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TMI Blog1927 (2) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... ors and guardians ad litem were assigned to each of them. Rani Satyarama was appointed the guardian ad litem of Ganganand and Achhutyanand the minor sons of Kumar Kamalanand and Babu Amrita Lal Mazumdar, a Pleader of the Darbhanga Court, was appointed the guardian ad litem of Abhayanand, Bijayanand and Ghanand, the minor sons of Kumar Kalikanand. 3. On the 11th December, 1916, Rani Satyarama presented a petition to the Court in seisin of the mortgage suit stating therein that Ganganand had attained majority and that she should be discharged from further acting as the guardian of Ganganand and Achhutyanand and that Ganganand should be appointed the guardian ad litem of Achhutyanand. The following order was recorded by the learned Subordinate Judge in the order sheet in regard to the petition of Rani Satyarama: Rani Satyarama guardian ad litem of minor defendants Nos. 5 and 6 files a petition staling that defendant No. 5 has attained majority and that defendant No. 5 should be appointed guardian of his brother the other minor defendant No. 6. The former fact is supported by an affidavit. ORDER 4. The defendant No. 5 be allowed to defend his case as major and to file wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t both Kamalanand and Kalikanand were men of reckless dispositions and dissolute habits and that the Maharaja, being well aware of these facts agreed to lend money to them knowing that he would thereby enable the said, Kumar Kamalanand and defendant second party to run in their career of immorality and extravagance. The plaintiffs go on to assert that, even if there was any consideration for the mortgage-bond, the same was not executed for any valid necessity or for the benefit of the family and, there were other good and valid defences to the mortgage suit; but that the Maharaja in collusion with Kumar Kalikanand caused various steps to be taken in the suit in the name of Rani Satyarama without any knowledge on her part and ultimately caused a compromise petition to be put in fraudulently without any reference either to plaintiff No. 1 or to the guardians ad litem of the other plaintiffs and induced the guardians ad litem to sign the petition of compromise without allowing them opportunity to consider whether the settlement was for the benefit of the minors. So far as this part of the case is concerned, the plaintiffs seek to avoid the consent decree on two grounds; first, on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther the order of the Court declaring Ganganand an adult operates as res judicata between the parties so as to bar the right of Ganganand in this suit to raise an issue as to whether he was a minor at the date of the consent decree. The learned Subordinate Judge has found that Ganganand was born on the 24th September, 1898. Although his finding is challenged before us on behalf of the respondent, and I shall have to deal with the arguments in the proper place, I may say at once that there is overwhelming evidence in support of the finding of the learned Subordinate Judge on this point. If the personal law by which Ganganand was governed had any operation in his cafe, he was undoubtedly an adult on the 24th September, 1916, but on the 9th July, 1910, Kumar Kalikanand had obtained an order from the District Judge of Purnea appointing him the guardian of the person of Ganganand. The appointment so made had the effect of prolonging the minority of Ganganand under the Indian Majority Act; and it is not open to doubt that he attained his majority only when he completed the age of twenty-one years, that is to say, on the 24th September, 1919. On the 11th December, 1916, Rani Satyarama, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no longer in force having regard to the fact that Ganganand had already attained his majority and she asked for a formal order striking out her name from the record of the suit as the guardian ad litem of Ganganand. The Court acceded to the application without serving any notice upon Ganganand; and seven days later, that is to say, on the 18th December, 1916, directed that a summons with a copy of plaint be served on defendant No. 5, that is Ganganand who is no longer a minor. Now in so far as the Court acted on the hypothesis that Ganganand had attained his majority, the order of the 11th December, 1916, was passed not only ex parte but without notice to Ganganand, since Ganganand did not become a party to the suit until summons was actually served on him. The learned Subordinate Judge himself took the view that Ganganand was not a party to the suit at the date of the order of the 11th December, 1916, since a week later he himself directed that summons should be served on Ganganand. In my opinion Ganganand was not a party to the order of the 11th December and is not bound by that order. Since on the hypothesis on which the learned Subordinate Judge acted Ganganand was not a pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urisdiction, but had acted illegally or with material irregularity. The Vakil appearing on behalf of the plaintiffs had no difficulty in showing that a separate suit lies where the previous decree is attacked on ground of fraud or collusion. As I read the judgment of the learned Subordinate Judge he did not accede to the argument put forward on behalf of the defendant but he thought that the suit was not maintainable because on an examination of the evidence he found that the allegations as to fraud and collusion were unfounded and that in regard to the question of minority Ganganand was guilty of fraudulent misrepresentation disentitling him to the reliefs claimed by him. His decision on this issue is, therefore, on merits. In this Court the argument has taken a, different form. For the purpose of his argument Mr. Sultan Ahmad has assumed, as he must, the truth of the allegations in the plaint; but he contends that on those allegations, although an application would lie in the mortgage suit itself to set, aside the compromise decree, a suit does not lie to set it aside. 