P L D 1954 (PLP)

SHAHABUDDIN, C. J.

This second appeal arises out of a. suit for setting aside the decree passed in Mortgage Suit No. 12 of 1937 of the 3rd Subordinate Jude's Court of Chittagong, and the sale held in execution of that decree in respect of the properties concerned in the said suit. The said mortgage suit was brought by the 1st appellant, the mortgagee. The mortgage had been executed by Adinath, father of the minor Ist respondent and Adinath's brothers, Banga and Baikunta. The 1st respondent and his father were living in Rangoon. Banga was not settled in any one place and Baikunta was living in Chittagong District. These three brothers had borrowed a sum of Rs. 1,500 on the mortgage which they executed on 2nd September 1921. There were certain payments made which had the effect of extending the time for bringing an action on the mortgage and Adinath had for the purpose of making these payments executed a power of attorney in favour of Baikunta. Adinath died on the 9th August 1934, and prior to his death, on the 1st appellant demanding payment he wrote a letter to him pleading for. time, and although this letter was written from Rangoon, the 1st appellant, when he brought this suit after the death of Adinath on the 17th March, 1937, described the 1st respondent, the minor son of Adinath, as in joint mess and residing with Baikunta at Kattali in Chittagong District. The result was that notices for appointment of guardian were sent only to Baikunta who appeared and consented to be the guardian, but subsequently when the summons of the suit were taken to Baikunta he did not receive them and they were served by affixture. He did not contest the suit, which was decreed ex carte, and in execution the hypotheca was brought to sale and purchased by the mortgagee the last appellant. This sale was held on the 10th of November 1937. In February 1942, the 1st respondent and his mother came to Kattali from Rangoon, and the suit under appeal was filed on the 24th of August 1944, for setting aside the decree in the mortgage suit so far as the first respondent was concerned, on the ground that the appointment of Baikunta as his guardian was obtained by the plaintiff' in mortgage suit, i.e., the 1st appellant, by practising fraud on Court. It was also alleged that owing to this fraud, it was not till July 1944, that she knew of the decree and the sale in execution of the decree. Soon after this suit was filed, the 1st defendant sold the property to the 3rd defendant. As Banga did not join the 1st respondent in filing the suit he was impleaded as the second defendant. The suit, however was contested only by defendants Nos. 1 and

3. The 2nd defendant did not file a written statement, and he died during the pendency of the suit and his heirs brought on record. The defence was that the statement in the plaint that the minor son of Adinath was in joint mess with Baikunta was a statement as all the brothers were in joint mess, and that there was no suppression of summons or fraud either in the conduct of the suit or of the sale in execution. The Subordinate judge accepted the version of the 1st respondent-plaintiff and came to the conclusion that the 1st appellant fradulently sup pressed the information that the minor 1st respondent was living in Rangoon with his mother and not with Baikunta. He also held that, had this fraud not been practised, the mother of the Ist respondent-plaintiff would have saved her son's share in the property, and that therefore the order appointing Baikunta as guardian, which resulted from fraud practised by the 1st appellant in the mortgage suit, caused prejudice to the minor. The 3rd defendant's contention was that he was a bona fide purchaser for value without notice. This was rejected by the Subordinate Judge. He, therefore, decreed the suit by setting aside the entire mortgage decree and the mortgage execution sale. On appeal, the learned District judge did not interfere, although he did not accept the conclusion of the lower Court that the action of the 1st appellant in the mortgage suit was entirely fraudulent. He held that he saw no reason to find that Baikunta was a creature of the first defendant or that the latter had reason to expect that Baikunta would act as his tool. He was also of the opinion that Baikunta's interest was not adverse to that of the minor. It may be stated here that the learned Subordinate judge's finding was that Baikunta's interest was adverse to that of the minor, 1st respondent-plaintiff. The learned District judge observed as follows It seems to me that having waited for about 16 years Prasanna (1st appellant) was not willing to waste any more time or to take any more trouble and wrongly described Sadhan as living in joint mess and under the guardianship of Baikunta with the palpable intention of simplifying the procedure of trial . Earlier in the judgment, he pointed out that the 1st appellant had been very considerate towards the mortgagors by claiming interest at 4 per cent. while the contract rate was 371 per cent. and by having