence; but taking into consideration the peon's report and the evidence of the peon and D. W. 16, I think the finding of the court that there was service of the notices to the minor and his natural guardian, can be upheld. Clause (4) of Rule 4 of Order 32 of the Civil Procedure Code provides for the appointment of an officer of the court as guardian of a minor where the natural guardian is found unfit or unwilling to act for the minor. In the instant case, when the mother did not appear in the money suit for the minor after notice served upon her, the court was right in thinking that an officer of the court should be appointed; and in that view, the appointment of a pleader guardian cannot be assailed.

Learned counsel, however, contended that the guardian- ad-litem was grossly negligent because he allowed the suit to be decreed ex parte. It is not enough that a minor should be merely represented by a guardian. It is also necessary that the guardian should represent him effectively. In a case where the interests of the minor are not guarded in a litigation by the court-appointed guardian as a prudent man ought to do, the minor, after attaining majority, can legitimately make a grievance of that to avoid the consequence of the litigation decided against him during his minority. Any kind or negligence will not entitle him to such a course. A minor can avoid a decree on the ground of gross negligence on the part of his guardian even in absence of proof of fraud or collusion. In this case the appellant contended that the fact that an ex parte decree was allowed to be passed against a minor was enough to show that the guardian was grossly negligent. The copy of the ex parte decree or the order sheet in the suit has not been exhibited. We do not know if a written statement was filed on behalf of the minor or not. We also do not know if the pleader guardian appeared in court at the time of hearing of the suit There may be cases where in absence of worthwhile defence a contest would be fruitless. On evidence adduced in this suit the court below has found that there was a debt due from the plaintiff's father to defendant 1: and as such, there was justification' for the decree passed in the previous suit against the plaintiff. But if it appears that the pleader guardian did not enter appearance or did not take any pains to see what defence could be put for the minor, that may amount to gross negligence on his part. We think it necessary to bring on record the ex parte decree and the order-sheet of the suit by way of additional evidence, as a proper conclusion about the alleged gross negligence of the pleader guardian cannot be arrived at without them. In that view, the lower appellate court, to which the case is remanded, will take those two documents into consideration along with other evidence as already available on record to come to a finding on the point.

Another point urged for the appellant was that on the death of the plaintiff's father in 1938, half share in the property devolved on the plaintiff's mother under Hindu Women's Right to Property Act. After the mother's death in 1945, the plaintiff succeeded to that. The execution sale was held on the 8th of January, 1942; and the delivery of possession was given through court to defendant 1, the auction-purchaser, on 1st of April, 1942. As his mother was alive at that time and she was not a party to the ex parte decree or the execution case, her half share in the property was not affected by the court's sale. In that view, the plaintiff is entitled to recovery of possession of that. Tin's was not pleaded in the plaint. For the first time, it was raised during argument before the trial court. Both the courts did not entertain that for the reason that the other side was not appraised of it in absence of proper pleading. It is true that a plea not pleaded or not raised in issue can be entertained at a later stage, even sometimes in appeal, provided the party concerned is not prejudiced and provided further, that as materials and facts to supply the basis for such a plea are already on record. Alternative pleas in such circumstances can be entertained, see the case of Mohan Manucha v. Manzoor Ahmad Khan, AIR 1948 PC 26. But in the present case the position seems to be different. Defendant 1 might have raised some answer to this aspect of the case. For example he might have shown that the plaintiff's mother had already parted with or surrendered her interest before the court sale. Since some other facts might have been necessary to consider before the question could be fully determined, I think the Court below was right in not entertaining this plea of the plaintiff."

[15] Even, this case is quite distinguishable from the fact as laid in the plaint. There is no allegation of gross negligence or any negligence against the respondent No. 9 (a) who represented the plaintiff-respondent in the previous suit. In Ramchandar Singh and Anr. vs. B. Gopi Krishna Dass and Ors. reported in AIR 1957 Pat 260 the Patna High Court on review of a catena of decisions in respect of appointment of guardian ad litem has finally culled out some principles which are laid as under:

"1. Order 32, Rule 3(4) of the Code is mandatory and imperative, and, its terms must be strictly complied with. Unless notices in terms of Order 32, Rule 3(4), are served on the minor and his guardian, and, when in spite of service of such notice they do not choose to appear, only then, and, then only, the Court gets jurisdiction to appoint a guardian- ad-litem for such a minor. But, even then, before appointing a guardian for the minor the Court must, as required by Order 32, Rule 4(3), obtain consent of the person proposed to be appointed guardian for the minor.