16. Now on an examination of the allegations made in the plaint, it will appear that the plaintiffs are cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guardian of the minor in terms of Order XXXII, Rule 3(4) of the Code and if it also appeared that there was a distinct violation of the statutory provision contained in Order XXXII, Rule 4(3) of the Code in so far as a guardian was assigned to a minor without the consent of the guardian. It was held by this Court that where, on the face of the record a person qualified to act as the guardian, appears as a guardian of the minor for the suit, the Court has no power in another suit brought for the purpose of impeaching the validity of the decree, to examine the evidence in order to see whether notices under Order XXXII, Rule 3(4) were, in fact, served, or whether the person nominated as guardian did consent to act as guardian or whether the Court did expressly appoint such person as the guardian for the suit, unless it is shown that the defect in following the rules has affected the merit of the case. This Court proceeded to say: But where the record, on the face of it, shows, that the minor was not represented by a guardian for the suit, or was represented by a guardian disqualified, under the express provision of the Statute, from acting as guardian, the position is the same as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Order No. 120 to which the learned Subordinate Judge refers runs as follows: Petition of objection filed. Let 18th November next be fixed for hearing. Parties to be ready with their evidence on that day. The order does not show that any petition of objection was filed on behalf of Ganganand. The learned Subordinate Judge then says: But there is the evidence of Babu Jatindranath Ghosh, D.W. No. 22, that he had occasion to go to Calcutta in connection with the decree absolute proceedings to obtain instructions on behalf of his ward and when there he had met Kumar Ganganand and had some talk with him too. Therefore Kumar Ganganand was fully aware of the proceedings regarding the decree being made absolute. 20. Babu Jatindranath Ghosh was the guardian ad litem of the minor sons of Kumar Kalikanand. In his evidence he says that he had to go to Calcutta to take instructions from Kumar Kalikanand as to the defence to be filed on behalf of his minor sons. He proceeds to say as follows: I met Kumar Ganganand Singh and my wards. Kumar Ganganand introduced the wards to me. Khetra Babu, that is to say, Babu Khetrapado Bose who was the guardian ad litem of the younger brother of G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yanand Singh, 4. Kumar Ghananand (sic) Singh, minors, sons of Kumar Kalikanand Singh, through Babu Amrit Lal Mazumdar, guardian ad litem and afterwards Babu Jatindranath Ghosh, Pleader, appointed guardian ad litem as per order dated 17th July, 1920, and Babu Amrita Lall Mazumdar removed from the guardianship, 5. Kumar Ganganand Singh, major son of Kumar Kamalanand Singh, deceased, 6. Kumar Achhyutanand Singh, minor son of Kumar Kamalanand Singh, through Babu Kshetrapado Bose, guardian ad litem, by caste Brahman Maithil, by occupation Zemindars, inhabitants of Deorhi Srinagar, Pargana Haveli, District Purnea--Defendants 1st Party. 7. Babu Ramsumaran Prasad, son of Babu Madanmohan, deceased, by caste Agarwala Mahajan of M. Mahadeo Simaria alias Ulao, Pargana Malki, District Monghyr, 8. Raja Kalanand Singh, 9. Hon'ble Raja Kirtyanand Singh, sons of Raja Sulanandan Singh, deceased, by caste Brahman Maithil, by occupation Zemindar, inhabitants of Deohri Champaragar, District Purnea--Defendants 2nd Party. Claim for recovery of ₹ 6,66,787-12-6, principal with interest and compound interest due on the basis of a mortgage-bond dated 7th May, 1900, executed by defendant No. 1 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree would have recited the fact of the service of the notice on Ganganand. The decree does not purport to be a decree against Ganganand at all. There is certainly nothing in the record to show that Ganganand was a party to those proceedings. It is difficult to understand why it should be necessary for Ganganand to ask the Court to set aside a decree which was not passed against him either in his presence or ex parte. Had the question been raised in the written statement, it would have been open to the plaintiffs to ask the Court to amend the plaint by adding a prayer specifically directed against the final decree. The question is one of form rather than of substance; for it is not open to doubt that if the preliminary decree fails the final decree must of necessity fail; and for my own part I would unhesitatingly have passed an order for the amendment of the plaint if I thought that there was anything in the point. 