Second Appeal No. 717 of 1934. Case: Krishnadas Padmanabhrao Chandavarkar Vs Vithoba Annappa Shetti. High Court of Bombay (India)
| Case Number | Second Appeal No. 717 of 1934 |
| Judges | John Beaumont, Kt., C.J., Broomfield and Norman, JJ. |
| Issue | Indian Evidence Act (I of 1872) - Section 44 |
| Citation | AIR 1939 Bom 66, 1939 (41) BomLR 59 |
| Judgement Date | September 02, 1938 |
| Court | High Court of Bombay (India) |
Judgment:
Beaumont, Kt., C.J.
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The question submitted to this full bench is whether gross negligence apart from fraud or collusion on the part of the next friend or guardian ad litem of a minor litigant can be made the basis of a suit to set aside a decree obtained against him.
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Looking at the matter apart from authority, and as one of principle and expediency, it seems to me that it is difficult to justify the suggested cause of action on any recognised principle. A plaintiff who brings a suit against a minor is bound to see that a guardian ad litem is appointed, and it is for the Court to satisfy itself that the person appointed is a proper person. But the plaintiff is not bound, and is not in a position, to see that the guardian ad litem carries out his duties properly, and if the guardian ad litem fails in his duty, it is difficult to see why the plaintiff who has proceeded in good faith in accordance with the rules of the Court should be deprived of the fruits of his judgment. If the cause of action exists, it must rest upon the peculiar anxiety of Courts to protect an infant who cannot protect himself. But it must be recognised that such regard for infants can only be exercised at the expense of finality in suits against infants, and at the cost of some injustice to an innocent plaintiff or persons claiming through him. To say, as some Judges have done, that it is just and equitable that a minor should not suffer by the negligence of his guardian is to regard only one side of the picture.
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The question has led to a good deal of difference of opinion in the High Courts in India, and I will notice the authorities shortly.
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The first case is that of Raghubar Dyal Sahu v. Bhikya Lal Misser I.L.R. (1885) 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.
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In Lalla Sheo Churn Lal v. Ramnandan Dobey I.L.R. (1894) 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.
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In the Madras High Court it was held by a division bench in Punnayyah v. Viranna I.L.R. (1921) 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.).
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In the Lahore High Court there has been a conflict of opinion. In Imam Din v. Purn Chand I.L.R. (1919) 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 AIR [1928] Lah. 674 the contrary view was taken.
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In Patna also there have been conflicting decisions.
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In the Allahabad High Court there was also a conflict of authority, but in a recent full bench caseSiraj Fatma v. Mahmud Ali I.L.R. (1932) All. 646,- 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.
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I now come to the Bombay cases. In Cursondas Natha v. Ladkavahu I.L.R. (1895) 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.
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In Hanmantapa v. Jivubai I.L.R. (1900) 24 Bom. 547: 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.
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Similar observations apply to the decision in Vishnu Narayn v. Dattu Vasudeo (1907) 9 Bom. L.R. 478.
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In Sonubai v. Shivajirao I.L.R. (1920) 45 Bom. 648: 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...
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First Appeal No. 464 of 1983. Case: Bijendra Mandal and Ors. Vs Ganpat Mandal and Ors.. High Court of Patna (India)
...the English law on the subject and has pointed out that Beaumont C.J. in Krishnadas Padmanabhrao Chandavarkar v. 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 substa......
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O.M.P (E)(COMM.)--6/2016. Case: DAIICHI SANKYO COMPANY LIMITED Vs. MALVINDER MOHAN SINGH AND ORS. High Court of Delhi (India)
...The court held as follows:-“5 . In spite of the dissent expressed in Krishna Das Padmanabha Rao v. Vithoba Annappa, ILR 1939 Bom 340 : (AIR 1939 Bom 66) (A), it must now be taken in view of the decision of the Supreme Court in Bishundeo v. Sheogeni Rai, 1951 SCJ 413 at p. 418 : (AIR 1951 SC......
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First Appeal No. 464 of 1983. Case: Bijendra Mandal and Ors. Vs Ganpat Mandal and Ors.. High Court of Patna (India)
...the English law on the subject and has pointed out that Beaumont C.J. in Krishnadas Padmanabhrao Chandavarkar v. 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 substa......
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O.M.P (E)(COMM.)--6/2016. Case: DAIICHI SANKYO COMPANY LIMITED Vs. MALVINDER MOHAN SINGH AND ORS. High Court of Delhi (India)
...The court held as follows:-“5 . In spite of the dissent expressed in Krishna Das Padmanabha Rao v. Vithoba Annappa, ILR 1939 Bom 340 : (AIR 1939 Bom 66) (A), it must now be taken in view of the decision of the Supreme Court in Bishundeo v. Sheogeni Rai, 1951 SCJ 413 at p. 418 : (AIR 1951 SC......