waited for over 16 years for filing the suit. These observations would lead one to think that the learned judge was not convinced that the 1st appellant acted fraudulently, but ultimately he came to the conclusion that the circumstances so far discussed by him did make out a case of fraud. He, however, did not record a definite finding on the question whether. as a result of the appointment of Baikunta as guardian the minor 1st respondent was prejudiced. As has been stated already, the learned Subordinate judge was definite that prejudice was caused thereby. But the learned District Judge did not deal with that question directly although he observed that Baikunta was not a creature of Prasanna. It is, however, clear that the Courts below proceeded on the assumption that, if fraud was practised in the appointment of the guardian of the minor the decree should on that ground alone, be set aside. The learned Advocate for the appellants contends that this view of the Courts below is not correct. According to him, the order appointing Baikunta can, at the worst, be regarded as an irregular order, as notice to the mother-the natural guardian, as not issued, though such a notice was required under Order 32, rule 3, sub-rule 4 of the C. P. C. The learned Advocate for the appellants also contends that there was no fraud, and that the statement in the plaint that the minor was in joint mess with Baikunta cannot be regarded as a deliberately false statement, inas much as the entire family was a joint family. He, however, argues that even if it is assumed that that statement was fraudulent, what resulted therefrom was only an irregularity in the appointment of a guardian and that being so, the decree in the mortgage suit cannot be considered to be a nullity. In support of this con tention, he relies on the decision of the Madras High Court in Gangaraju v. Satyanarayana (A I R 1931 Mad. 674.). The learned Advocate for the respondents, on the other hand, contends that it has to be taken that the minor was not represented at all, and that therefore it was rightly held that the decree would not bind him. He justifies the setting aside of the entire decree and sale on the ground that the mortgage is indivisible, and all the mortgagors were not brought on record. It may be stated at the outset that there can be no doubt that the 1st appellant did make an incorrect statement in the plaint ; but there is the clear finding of the first appellate Court that this was done not with a view to gain any undue advantage over the minor but only to avoid inconvenience and trouble in following the procedure of issuing notices. Having regard to the facts of the case placed before us, we consider this finding to be quite correct. The minor was a resident at Rangoon, and it is quite probable that the 1st appellant felt that to issue notices to him was only a formality in view of the fact that Baikunta had already been given a power of attorney by the father of the minor and that he was practically looking after the properties of the family in Chittagong. There is also the finding of the District judge that the 1st appellant had no reason to expect Baikunta to act against the interests of the minor. The learned Advocate for the respondent has stressed the fact that Baikunta did not contest the suit. The contention is that this very circumstance proves that Baikunta acted adversely to the interest of the minor. We are not impressed by this argument, for Baikunta himself had as much interest in the property as the minor and he did not contest the suit even in respect of his own share. Obviously there was no prospect of making the necessary payment ; the mortgagee had already waited for over 16 years, the mortgage having been executed in 1921. In these circumstances, the contention of the learned Advocate for the appellants, that it has not been established that what was done by the 1st appellant amounts to fraud because the intention to cause injury is not proved, is not altogether without force. But, even if it is assumed that the action of the 1st appellant in not mentioning in the plaint that the minor was living with his mother at Rangoon was fraudulent, we consider that the decree on that account alone cannot be set aside. In A I R 1931 Mad. 674 (supra); the plaintiff in a suit which he brought against, his brothers, one of whom was a minor, first proposed the eldest brother as the guardian and on his refusal to act as such proposed the mother to act as guardian. The mother represented that she was not willing as the minor was living at that time with his sister. The plaintiff thereupon made an application suppressing the statement made by the mother about the minor living with his sister, and suggesting on the other hand, the appointment of a .Court guardian. When the decree was passed a suit was brought by the minor for setting it aside. It was found by the 'High Court that the omission of the plaintiff in not suggesting the sister as guardian was not bona fide, but the learned judge declined to regard the decree in the suit