Krishnamoorthy Iyer, J.@mdashThe plaintiff is the appellant and the appeal arises out of a suit filed for partition and recovery of possession of 1/3 share in the plaint B schedule properties. The facts as disclosed in the plaint can be stated thus. The plaintiff and defendants 1 to 4 are members of a Hindu family known as Bella family governed by the Hindu Mithakshara Law. The B schedule properties to the plaint belong to the joint family. The plaintiff and the second defendant are brothers being the sons of the 1st defendant who is their father and they constitute one branch, while defendants 3 and 4 constitute another branch. The joint family included a third branch consisting of the 5th defendant, his father Ramachandra Bhatta and the 6th defendant. The branch of Ramachandra Bhatta and defendants 5 and 6 got divided from the family prior to 1921. The properties comprised in plaint C schedule, Part I, belonged to the third branch. The 6th defendant and Ramachandra Bhatta executed Ex. B-2 mortgage with possession dated 15-11-1921 for Rs. 5000/- in favor of Bella Madhava Bhatta who was the manager of the joint family of the plaintiff and defendants 1 to 4 then. On the same day Madhava Bhatta executed Ex. A-5 sub-mortgage in favor of Ramanna Bhatta for Rs. 2000/-. The 8th defendant is the son of the sub-mortgagee Ramanna Bhatta. Bella Madhava Bhatta died on 10-5-1927. After his death, the manager of the joint family of the plaintiff and defendants 1 to 4 was Bella Rama Bhatta. The sub-mortgagee filed O.S. 333 of 1934 on the file of the District Munsiff''s Court, Kasaragod for recovery of the amount due under the sub-mortgage. Defendants 1 and 2 to the said suit are the mortgagors who executed Ex. B-2, the third defendant to the suit was Bella Rama Bhatta who was the then joint family manager of the plaintiff and defendants 1 to 4, defendants 4 to 7 to the said suit are the sons of Bella Madhava Bhatta, the 8th defendant to the said suit the present first defendant, the 9th defendant therein is Achutha Bhatta a brother of the present first defendant and the 10th defendant to the said suit is the present plaintiff who was then a minor, and he was represented by his father as guardian ad litem. Ex. B-3 is the preliminary decree dated 1-11-1935 passed in the suit directing the defendants to that suit to pay the sub-mortgage amount with all interest accrued due or before 1-3-1936 and in default authorizing the sub-mortgagee to apply for a final decree for the sale of the mortgaged property and if there is any balance due after the sale of the mortgage holding to apply for a personal decree against the assets of the deceased Bella Madhava Bhatta for the recovery of the balance. Since the amount decreed was not deposited the sub-mortgagee applied for a final decree for the sale of the mortgage holding. Ex. B-4 is the copy of the final decree passed on 9-1-1937, directing the sale of the hypotheca. Even before the institution of O.S. 334 of 1934 Bella Achutha Bhatta the brother of the first defendant filed O.S. 28 of 1933 on the file of the Subordinate Judge of South Canara on 11-3-1933 for partition and recovery of his share in the joint family properties. Ex. B-79 is the copy of the plaint in the suit. The disputes were compromised among the members of the joint family who filed the compromise petition R.I.A. 234 of 1936 in the said suit. A final decree Ex. A-2 was passed on 6-3-1936 decreeing the suit in terms of the compromise. By Ex. A-2 the joint family was divided into two branches. Defendants 2 to 5 in the said suit who are the members of the branch of Madhava Bhatta were allotted the B schedule properties in the compromise petition while the branch of the present 1st defendant consisting of himself, plaintiff and Achutha Bhatta was allotted the A schedule properties therein. The branch of the 1st defendant got possession of the A schedule items in the compromise petition under Ex. B-83 delivery receipt dated 27-7-1934.
