RAHAMAT BIBI Vs. ABDUL GAFFUR

JUDGEMENT

(1.) The suit property which is a house in Pondicherry belonged to one Haji Mohammed Ibrahim Saib. He had three wives. Defendants 1 to 4 are the children by his first wife. During the pendency of the suit, the first defendant died and his legal representatives have been brought on record as defendants 7 to 9. Through the second wife, the said Haji Mohammed Ibrahim Saib had three sons and two daughters of whom the plaintiff is one of the daughters and defendants 5 is one of the sons. On 4-4-1956, the said Haji Mohammed Ibrahim Saib executed a gift deed in favour of two of his sons and two daughters, all of whom were minors at that time. Defendants 1 to 4 herein filed a suit Affair No. 289 of 1963 on the file of the Principal Sub-Judge, Pondicherry, for a declaration that the gift deed was not valid and for setting aside the same on various grounds. The four donees were made defendants in that suit. Three of them had already become majors. But the 4th defendant in that suit who is the plaintiff herein was a minor at the time when Affair No. 289 of 1963 was filed, she having been born on 25th Nov. 1949. In the plaint, this plaintiff was shown as being represented by the 6th defendant in the present suit. By judgement dt/- 28-4-1967, the suit Affair No. 289 of 1963, was decreed as prayed for. However, it appears that the 6th defendant was contending that she could not act or represent as the guardian of the minor and that she shall be kept out from the suit. In the judgement the cause title shows that the minor 4th defendant was represented by Bailvunby alias Zograby. It is the same person who was shown as the guardian of the minor in the gift deed dt/- 4-4-1956. However, at the end of the judgement, it is stated that 'Exonerate from the suit the lady Bailvunby alias Zograby". It is pointed out by the learned counsel for the respondents herein that the translation of that sentence from French as quoted above is not quite accurate and that it should read as 'keep out of the case the lady Bailvunby alias Zograby'. Be that as it may it is pertinent to point out that the decree itself is against all the four defendants and the decree declared that the gift deed dt/- 4-4-1956 is not valid and it was set aside and the first three defendants were directed to pay cost of the suit. It is stated that as per the law that was in force in Pondicherry, an appeal may lie to the Superior Court of Appeal against this judgement and the period of limitation is thirty days from the date on which the judgement was notified. It is the admitted case that no such appeal was filed within that period prescribed. However, Special Appeal No. 702 of 1967 was filed in this Court against the judgement and decree by the defendants 2 to 4 in Affair No. 289 of 1967. By judgement Dt/- 1-8-1969 a Division Bench of this Court dismissed that appeal as not maintainable on the ground that the appellants had not preferred an appeal in the first instance before the Superior Court of Appeal. However, while disposing of the appeal, the Division Bench made the following observation :-

(2.) The second, third and fourth defendants and the legal representatives of the first defendant preferred A.S. No. 569 of 1975 to this Court and the learned Judge who heard the appeal allowed the same, set aside the judgement and decree of the lower Court and dismissed the suit by his judgement dt. 23rd July, 1979. The learned Judge was of the view that the present suit was not maintainable in view of the dismissal of the Special Appeal No. 702 of 1967. The learned Judge was also of the view that the suit is barred by limitation. It is against this judgement, the plaintiff has filed this present L.P. Appeal.

(3.) It was contended by the learned counsel for the appellant that though originally the 6th defendant represented the plaintiff in Affair No. 289 of 1963, during pendency of the suit, she withdrew from the guardianship and no fresh guardian was appointed to represent the interest of the plaintiff and that therefore, the decree obtained against a minor who was not properly represents, shall be deemed to be null and void. At the time when Affair No. 289 of 1963 was filed, the plaintiff herein was a minor and she was represented by the 6th defendant is not in dispute. However, there is a doubt as to when the 6th defendant withdrew from the guardianship and whether the suit was conducted with the minor without a properly appointed guardian. The English translation of the French judgement in Affair No. 289 of 1963, is not very clear as to when the 6th defendant was removed from the guardianship. It is seen from that judgement that the minor represented by the guardian was appearing through counsel and in the written statement it was contended 'Keep out of the present suit the lady Bailvunby alias Zograby and order all the contesting and agreeing parties to costs with distraction in favour of the undersigned counsel as offered by law.' It is not clear as to what exactly is made by this passage. Again in the main part of the judgement of the Court it is stated "whereas the fourth defendant Bailvunby alias Zograby concludes to be set aside as she is no legal guardian to the minor Rahmat Bi alias Rahamathunnissa that neither the plaintiff nor the other defendants stand against that step it is necessary to abide by it." Here again there is some controversy as to the translation. It is stated that the words 'to be set aside' is to be read as 'to keep out' and the words 'stand against' is to be read as 'objecting'. But whatever it may be, ultimately, the operative portion of the judgement stated 'Exonerate from the suit the lady Bailvanby alias Zograby. Therefore, if at all it should be taken that it is at the time of judgement she was permitted to keep out of the suit and the minor was allowed to remain as a party to the suit without any representation. In the grounds of appeal preferred in Special Appeal No. 702 of 1967, it was stated that during the course of the suit, the guardian of the minor 4th defendant withdrew from the proceedings and the suit went to trial with the fourth defendant unrepresented and that the guardian was struck off though the suit itself was decreed as against all the defendants. It was further stated that the first defendant who is the 5th defendant in this suit was in charge of conduct of the litigation for the defendants and for reasons best known to him, he was not different. Though this point was specifically mentioned therein and if true the validity of the judgement itself was open to question, the learned Judges did not go into the same; but however dismissed the appeal holding that the appeal itself was not maintainable without of first filing an appeal before the first appellate authority at Pondicherry. It may also be mentioned that the cause title in Special Appeal No. 702 of 1967 showed the plaintiff as a major at the time when the appeal was filed. The learned single Judge though proceeded on the basis that the plaintiff was not represented properly after defendant 17 withdrew from the guardianship, proceeded on the assumption that the plaintiff attained the age of majority during trial of the suit itself and though she also figured as an appellant, did not question the validity of that judgement in the Special Appeal No. 702 of 1967, as null and void and that therefore, the judgement in the special appeal barred the maintainability of the present suit. We have spent a lot of time in trying to find out whether the plaintiff was a minor on the date when the judgement in Affair No. 289 of 1963 was delivered and whether she was properly represented in the suit. We are of the view that better evidence I could have been produced by letting in oral evidence as to what happended especially when the translation of the French judgement does not in any way help us in coming to a definite conclusion. However, we still proceed on the assumption that when the suit was filed she was a minor but represented by her guardian, but during the pendency of the suit, the guardian withdrew from the guardianship and that therefore, the minor continued as a minor without proper representation in the suit. In this connection, we are also unable in agree with both the trial Court as also the learned single Judge that the minor was not a party at all. She was a party properly represented when the suit was instituted and continued also as a party though at a later stage she was not properly represented. If that were the position, there could be no doubt that the decree obtained against the minor without appointing a proper guardian is not valid in so far as the minor is concerned. The decree as against the other major parties, of course will remain. Therefore, the plaintiff is entitled to a decree setting aside the decree in Affair No. 289 of 1963, in so far as her one-fourth share in the suit house is concerned.