RAMKHELAWAN SINGH Vs. GANGA PROSAD

JUDGEMENT

(1.) The petitioner is the defendant in money suit. At the time of its institution, he was a minor and his mother was appointed as guardian ad litem. She appeared and acted as such and filed a written statement on his behalf. When the suit was nearly ready for hearing, the defendant attained majority and informed the Court of the fact. The Court permitted him to appear and defend the suit as major. He then tendered a fresh written statement on February 3,1937, apparently intended to supersede the written statement filed by his guardian as far back as January 3, 1936. The Court declined to accept this written statement at that late stage. About six: weeks later the defendant followed it up with a petition asserting that the previous written statement was a forgery got up by dismissed servants of the defendant. The Court rejected this version thinking that if it had been the fact the defendant would have disclosed it at the time of filing his fresh written statement.

(2.) In revision it is contended that a minor defendant on attaining majority is entitled as of right to amend any pleading that may have been put in on his behalf. Mr. Mahabir Prasad for the petitioner has referred to Order XXXII, Rules 12-14, Civil Procedure Code, and pointed out that a plaintiff or applicant, on attaining majority, is given by the statute an option to abandon the suit or to proceed with it, and he says it would be anomalous if some similar liberty to ratify or to repudiate the act of his guardian on his behalf were not given to a defendant. Now it is not difficult to think of reasons why the plaintiff suing through a next friend is put in a different position from a defendant against whom a suit is brought through a guardian ad litem. The next friend of a minor plaintiff, unless he happens to be a certificated guardian under the Guardians and Wards Act or the Court of Wards Act, takes upon himself the responsibility of instituting a suit in the name and for the benefit of the minor. But a guardian ad litem for a minor defendant is a person appointed to act as such by the Court. Therefore, Mr. Mahabir Prasad's argument of the supposed anomaly does not impress me.

(3.) Then reference was made to English cases and text books. But what is there said has reference to a different procedure from that followed in India. In England, it is an established rule that an infant is not bound by decree of a Court of Equity but must have a reasonable time after he comes of age to show cause against it : Effingham V/s. Napier (1727) 4 Bro. PC 340 : 2 ER 230. The procedure appears to be based on the legal fiction that a decree obtained against a minor is a decree obtained against an absent person. Therefore, when he is capable of appearing and pleading His own cause, he is to be given an opportunity of moving to have the decree set aside and the case re-heard. In conformity with this rule it was held in Kelsall V/s. Kelsall (1831) 2 My. & K 409 : 39 ER 1000 that where a decree has been made against an infant defendant, the general rule is that such defendant on coming of age has the privilege of putting in a new answer stating a different case and going into evidence in support of that case. The Lord Chancellor found this privilege to exist on the basis of old practice and precedent. The Lord Chancellor said: I know it to be the opinion of some eminent practitioners that the right does not exist, and that they have been in the habit of advising parties appearing for infants to proceed as if no such privilege existed. It may further be safely said that, if it does exist, no privilege can be more fit to be taken away; for it is at once hurtful to others and in the majority of cases would prove, if resorted to, injurious to the infants themselves.