25. For, there is a more serious answer to the argument. It is well-established that a final decree under Order XXXIV, Rule 5 is only necessary where there is a preliminary decree in existence under Order XXXIV, Rule 4 of the Code. Now, in my opinion, the consent decr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Kumar Kalikanand. The learned Subordinate Judge has considered the evidence bearing on this point with very great care and I entirely agree with his conclusion upon it. It is, in my opinion, idle to suggest that Kalikanand entered into a conspiracy with the Maharaja to defeat the interests of the minors. The interests of Kalikanand are identical with those of the plaintiffs and it is difficult to understand why he should have entered into a fraudulent conspiracy with the Maharaj to defeat his own interest. A suggestion has been put forward in this Court that there was a secret bargain between the Maharaja and Kalikanand and that Kalikanand was out to make a profit for himself at the cost of the minors. There is some amount of evidence that there were;negotiations between the Maharaja and Kalikanand for the purchase of some of the properties belonging to the joint family so that the entire debt due by the family to various creditors could be wiped off. I am satisfied on the evidence that there was no concluded agreement between the Maharaj and Kalikanand on this point and that if the negotiations ripened into a contract it would have benefited the minors as much as it would Kum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mise, but that he left the whole matter to Kalikanand as he was at the helm of the family affairs. He gays that he understood that it was part of the settlement between the parties that the Maharaja of Darbhanga would purchase part of the estate belonging to the family to enable Kalikanand to clear off the debts due by the family to various creditors and that it is this consideration which moved him to apply to the Court for permission to compromise the case on behalf of the minor whom he represented. But it is remarkable that he did not take the precaution of stating this important matter in his petition of compromise, although, according to him it was one of the terms of the consent decree that the Maharaja would purchase some of the properties belonging to the joint family in order to enable Kumar Kalikanand to pay off all the debts binding on the family. It comes to this, therefore, that he applied for permission to the Court to compromise the case on behalf of his ward in the belief that by such compromise all the debts of the family would be wiped off, so that the rest of the estate might be saved and the Srinagar Raj may start with a clean slate but without satisfying hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t his signature on the petition of compromise. In my opinion the plaintiffs other than Ganganand are not entitled to avoid the consent decree on any of the grounds argued on their behalf by Mr. C.C. Das. 29. I now come to the case of Ganganand which stands on a footing of its own. The learned Subordinate Judge has found that he was a minor at the date of, the consent decree, but that he is not entitled to any relief as there was a fraudulent misrepresentation on his part as to his age to the Maharaja which induced the Maharaja to enter into the settlement with him. The respondent does not accept the finding of the learned Subordinate Judge on the question as to the age of Ganganand, and the first question which I have to determine is--Was Ganganand a minor at the date of the consent decree? Now, in coming to the conclusion that Ganganand was a minor at the date of the consent decree, the learned Subordinate Judge has certainly relied on some evidence which was inadmissible as against the Maharaja. For instance, the learned Subordinate Judge has relied on various letters written by Kalikanand to Mr. Weatherall who was the Manager of the Srinagar Raj at one time containing stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter dated the 20th October, 1898, addressed by Kamalanand to Mr. Weatherall. The letter runs as follows: My dear Mr. Weatherall, Deorhi Srinagar. Dated 20, 10, 1898. Received ₹ 1,000. Harjiwan Ram arrived here safely. I have received (illeg.) last bill, as for your coming it will be better for you to come on Sunday as there will be wrestling of Surja on that day. The bungalow rooms are not fit for living and it can't be ready. You will be comfortable in katchery bungalow which will be ready for you. The namkaran will take place on Monday. If you can send some tents for yourself it will be quite good as all the tents and choldarys are occupied which come here. Please let me know on what day you all will come. More when we meet. I am Yours ever sincerely, Kamalanand Singha. 33. This letter is admissible in evidence as Kamalanand is now dead. Now, it will be noticed that the letter does not state whose namkaran ceremony was to take place on Monday. Mr. Weatherall was examined in this case on behalf of the Maharaja and a perusal of his evidence has satisfied me that he tried to help the Maharaja as much as he could. His evidence in the examination-in-chi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that entry also gives the date of birth of Ganganand as the 25th September, 1898. Nothing much turns upon Ex. 1 for it is obvious that it was taken from Ex 1(a) without further investigation. Then there is Ex. 14(a) which is the entry in the Calcutta Gazette of 1915 showing the age of Ganganand on the 1st of March, 1915 as 16 years 5 months when he passed the Entrance Examination of the Calcutta University. Then there are various other pieces of evidence in support of the conclusion of the learned Subordinate Judge. It is not necessary to deal with them in detail for I am satisfied that Ganganand has established conclusively that he was born on the 24th September, 1898. That being so he was undoubtedly a minor at the date of the consent decree inasmuch as the certificate of guardianship issued to Kalikanand had the effect of prolonging his minority by three years. 