Report No. 185

Section 44A (as proposed in the 69th Report)

Proposal in 69th Report is for adding section 44A relating to 'gross negligence of a guardian or next friend of a minor' as basis for setting aside or ignoring an earlier judgment against the minor. (This is to apply to persons under other disabilities also.)

In the above Report, it was felt that there was some conflict of opinion in the High Courts as to the right of a minor or other person under disability to sue to set aside a judgment on the ground of negligence of the guardian ad litem or the next friend. It was said that there was no direct judgment of the Privy Council or Supreme Court on the point. (para 16.118A). (para 16.120).

Now, the Report refers to Judgments of the High Courts of Allahabad (Biraj Fatma v. Mahmood Ali, AIR 1932 All 293 (FB), Calcutta, Lalla Sheo Churn Lal v. Bamanandan Dobey, (1894) ILR 22 Cal 8 and Mahesh Chandra v. Mahindra Nath, AIR 1941 Cal 401 (per B.K. Mukherjee J, as he then was); Delhi in Sant Bhushan Lal v. Brij Bhushan Lal, AIR 1967 Delhi 141; Kerala in Narayanan v. Gopalan, AIR 1960 Ker 367 (DB); Lahore Full Bench in Iftkhar v. Beant Singh, AIR 1946 Lah 233 (per Mehr Chand Mahajan J, as he then was); Mysore, Bore Gowda v. Negaraju, AIR 1964 Mys 8, as Judgments which affirm a right of a minor to challenge a Judgment on the ground of negligence of the guardian or next friend, since Section 44 does not prohibit any such action or defence. Mathern v. Ramc, ILR 14 Pat 824; Chandulal v. Ragam, AIR 1922 M 273; Egappa v. 278 Ramanathan, AIR 1942 Mad 384; Kamakshya v. Baldeo, AIR 1950 Pat 97 (FB).

The opposite view is contained in Krishna Das v. Vithoba, AIR 1939 Bom 66. We do not think that it is necessary to have a separate provision merely because of the contrary view in Krishna Das v. Vithoba, AIR 1939 Bom 66 and two other Bombay cases.

The 69th Report referred to the following observations of the Privy Council in Talluri Venkata Seshayya v. Tadikonda Kotiswararao (1936) 64 IA 17, referring to Judgments which held 'gross negligence' was always a ground (whether involving minors or not):

"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 actions of their guardians is a special one."

The Privy Council case was one where negligence was not equated with fraud (see para 16.119) but there are clear observations in that case that negligence of guardians is a special case. Then the Privy Council dissented from Karri Bapanna v. Sunkari, 45 MLJ 324 in equating gross negligence of guardians with fraud.

The 69th Report itself (see para 16.118) refers to an earlier Privy Council case (from Cape of Good Hope), in Orphan Board v. Van Rosnen (1825) 1 Knapp 84 (cited in AIR 1950 Pat 97) to the following effect:

"If His Majesty were to dismiss this appeal on account of the neglect of their guardian to bring it to a decision, when the infants attain their full ages they would have a right to revive it. Infants were not to be prejudiced by the neglect of their guardians. On the contrary, according to the Civil law, as laid down in the Digest, Lib, 41, 1.8, minors, although not defended by their guardians or curators, may afterwards, on their causes being heard, be released from judgments pronounced against them."

The 69th Report itself refers to the Supreme Court case in Bishun Deo v. Seogem Ray, AIR 1951 SC 280 at (para 23) where the above principle was clearly accepted by Bose J. The learned Judge held that the decree of compromise could not be challenged and that if the minor was properly represented, the decree would be binding on the minor:

"unless the minor can show fraud or negligence on the part of his next friend or guardian ad litem"

The 69th Report itself says that the Bombay High court had referred to some English cases which negatived the right but there were a large number of other English cases (referred to in AIR 1950 Pat) which were in favour of it, which were not referred to by the Bombay High Court.

In the light of the two Privy Council cases and the Supreme Court judgment, it is not necessary to include 'negligence' as a separate ground in Section 44 merely because of one judgment of the Bombay High Court. We do not agree for insertion of Section 44A as recommended in para 16.145 of the 69th Report.

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