Report No. 69

II. The Case Law

16.103. Case law-Allahabad.-

The Allahabad High Court, in a full bench decision,1 held that gross negligence was a sufficient ground to avoid a decree in the case of a minor represented by a guardian. The negligence must be of such a nature as to justify the inference that the minor's interests were not at all protected and therefore he was not properly represented. The direct result of the negligence must be a serious prejudice to the minor. The decree can be avoided where the negligence is so gross as to amount to a clear violation of the duty cast upon the guardian, although not brought to the notice of the court at the time.

1. Biraj Fatma v. Mahmood Ali, AIR 1932 All 293 (FB).

16.104. Calcutta.-

As regards the Calcutta High Court, though an early Calcutta case denied the right, the judgment in Lalla Shec Churn Lal v. Ramanandan Dobey, 1894 ILR 22 Cal 8, recognised the right; and that view was maintained in a later case in Mahesh Chandra v. Manindra Nath, AIR 1941 Cal 401. The current Calcutta view can be thus stated:

"Gross and culpable negligence on the part of the guardian-ad-litem is a sufficient ground to enable the infant to set aside a decree obtained against him. The minor's right to bring such a suit is an exception to the ordinary rule according to which a decree can be set aside only on grounds of fraud and collusion and is based on the broad principle of justice, equity and good conscience. Neither section 2 nor section 44 of the Evidence Act, nor section 11, Code of Civil Procedure, bars such a suit".

16.105. In the leading Calcutta case1, a decree was declared to be not binding because of neglect to prosecute the suit with due care on the part of the next friend of the minor. The decree was one striking off the suit for default of appearance.

1. Lana Sheo Churn Lai v. Rama Nandan Dobey, 1894 ILR 22 Cal 8 (Case of next friend).

16.106. In a later Calcutta case1, B.K. Mukherjee J. held that section 44 is permissive, and not prohibitive. While it allows a party to avoid a judgment by proving fraud or collusion, it does not destroy his right to challenge it on the ground of gross negligence.

1. Mahesh Chandra v. Manindra Nath, AIR 1941 Cal 401 (404, 405).

16.107. He held that gross and culpable negligence on the part of the guardian-litem is a sufficient ground to enable the infant to set aside a decree obtained against him. Neither sections 2 and 44, Evidence Act, nor section 11, Civil Procedure Code, bars such a suit.

16.108. The negligence of the guardian, in order to be a good ground for avoidance of the decree, must be of such a character as to justify the inference that the minor's interests were not at all protected and in substance, though not in form, the minor went unrepresented in the trial court1.

1. Emphasis supplied.

16.109. The failure on the part of the guardian to defend the suit when there is a perfectly good defence available, resulting in serious loss of rights of the infant, amounts to gross and culpable negligence.

16.110. But the minor cannot apply for review of judgment on the ground of culpable negligence on the part of the guardian ad litem, for a review on the ground of negligence cannot, strictly speaking, be said to be ejusdem generis with an error apparent on the face of the record or discovery of new and important evidence.

16.111. Delhi view.-

In the Delhi High Court, the following observations occur in one case1.

"If a next friend or guardian-ad-litem of a minor enters into a compromise on his behalf with the permission of the court under Order 32, rule 7 of the Code, the compromise and the decree based thereon would be as much binding on the minor as it is on the adult parties, unless the minor can show that the next friend or his guardian ad litem was guilty of fraud or negligence2. The onus of providing fraud or negligence on the part of the next friend or guardian-ad-litem would be upon the minor, and for this purpose he has to make clear and distinct allegations in his pleadings and to substantiate them."

In, this case, there were no allegations or inference of fraud; but the above dicta show the view which the judiciary would take.

1. Sant Bhushan Lal v. Brij Bhushan Lal, AIR 1967 Del 137 (141).

2. Emphasis supplied.

16.112. In the Delhi case the compromise was sustained as a family arrangement, which was drawn up to end a long drawn family litigation. The plaintiff, who was a minor, had been represented by his father as next friend. The father, in his statement to the court under Order 32, rule 7, Code of Civil Procedure represented that the compromise was for the benefit of the minor, and the court had agreed with it.

16.113. The principle laid down in the observations quoted above, therefore, did not apply on the facts. But the principle has been stated in clear terms which include negligence.