Disobedience of these mandatory provisions leads to the consequence that there is no proper I party to the suit, in the eye of law, and the minor is not a party to the suit, or proceeding, notwithstanding that his name appears oh the record, and, as such, he must be deemed in law to be wholly unrepresented, and, consequently, the jurisdiction Of the Court to proceed against such a minor will be ousted, and, the Court will have no jurisdiction to render any Judgment, or pass any order against such a minor, and, when such a minor is not a party to an execution proceeding, the execution Court also has no jurisdiction to sell his property, because the Court has no jurisdiction to sell the property of a person, who is not a party to the suit, or the execution proceeding.

The mere fact that a pleader guardian-ad-litem has been appointed by the Court, without complying with the mandatory provisions of Order 32, Rule 3(4) of the Code, and the further fact that such a pleader guardian has acted on behalf of such a minor, cannot clothe him with the power to act as such on behalf of such a minor, and, he must be considered to be disqualified from acting as such guardian under the express provisions of Order 32, Rule 3(4) of the Code, and therefore, in such a case also, the minor is not properly a party to the proceeding, and the judgment rendered or any order passed against him is without jurisdiction, and null and void, and the Court will have no jurisdiction in such a case also to proceed to sell his property.

Where, however, there is a mere defect, such as, absence of a formal order appointing a person as guardian-ad-litem, notwithstanding that the notice in terms of Order 32, Rule 3(4), and Order 32, Rule 4(3) have been served, such a defect in the appointment of the guardian will not necessarily be fatal to the proceeding, unless it is shown that the minor was prejudiced by the defect because such a defect is a mere irregularity, and a defect of mere form, and not of substance, and it does not go to the root of the jurisdiction of the Court to render any judgment, against such a minor.

When, therefore, Sub-rule, (4), of Rule 3 of Order 32 of the Code, has been broken and completely disregarded, such a disobedience results in nullification of the order appointing guardian, and, therefore, in such a case the question of prejudice or no prejudice to the minor is irrelevant. Such a defect being of substance, and going to the root of the jurisdiction of the Court, the question of prejudice or no prejudice to the minor is not the determining factor in order to ascertain the invalidity of the proceeding against such a minor. Such a proceeding is null and void against the minor, even when no prejudice has been caused to him by such a defect."

[Emphasis added]

[16] When the order of transposition is not questioned in any manner, nor the conduct of the respondent No. 9 (a) is questioned in any manner, those principles are not very relevant in the present context. Mr. Saha learned counsel has referred another decision in Ram Chandra Arya vs. Man Singh and Ors. reported in AIR 1968 SC 954 where the apex court has observed that when without appointing guardian ad litem for minor/lunatic, the decree is issued, the said decree is bound to be declared null and void. Mr. Saha, learned counsel for the respondents has pressed another decision of Allahabad High Court in Khursheed Ahmad and Anr. vs. Gulzaar Ahmad and Ors. reported in AIR 2006 All 280. In Khursheed Ahmad (supra) it has been observed as under:

"6. Here the trial court has not yet appointed the guardian of minor defendant No. 3 and had rejected the written statement filed by other defendants who also Include the father of the minor. Since the stage of filing written statement has not yet arrived in the suit, there did not arise any question for rejection of the written statement at all. The operation of the provisions of Order VIII, Rule 1 or Order VIII, Rule 10, C.P.C. was not there in the proceedings of the suit till the guardian of the minor defendant was actually appointed to file the written statement. Therefore, if the revisional court in such circumstances has interfered with the order of the trial court rejecting the written statement filed on record, I do not find any error in such order as to occasion an interference against it in the extraordinary Jurisdiction of this Court. The stage in the suit for filing written statement by one or the other defendants would arise only after appointment of guardian by the Court has been done and not before that."

