MAHESH CHANDRA BAYAN Vs. MANINDRA NATH DAS

JUDGEMENT

(1.) This appeal is on behalf of defendant 1 and it arises out of a suit commenced by three minor plaintiffs through their maternal uncle as next friend to establish their title to the property in suit on setting aside an ex parte decree, which was obtained by defendant 1 in a suit, to which the plaintiffs along with other persons were impleaded as parties defendants. Defendant 1, Mahesh Chandra Bayan, and the pro forma defendant 4, Pitambar Das, are the two surviving brothers of Gopi Nath Das, the father of the plaintiffs. The plaintiffs case is that the three brothers lived separately and had independent sources of income and that the disputed property belonged exclusively to Gopi Nath being purchased by him with his own money and the other two brothers had no right to, or interest in the same. Gopi Nath died in 1930.

(2.) In 1934, a creditor of Gopi Nath obtained a decree against him and attached the property in suit in execution of his decree. Mahesh, defendant 1, preferred a claim setting up his right to one-third share of the property. His claim was rejected. Thereupon he filed a suit, being suit No. 934 of 1934, for establishing his title to one-third share of the property, making the plaintiffs and Pitambar parties to the suit. The plaintiffs were represented in that suit by their mother as natural guardian. The natural guardian entered appearance and filed a written statement on behalf of the infants, resisting the claim of Mahesh to any share of the property and asserting the exclusive title of the infants to the whole property. It appears from the records of that suit that this written statement was filed on 6 August 1934 and on 20th August following, issues were framed. On 4 September 1934, the mother applied for the examination of herself as well as of another witness on commission and that prayer was granted. The witnesses however were not eventually examined and a few days later the mother made an application stating that she was unable to conduct the suit on behalf of the infants and prayed that she might be discharged from guardianship and that another guardian might be appointed in her place. This application was rejected by the Court and thereupon she abandoned all contest and the minors practically remained unrepresented in the further proceedings of the suit which culminated in an ex parte decree in favour of Mahesh declaring his one-third share in the property in suit. On the strength of this decree, it is said, a creditor of Mahesh who was made defendant 2 in this suit attached his one-third share of the property and likewise defendant 3, a creditor of Pitambar, also attached his one-third share in the same. The plaintiffs case is that neither Mahesh nor Pitamber has any interest in the property and the ex parte decree which was passed in the previous suit was not binding on them. Pitamber, who was made defendant 4, did not contest the suit and it was contested by defendant 1 alone. The case of defendant 1 was that the minors were properly represented in the previous suit and the decree in that suit operated as res judicata and a bar to the present litigation.

(3.) The trial Court dismissed the suit holding that the mother of the infants having been formally appointed a guardian ad litem by the Court, represented the minor plaintiffs effectively and that as she had a brother who was a pleader of that Court, under whose advice she acted she must be deemed to have acted bona fide and not negligently when she gave up contesting the suit. On the merits, however, the learned Munsif found that the property in dispute belonged exclusively to Gopinath and Mahesh and Pitambar had no interest in it. There was an appeal taken against this decision to the Court of appeal below and the special subordinate Judge, who heard the appeal, reversed the decision of the trial Court and decreed the suit. In the opinion of the learned special subordinate Judge, the Court in the previous suit ought to have appointed another person as guardian for the infants when the mother refused to act further in that capacity, and though technically the minors were not unrepresented, the Judge held that it was gross negligence on the part of the mother not to contest the suit by adducing evidence at the time of the trial. On the merits, the special subordinate Judge agreed with the trial Court in holding that the property belonged solely to Gopinath. It is against this decision that the present second appeal has been preferred.