concerned as a nullity on that ground alone. On the other hand, he proceeded to deal with the question thus The next question is, should the decree be held ispo facto to be nullifies ..There are two well-known categories in relation to this matter, (1) where no guardian was appointed for a minor, or where a disqualified person was appointed as guardian, the result is as if the minor was not represented and the decree must be regarded as a nullity ; (2) where a guardian and that a qualified person, was appointed, but where there was some irregularity in the proceedings, or where, on account of the fraud of the opposite party, appointment of one person was obtained instead of another who would have conducted the case better on behalf of the minor, the decree is not a nullity. One has to see whether the irregularity has prejudiced the minor. It may be that in spite of the irregularity or fraud the result was the same as if he had been most efficiently represented. If so, the Court would not set aside the decree. But if the Court finds that the irregularity or fraud has prejudiced the minor, the Court will give appropriate relief . The learned Judge, after discussing the decisions cited before him, went into the question whether the purchase in that particular case had been caused by the irregularity in the appointment of the guardian of the minor. With regard to this decision, the learned Advocate for the respondents drew our attention to an earlier decision of the same High Court in Ririchand alias Ramanunni Kurup v. Vayisravanth Manakhal Raman.( A I R 1923 Mad. 553) where, while holding that a mere irregularity in the appointment of a guardian will not vitiate the proceeding, the learned judges took the view that, if the irregularity resulted from fraud practised by the plaintiff, the appointment was of no legal effect ; but this decision has been referred to in A I R 1931 Mad. (supra) case in the following words : "In Ririchand v. Manakhal Raman SomayajiPad (supra) Krishnan, J., and myself held that the result of the plaintiffs fraud was as if the minor was not represented at all. It seems to me that the legal effect of a fraudulent appointment of a guardian is not quite accurately stated there". The learned Judge who decided the case in A I R 1931 Mad. 674 (supra) Ramesam, J., was a party to the decision in A I R 1923 (supra) case. We have been through these two decisions, and we agree with the view expressed in the passage quoted from A I .R 1931 Mad: 674 (supra). Applying this test to the facts of this case, we find that the decree in the mortgage suit cannot be set aside unless it is established that, by the appointment of Baikunta, prejudice was caused to the minor plaintiff. It cannot be said that there was no guardian appointed for him, nor can it be said that the person appointed, via., Baikunta was a disqualified person. As a matter of fact, having regard to the circumstances of the case it is quite probable that the Court would have appointed him as the guardian, even if it was informed of the fact that the minor was living with his mother at Rangoon. Baikunta was the eldest member of the family, he had been given the power of attorney by the father of the minor plaintiff, and he had looked after the family property, and as has already been pointed out, there is no reason to think that he had any motive to act adversely to the interest of the minor. Therefore, this case does not come within the first category mentioned in the observation quoted from A I R 1931 Mad. 674 (supra). I t falls in the second category, but, as stated above before the plaintiff can succeed, he should establish that he has been prejudiced by the appointment of Baikunta as his guardian. As we have point d out already, though the Subordinate Judge recorded a finding on the question of prejudice, the learned District Judge did not deal with it. The learned Advocate for the respondents contends that, had the mother been appointed as the guardian, or, had she known that a suit was being filed or a sale was being held, she would have saved the property, but, in the absence of a definite finding to that effect, we cannot take a decision on this point. As the evidence on record has not been printed, and as the Courts below have not approached the case from the correct point of view, we think, we have to remand this appeal to the lower appellate Court for a fresh decision from the point of view we have expressed above. We, therefore, set aside the decree of the lower appellate Court and remand the case for decision according to law in the light of the observations made above. The question, whether prejudice has been caused by the appointment of Baikunta as guardian will be decided on the evidence already on record. The parties will not be at liberty to adduce fresh evidence, but they can put forth their arguments before the lower appellate Court. AS this is a matter of 1946, the lower appellate Court will deal with it expeditiously. The cost of this appeal shall abide the result. ELLIS, J.-I agree. A. H Case remanded.