[Emphasis added]

[17] In the same line, another decision of Allahabad High Court has been placed before this court but in that case the fact situation is completely at variance. Whether without being formally appointed as the guardian ad litem, a person can represent the minor in the first appeal. The first appellate court rejected such objection on the ground that nature of the objection was too technical and such objection cannot be used as a tool to defeat lawful decree of the court below. The Allahabad High court has also concurred with the view and observed as follows:

"It is settled law that all Courts of law are established for furtherance of interest of substantial justice and not to obstruct the same on technicalities. Reference--Jai Jai Ram Manohar Lal v. National Building Material Supply; : AIR 1969 SC 1267, wherein it has been held that if substantial justice and technicalities are pitted against each other, the cause of substantial justice should not be defeated on technicalities. No procedure in a Court of law should be allowed to defeat the cause of substantial justice on some technicalities. Reference-Ghanshyam Dass & Ors. v. Dominion of India & Ors.; (1984) 3 SCC 46."

[Emphasis added]

[18] In the context of the present case, this report does not have any relevance in as much as non-appointment of the guardian ad litem or the conduct of the respondent No.9 (a), the next friend has not been questioned by the plaintiff-respondent.

[19] Having appreciated the rival contentions as raised by the counsel for the parties and also appreciating the judgment of the first appellate court, which is under challenge in this appeal, this court is of the view that the said judgment is not visited by serious illegality nor the suit by the plaintiff-respondent in the circumstances is maintained. When there is no challenge against the conduct of the respondent No.9 (a) nor to the order of transposition, the plaintiff-respondent cannot institute a fresh suit after attaining the majority in as much as the cause of action of the suit arose in 13.01.2003 and 28.01.2003 when the questioned deeds were executed but the suit by the plaintiff-respondent has been filed on 28.08.2007. Thus, the suit is clearly barred by limitation. There is no averment in respect of the limitation. As the plaintiff-respondent being the plaintiff by transposition in the previous suit has right to file the fresh suit or to restore the suit under Order 9 Rule 4 of the CPC, she could have filed an application for setting aside the dismissals as ordered for non prosecution. The plaintiff-respondent did not file such application but instituted the fresh suit on the same subject matter of the previous suit and between the same parties. Thus, the subsequent suit is barred by res judicata as she has completely failed to show that there was any collusion or fraud on the part of the respondent No.9 (a) or he was grossly negligent in conducting the previous suit. Even the suit has not been framed appropriately. It is the fundamental duty of the minor when he attained the majority to lay all material facts which would give her locus standi to approach the civil court by filing a fresh suit on the same subject matter. No material whatsoever in respect of the conduct of the respondent No.9 (a) has been placed in the pleading or in the evidence. Thus, the plaintiff-respondent was not entitled to institute a fresh suit on the same subject matter between the same parties. Hence, the suit was barred and not maintainable. When the reference was made to Section 83 of Hindu Minority and Guardianship Act, 1956, this court has observed that that provision encompasses disposal of the immovable property by the natural guardian. No such case has been placed before the court and hence any intervention based on Section 83 of the said act is bound to be perverse. Moreover, the first appellate court in its anxiety to do justice to the minor has thrown the law in the wind and thus granted the decree in favour of the minor for the entire suit property covered by the questioned deeds, whereas the plaintiff-respondent was entitled 1/4th share of the said property. It is to be noted that even the respondent No.9

(a) was entitled to such property independently but he has not challenged the said order of dismissal in any form. However, that will not truncate the right of the plaintiff-respondent to file a suit or any other action if she had such right jurisprudentially. The court is constrained to observe that the way the suit has been framed it does not give the plaintiff-respondent any right to pursue the relief as claimed therein. The perspective facts are eloquent. The former suit was on the said subject matter. In the subsequent suit, no allegation has been against the respondent No.9 (a) who represented the plaintiff-respondent in the former suit.

In the result, the appeal is allowed and the impugned judgment and decree dated 19.01.2015 delivered in TA 01 of 2013 stands set aside. The judgment and decree of the trial court [the court of the Civil Judge, Senior Division, West Tripura, Agartala, Court No.1] is restored.

Draw the decree accordingly. Send down the LCRs thereafter.