NANA NAMDEO PATIL Vs. DALPAT SUPADU PATIL

JUDGEMENT

(1.) THE plaintiff's father Supadu had passed two promissory notes in favour of defendant No.1 in 1919, one for Rs. 500 and the other for Rs. 200. After Supadu's death in 1920, his brother Shenfadu passed a promissory note for Rs. 800 in favour of defendant No.1 in 1922 in satisfaction of Supadu's promissory notes. In renewal of that promissory note the plaintiff's mother Zumkabai passed two promissory notes of Rs. 400 each in favour of defendant No.1 in 1924, In 1928 Zumkabai, acting as the guardian of her minor son, the plaintiff, and defendant No.1 referred the dispute regarding the promissory notes to arbitration, and the arbitrator gave his award on October 17, 1928. On the next day defendant No.1 presented the award in Court to have it filed. His application to have the award filed was registered as suit No.846 of 1928. On the same day the plaintiffs mother Zumkabai appeared in Court and gave her consent to the award being filed. A decree was accordingly passed in terms of the award. THE present suit was filed by the plaintiff's maternal uncle, acting as his next friend, for a declaration that the decree in suit No.846 of 1928 was not binding on the minor plaintiff on the grounds that there was no legal necessity for the original debt, that no previous sanction of the Court was obtained by the plaintiff's mother Zumkabai before giving her consent to the filing of the award and that the minor's interests were not properly safeguarded owing to gross negligence on the part of the minor's mother. Defendant No.1 contended that the suit was not maintainable in its present form, that the minor's maternal uncle was not his proper guardian to file the suit and that no previous sanction of the Court was required to be taken by the minor's mother Zumkabai before giving her consent to the filing of the award. THE trial Court upheld these contentions and dismissed the suit. In appeal the learned District Judge, relying upon the ruling in Mahadev Balkrishna Kelkar v. Krishnabai (1896) P. J. 609, held that the plaintiff's mother was bound to take the sanction of the Court under Order XXXII, Rule 7, of the Civil Procedure Code, before giving her consent to the filing of the award, and allowed the appeal. He declared that the decree in suit No.846 of 1928 was not binding on the plaintiff and issued an injunction restraining defendant No.1 from executing the decree against the plaintiff.

(2.) THE only grounds on which the decree against the minor plaintiff in suit No.846 of 1928 is sought to be set aside in this suit are the want of sanction of the Court to the consent given by the minor's mother to the filing of the award and her alleged gross negligence in protecting the minor's interests. It is not alleged in the plaint that the minor's mother acted fraudulently either in referring the dispute to the arbitrator or in giving her consent to the award. It is now well established by the ruling of the full bench in Krishnadas v. Vithoba (1938) 41 Bom. L. R. 59, F. B. that mere gross negligence, apart from fraud or collusion on the part of the next friend or guardian ad litem of a minor litigant, does not afford the basis of a suit to set aside a decree against him. All that is alleged against the minor's mother in the plaint is that she was grossly negligent. In the absence of any allegation of her fraud or her collusion with defendant No.1, the award decree cannot be set aside even if it be assumed that she was grossly negligent and did not guard the minor's interests properly.