RADHE SHYAM Vs. FIRM GOPAL RAI - PHOOL CHAND

JUDGEMENT

(1.) This is an appeal from an order of remand and arises from a suit brought by the plaintiffs appellants for setting aside a decree obtained by defendant 1 against defendant 2 and the plaintiffs, who were minors and were represented in that litigation by defendant 2. To appreciate the position of the parties and the decisions of the two Courts below, the following facts have to be considered. Defendant 1 is a firm styled Gopal Rai Phool Chand, carrying on business at Ghazipur. Defendant 2, Raghunandan Prasad, carried on business in Zamaniah in the Ghazipur District in the name of Chhannu Lal Raghunandan Prasad. Chhannu Lal was the brother of Raghunandan Prasad and had died sometime before the transactions began, leaving several minor sons, who are plaintiffs in the present suit. One of these sons, Radhey Shyam, has since attained majority and is suing for himself and as guardian of his minor brothers. Raghunandan Prasad used to make purchases from the firm Gopal Rai Phool Chand of cloth which he sold at his own shop in Zamaniah. He made such purchases between the dates 14 April 1919 and 2 August, 1920 which was the last date on which any transaction was entered into between the two. The balance due to the creditor firm on that date was Rs. 473-9-0. No payment was made afterwards, and the balance remained constant in the years 1921 to 1923, except for the addition of Rs. 170-7-0 as interest shown in the account, of the creditor firm. On 22 September, 1923 Raghunandan Prasad signed an acknowledgment of liability in the account books of defendant 1 for the sum of Rs. 644, which was made up of Rs. 473-9-0 principal and Rs. 170-7-0 interest. Defendant 1 instituted suit No. 628 of 1926 for recovery of the aforesaid amount with interest from the date of the acknowledgment, impleading Raghunandan Prasad and his minor nephews (the present plaintiffs). Raghunandan Prasad was appointed guardian ad litem of his nephews. No notice of the nature required by Order 32, Rule 3(4), Civil P.C., to the mother of the minor defendants or to the minor defendants themselves, one of whom was of 10 years of age, was sent. The case was fixed for 24 November 1926. A few days before the date fixed Raghunandan Prasad filed, on 17 November 1926, a compromise admitting the claim on behalf of himself and his minor nephews. Accordingly a decree was passed against all the defendants, including the minors. Subsequently, Raghunandan Prasad was adjudged insolvent, and probably the decree was sought to be executed against the minors, who then were advised to institute the suit which has given rise to this appeal for setting aside the decree passed in suit No. 628 of 1926.

(2.) It is alleged in the plaint in the present case that the plaintiffs were separate from their uncle, defendant 1, that the business carried on by him was his personal affair in which they had no interest, that the liability incurred by Raghunandan Prasad on 22 September, 1923, when he signed the acknowledgment, could have no reference to them, who were not bound to pay for the purchases previously made by him, that the claim of defendant 1 had become barred by limitation by 22 September, 1923, when the acknowledgment was made, that in any case, they were not on that date bound to pay to defendant 1 (the plaintiff in the earlier suit), that in the suit which was instituted by him (No. 628 of 1926) Raghunandan Prasad, whose interest in relation to the subject matter of the suit was adverse to that of the plaintiffs, was improperly appointed as their guardian, that no notice of the contemplated appointment of defendant 2 as the plaintiffs guardian was sent to their mother who alone was fit and proper person to act as their guardian, and that the defendant did not protect their interests and quite improperly admitted the claim of the plaintiffs of that suit, suffering a decree to be passed against them as well as himself. It is alleged that the decree obtained by defendant 1 in the circumstances stated above was the result of a fit and proper person not having been appointed as the plaintiffs guardian - a fact which seriously prejudiced them. The relief claimed in the plaint is that the decree passed in Suit No. 628 of 1926 be declared to be void and ineffectual as against the plaintiffs.

(3.) The defence was that the plaintiffs were properly represented in Suit No. 628 of 1926, that the firm Ghhannu Lai Raghunandan Prasad was an ancestral joint family concern in which the plaintiffs were interested, that whatever liability had been incurred by Raghunandan Prasad was and incurred on behalf of the joint family, that the plaintiffs were bound by the acknowledgment made by Raghunandan Prasad on 22 September, 1923 and that the claim of defendant 1 in the afore, said suit was such as should have been reasonably admitted. It is also alleged that the interest of Raghunandan Prasad was in no way adverse to that of the plaintiffs, that there was no irregularity in his appointment as guardian and that, in all the circumstances of the case, he alone was a fit and proper person to be appointed as guardian of his minor nephews. Defendant 2 did not enter appearance and did not contest the suit. The Munsif held that Raghunandan Prasad was not a fit and proper person to be appointed as guardian of his minor nephews and that the minors were seriously prejudiced by his appointment as guardian ad litem. In arriving at that conclusion, he seems to have emphasized the bar of limitation alleged by the plaintiffs. He held that the last of the transactions in respect of which the creditor firm was entitled to Rs. 473-9-0 having taken place more than three years before the acknowledgment of 23rd September 1923, their claim had become barred by limitation. Accordingly the Munsif argued that Raghunandan Prasad, who was responsible for the acknowledgment and who could not repudiate his own action, did not take the plea of limitation as the plaintiffs guardian. In this way, according to him, the plaintiffs were prejudiced by the improper appointment of Raghunandan Prasad as the guardian ad litem of the, plaintiffs in suit No. 628 of 1926. In the result the Munsif decreed the suit, declaring that the decree in suit No. 628 of 1926 was null and void against the plaintiffs.