MAHABIR PRASAD Vs. SAWAI CHAND

JUDGEMENT

(1.) THIS is a second appeal by the plaintiff in a suit for recovery of money.

(2.) ACCORDING to the allegations in the plaint, one Mst. Nanuri, widow of Govinda, executed a khata on 28-7-1941, lor Rs. 353/- in favour of Lalchand, and his son ram Chander. Ramchnder by himself and two minors Mahavir and Prahlad, sons of rameshwar, under the guardianship of Ramchandra, instituted a suit for recovery of Rs. 480/-, which included the principal and interest on the khata executed by nanuri, on 27-7-1944, in the Court of Civil Judge, Kotputli, against Sultan, chandar and Bhawani as legal representatives of Mst. Nanuri. The defendants in that suit denied execution of the khata by Nanuri, and further pleaded that they were not the lega1 representatives of Nanuri or of her husband govinda, and that the property in their possession had not come to them from Nanuri or her husband Govinda. It was also pleaded that they should not be held liable for the debt of Nanuri. The plaintiff's case then was that the original debt was outstanding against govinda, husband of Nanuri, and she had only renewed that debt by executing various khatas one after another till the last one, which was the basis of the suit. The Civil Judge dismissed the suit on the ground that the khata in dispute had not been proved to have been executed by Nanuri and that it had not been proved that the said khata was in lien of the debt of her husband Govinda. It was held that the defendants were in possession of the property of Govinda and were, therefore, his legal representatives. The suit was, however, dismissed. On appeal the Judicial Officer, Khetri, held that the khata had been proved to have been executed by Nanuri and although a document had been produced to show that Govinda had borrowed some amount from the plaintiff, yet the intermediary khatas or documents had not been produced to show that the khata executed by nanuri was in respect of the debts of Govinda. A request for an opportunity to produce the intermediary documents was rejected. On the other issue it was held that the defendants did not get any property from govinda, but the property in their possession had come to them from Kasu as his heir. The appeal was dismissed. The second appeal was also dismissed by the Raja sahib of Khetri on 14-8-1946, on a finding that the debt in dispute had not been proved to have been taken by Govinda. The further allegations in the present suit were that the aforesaid dismissal of the suit had been brought about by the gross negligence of Ramchandra who acted as the guardian of the minor Mahabir prasad, inasmuch as he did not produce the intermediary khatas to show that the last khata executed by Nanuri was only a renewal of the debt, which was taken by govinda. The plaintiff alleged thst he had come of age about a year ego, and, therefore, entitled to institute a fresh suit for recovery of the amount against Sultan, chandar and Bhawani, end his claim may be reheard and decided. Ramchan-der was made a pro forma defendant.

(3.) THE trial court held thst Ramchander, who acted for himself and as guardian for mahabir Prasad was not grossly negligent in not producing the intermediary khatas, and the previous suit had also been dismissed on the ground that the defendants were not reversioners of Nanuri or heirs of Govinda, and no facts have been shown for considering that finding in the previous suit to be erroneous. It accordingly dismissed the suit on 29th July, 1950. 3a. On appeal, the learned Additional District Judge was of opinion that a minor can always sue for challenging a decree or order which could not have been passed, but for wanton, wilful or inexcusable neglect on the part of the next friend. It was held that the minor on attaining majority can sue for setting aside such decree. He, however, held that the non-production of the intermediate khatas was not so gross negligence as to amount to a clear violation of the duty cast upon him. He also held that Ramchander himself was a plaintiff, and he was then acting as a manager of the joint Hindu family, and that in the case of a Hindu family where all have rights, it is impossible to allow each member of the family to litigate the same point over and over again, and each infant to wait till he becomes of age, and then bring an action or bring an action by his guardian before, and where the leading member of the family had been acting either on behalf of minors in their interest, or if they were majors, with the assent of the majors, all the members of the family were bound by the result of the litigation. He dismissed the appeal by judgment dated 20-8-1951. The plaintiff has come in second appeal.