Report No. 69

I. The Problem

16.98. Gross negligence of guardian when a ground for setting aside.-

We now proceed to another matter relevant to judgments and decrees, which has created controversy. The controversy relates to the following question: Where there is gross negligence on the part of the next friend or guardian-ad-litem of a minor, though fraud or collusion is not proved, can the minor avoid the decree on the ground of such negligence? The question can arise in regard to all persons under disability. For brevity, only minors will be referred to.

16.99. Majority view.-

There are two views on the subject. According to the majority view, the minor can avoid the decree passed against him in such cases. This is the view taken by the High Courts of Allahabad1, Calcutta2, Kerala3,Lahore4, Mysore5 and Patna6. This is also the view expressed, though obiter, by the High Court of Delhi7.

1 See case law reviewed, infra.

2. See case law reviewed, infra.

3. Narayana v. Gopalan, AIR 1960 Ker 367 (DB) (reviews cases).

4. lftikhar v. Beant Singh, AIR 1946 Lah 233.

5. Bore Gowda v. Negaraju, AIR 1969 Mys 8.

6. See case law reviewed, infra.

7. See case law, infra.

16.100. A later Kerala case1 held that the ground of gross negligence was not available in the case of a suit relating to a joint family in which the karta represents the coparceners. But the decision does not affect the proposition laid down by that High Court in the earlier case.

1. Chambala Kanaji v. Pullemballi Cheerooty, AIR 1967 Ker 63 (68).

16.101. The contrary view has, however, been taken by the Bombay High Court1. In the leading Bombay case2 on the subject, it was held that under 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 there is no reason why such a cause of action should lie in (British) India. Hence gross negligence (apart from collusion) on the part of the next friend or guardian-ad-1 item of a minor litigant cannot, according to the Bombay view, be made the basis of a suit to set aside a decree obtained against the minor.

1. Krishna Das v. Vithoba, AIR 1939 Born 66; and other cases reviewed, infra.

2. Krishna Das v. Vithoba, AIR 1939 Born 66.

16.102. As the matter has come up before the High Courts more than once, a discussion of some of the decisions would be helpful in order to appreciate the amendment recommended on the subject1.

1. For details of the recommended amendment, see infra.

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