16.114. Kerala and Lahore.- This is also the Kerala view.1

The Lahore High Court, in a full bench case2, held that a minor can avoid a decree passed against him on the ground of gross negligence on the part of his guardian ad litem, even if he has not succeeded in proving fraud or collusion on the part of such a guardian. The discussion in the judgment is instructive and we shall revert to it later.

1. Narayenan v. Gopalan, AIR 1960 Ker 367 (DB).

2. Iftkhar Hussain Khan v. Beant Singh, AIR 1946 Lah 233 (FB).

16.115. Madras.-

In Madras the leading case is that of Chunduru Punnayah v. Rajam Viranna, AIR 1922 Mad 273. That decision has been followed in Mohomed Shadak Koyi v. Venkatta Komaraju, AIR 1940 Mad 810, and later in Eggappa Chettiar v. Ramanandan Chettiar, AIR 1942 Mad 384 (Leach, C.J. and Kuppuswami Aiyer, J.). The current Madras view can be thus stated:

"It is open to a minor to challenge a decree passed against him on the ground that his guardian had been grossly negligent in the conduct of the suit in which the decree was passed even in the absence of fraud or collusion".

16.116. Patna.-

In a Patna case1 in decision of Bennett and Beever JJ., the following observations occurs:-

"A minor is not bound by any proceedings taken against him during his minority unless he was a party thereto. Whether a minor was or was not a party to any such proceeding depends, in my opinion, upon whether or not he was effectively represented therein".

1. Ramudar Singh v. Ramsurat Singh, ILR 26 Pat 362: AIR 948 Pat 281 (285) para. 15.

16.117. It was observed that there was nothing in Order 32 of the Code of Civil Procedure to indicate that, provided the letter of the Order is followed, the minor will be bound by the decision, although in fact he was never effectively represented in the proceedings. Nor can such an intention, which is against the dictates of justice, equity and good conscience, in that it would open the door to undetectable fraud whereby many minors would be deprived of their rights and inheritance, be implied.

"When, therefore, any question arises as to whether a person is bound by any decree or order of a Civil Court passed during his minority, the proper and only test in my opinion, is whether he was so effectively represented in the proceedings as in justice, equity and good conscience to justify, in the circumstances of the particular case, the conclusion that he was in fact a party to these proceedings." A Full Bench case of that High Court reaffirms this view.

16.118. We have so far dealt with the majority view. The Bombay Full Bench case1 takes a contrary view. It is mainly based on the reasoning that this is not the English law. However, as has been pointed out, after full discussion, in the Patna case2, there are several English cases recognising the remedy. The Bombay Full Bench follows an earlier judgment of Beaumont C.J.3 The Full Bench ruling was followed in a later4 case.

1. Krishnadas v. Vithoba, AIR 1939 Born 66 (FB).

2. Kamakshya v. Baideo Singh, AIR 1950 Pat 97.

3. Anraj Johannal v. Dalpal Singh Supadu, AIR 1937 Born 464.

4. Nana Namdeo Patti v. Dalpat Supadu, AIR 1940 Born 33.

16.118A. Privy Council case.-

The matter has not been directly decided by the Privy Council. There is an old Privy Council decision1, in a case on appeal from the Cape of Good Hope, in which Lord Mynford observed:

"If His Majesty were to dismiss this appeal on account of the neglect of their guardians 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 .2 On the contrary, according to the Civil Law, as laid down in the Digest, lib. 4.1, 1.8 minors, although defended by their guardians or curators, may afterwards, on their causes being heard, be released from judgments pronounced against them".

1. Orphan Board v. Van Rosuen, (1825) 1 Knapp 84 cited in AIR 1950 Pat 97.

2. Emphasis supplied.

16.119. The observations of the Judicial Committee in Venkata Seshayya v. Kotiswara Rao, AIR 1937 PC 1, are sometimes misunderstood as negativing the majority view, but all the case decided was that negligence is not the same thing as fraud.

16.120. Supreme Court Judgment.-

The matter has not directly come up before the Supreme Court. In Bishund Rao's case.1Bose J. held, on the facts, that the decree of compromise could not be challenged. But he observed that if the minor is properly represented, the decree is binding on him "unless the minor can show fraud or negligence on the part of his next friend or guardian ad litem".

1. Bishundeo v. Seogem Ray, AIR 1951 SC 280 (283), para. 23.

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