BAI LILAVATI Vs. VALLABHBHAI MORARJI

JUDGEMENT

(1.) Under what circumstances a consent decree passed against a minor can be avoided by the minor ? Is it open to him to take up the contention that the next friend or the guardian ad litem who represented him was negligent and therefore the decree passed against him should be set aside ? If yes what should be the decree of negligence or would it be sufficient to show negligence simplicitor on the part of the next friend or guardian ad litem ? These are some of tie questions which have cropped up in this first appeal.

(2.) The appellants-original plaintiffs filed suit for declaration to the effect that the property of ward No. 6 of Surat Town and registered at Nondh No. 1950 is ancestral property and that they have interest in the same by birth. They also prayed for declaration that they are in actual possession of the property and the consent decree passed in Special Civil Suit No. 92 of 1968 (in which plaintiffs Nos. 2 3 4 and 5 were defendants and were represented by guardian ad litem appointed by the Court) be declared to be against the interest of the minor plaintiffs and not binding to them and that the same cannot be executed against them. The plaintiffs also prayed for determination of their share in the suit property and for partition. Defendants No. 1 and 2 (who are plaintiffs of Special Civil Suit No. 92 of 1968) contested the suit on facts as well as on law points. The other defendants who are relations of the plaintiff have substantially supported the suit filed by the plaintiffs. The trial Court dismissed the suit as per its judgment and order dated 5/05/1977 Hence the appeal by minor plaintiffs Nos. 2 3 4 and 5 represented by their mother plaintiff No. 1.

(3.) The pedigree is mentioned in the Schedule to the plaint. One Harkishandas Balubhai who was the main man had two sons Hasmukhlal and Kantilal-defendants Nos. 3 and 14 respectively. Minor plaintiffs Nos. 2 3 and 4 are the children of Hasmukhlal original defendant No. 3 Minor plaintiff No. 5 is the grand-son of Hasmukhlal (Defendant No. 3 and son of Arvindlal Hasmukhlal defendant No. 4. Plaintiff No. 1 is the mother of plaintiffs Nos. 2 to 5 and wife of defendant No. 3.