35. Now the important question arises whether Ganganand is entitled to any relief in this case. It is not open to doubt that a consent decree does not stand on a higher footing than a contract between the parties, and that the Court has jurisdiction to set aside a consent decree upon any ground which would invalid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a position to restore the parties to their original footing in all respects. In my opinion this is not a case like those upon which Mr. Sultan Ahmad relied where an infant obtained an advantage by falsely stating himself to be of full age and equity required him to restore his ill-gotten gains or to release the party deceived from obligations or acts in law induced by the fraud. Whether the cases upon which Mr. Sultan Ahmad relied have any application since the decision of the Court of Appeal in Leslie Ltd. v. Shiell (1914) 3 K.B. 607 : 83 L.J.K.B. 1145 : 111 L.T. 106 : 58 S.J. 453 : 30 T.L.R. 460 approved as it was by the Privy Council in Mahomed Syedol Ariffin v. Yeoh Ooi Gark 39 Ind. Cas. 401; (1916) 2 A.C. 575 : 21 C.W.N. 257 : (1917) M.W.N. 162 : 19 Bom. L.R. 157 : 86 L.J.P.C. 15 : 115 L.T. 564 : 32 T.L.R. 678 : 43 I.A. 256 (P.C.) it is not necessary for me to discuss for I am satisfied that this is not a case which would attract the operation of the equitable principles upon which Mr. Sultan Ahmad relied. 37. For, in my opinion, there is no evidence of any fraudulent misrepresentation in this case. Now, in the first place there is no plea of fraudulent misrepresentation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as he must have known that he had not attained his majority, such representations must be considered to be fraudulent misrepresentations within the meaning of the cases upon which Mr. Sultan Ahmad relied. Ganganand disputes the fact that he was ever served with summons and denies that he executed either of the vakalatnamas or signed the written statement alleged to have been filed on his behalf. The learned Subordinate Judge considered, the matter and found in favour of the Maharaja. On the question whether Ganganand was served with summons, I have no doubt that the conclusion at which the learned Subordinate Judge arrived is right. On the question whether he executed the vakalatnama and signed the written statement, 1 have some doubt whether the finding of the learned Subordinate Judge is correct; but on a prolonged consideration of the matter, I have come to the conclusion that I ought not to differ from the learned Subordinate Judge on a question of this nature. But all these acts, taken individually and collectively, did not amount to a representation that he was of age. There was certainly no express representation in any of them. But it was argued that if a person, who is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing results: Fraud is proved when it is shown that a false representation has been made (1) knowingly or (2) without belief in its truth or (3) recklessly, careless whether it be true or false . Lord Herschell proceeded to say as follows: Although I have treated the second and third as distinct cases, I think the third is but an instance of the second, for one who makes a statement under such circumstances can have no real belief in the truth of what he states. To prevent a false statement being fraudulent, there must, I think, always be an honest belief in its truth. And this probably covers the whole ground, for one who knowingly alleges that which is false, has obviously no such honest belief . It will appear then that proof of this absence of the actual and honest belief is necessary, but, on the other hand, is sufficient, to satisfy the requirements of the law. 43. The question then is, has the Maharaja established that there was an absence of the honest belief in the truth of the representation which I am assuming Ganganand made that he was of age when he executed the vakalatnamas in question and signed the written statement in the mortgage suit? 44. Now it must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spicion . Exhibit B 10 is the petition of Rani Satyarama dated the 14th November presented before the learned Subordinate Judge on the 11th December, 1916. The learned Subordinate Judge goes on to say as follows: The petitions were filed by Rani Satyarama because in her opinion Ganganand Singh having completed 18 years of age, had become a major and it was no more necessary for her to represent him. And in fact the date stated by her was the date on which Kumar Ganganand would have attained majority if Kumar Kalikanand had not been appointed his guardian by the District Judge of Purnea under the Guardians and Wards Act of 1890. The petition under consideration might, therefore, be a bona fide and honest expression of the Rani's opinion . I think the opinion of the learned Subordinate Judge recorded at page 215 of the paper-book is correct. When once it is realized that Ganganand was of age according to his personal law, but was a minor only by the application of the Indian Majority Act to him, it becomes impossible to say that he had no actual and honest belief in the truth of the representation which he is alleged to have made by signing the documents in question. I am of opi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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