2. In execution of Ex. B-4 the final decree in O.S. 334 of 1934 the mortgaged properties were sold in court auction in pursuance to R.E.P. 1178 of 1937. Ex. B-5 is the proclamation of sale. The properties in Ex. B-5 were sold in court auction in two lots, on 1-11-1939. Lot No. 1 was purchased by Narayana Bhatta and Ex B-6 is the sale certificate evidencing the same. Lot No. 2 was purchased by Puru shothama Bhatta and Ex. B-7 is the sale certificate evidencing the same. The rights under Ex. B-7 were assigned by Purushothama Bhatta to the 7th defendant by executing Ex. B-9 on 24-3-1941. Ex. B-6 and B-7 show that by the sale of the hypotheca the entire amount due to the sub-mortgagee under the decree was not realized. The sub-mortgagee therefore filed R.I. A. 888 of 1939 under Order 34, Rule 6, C.P. C. for a personal decree against the assets of the deceased Bella Madhava Bhatta in the hands of the respondents to that application for the recovery of the balance. The application was allowed by Ex. A-10 order dated 2-2-1940 and Ex. A-6 is the decree based on Ex. A-10. The sub-mortgagee in execution of Ex. A-6, filed R.E. P. 385 of 1940 for bringing to sale certain items of immovable properties as the assets of deceased Bella Madhava Bhatta for the realization of the balance due. Ex. B-12 is the proclamation of sale filed in R.E. P. 385 of 1940. Ex. A-12 is the order dated 8-4-1941 allowing R.E. P. 385 of 1940. The properties in Ex, B-12 were sold in two lots and they were purchased by the 7th defendant. Ex. B-13 the sale certificate shows that the court sale was on 20-3-1942 and it was confirmed on 28-5-1942. Even by the sale of the properties in Ex. B-13 the balance of the decree amount was not realized in full. The sub-mortgagee therefore filed R.E. P. No. 788 of 1943 in R.I. A. 888 of 1939 for bringing additional properties for sale as the properties of the deceased Bella Madhava Bhatta. The sale was held on 10-4-1944 and it was confirmed on 16-6-1944. The court auction purchaser was the 7th defendant. The properties under Ex. B-13 were delivered to the 7th defendant on 26-7-1942 evidenced by the delivery receipt Ex. B-15, while the properties in Ex. B-18 were delivered to him on 9-3-1947 evidenced by Ex. B-19 delivery receipt. It is agreed that all the properties included in the plaint B schedule are taken in by Ex. B-13 and B-18. The plaintiff''s prayer in the suit is for partition of the plaint B(1) schedule items and recovery of his l/3rd share after partition by metes and bounds in those items, after declaring that Ex. A-2 is not valid and binding to the extent it has provided for the discharge of the liability under Ex A-5 and after declaring that Ex A-10 and A-6 and the court sales evidenced by Ex. B-12 and B-18 are not valid and binding on the plaintiff and his interest in the plaint Schedule B (1) items.
3. Before the institution of the suit giving rise to this appeal the mother of the plaintiff acting as his next friend filed O.S. 11 of 1947 on the file of the Subordinate Judge''s Court of South Canara for the identical reliefs. That suit was dismissed on 28-10-1948. Ex. B-l is the copy of the judgment. There is also a prayer in the present suit to set aside Ex. B-l as well on the ground of negligence on the part of the next friend.
4. The suit was contested mainly by the 7th defendant. His contentions are that the Ex. A-2 and A-5 are valid and binding on the plaintiff, Ex. A-10, Ex. A-6 and the court sales evidenced by Exs. B-13 and B-18 are all binding on the plaintiff, the suit is barred by limitation and also by res judicata on account of A-10 and A-6 and the orders for sale passed in execution of the decree in O.S. 334 of 1934 and that the suit is barred by Section 47 of the Civil Procedure Code.
5. The learned Subordinate Judge took the view that the suit is not barred by Section 47 the C.P. C., or limitation or adverse possession. But he dismissed the suit holding that Ex. A-2 and Ex. A-5 are binding on the plaintiff, that Ex. B-l is not liable to be set aside, Ex. A-10 and A-6 are binding on the plaintiff and his interest in plaint B (1) schedule items and the court sales under Ex. B-13 and B-18 are valid and operative against the interest of the plaintiff in those items.
6. The question that arise for consideration in the appeal are: (1) Whether Ex. A-5 is binding on the Plaintiff and whether Ex. A-2 is liable to be reopened to any extent. (2) Whether Exs. A-10 and A-6 and the court sales evidenced by Ex. B-13 and B-18 are binding on the plaintiff and his interest in the plaint B-l schedule properties. (3) Whether the suit is barred by res judicata on account of Ex. A-2 and the several orders passed in execution of the decree in O.S. 333 of 1934. (4) Whether the plaintiff''s suit is barred by limitation, barred u/s 47 because of Ex. B-l.
7. The first question relates to the binding nature of Ex. A-2 regarding the liability of the joint family for the amount due under Ex. A-5. O.S. 28 of 1933 was instituted by Achutha Pai, who is the brother of the first defendant for partition of the joint family properties. The first defendant and the plaintiff were impleaded as defendants 6 and 7 there. The plaintiff was represented by his father as guardian. Ex. A-2 was the result of a compromise petition. The debt due under Ex. A-5 was treated as a joint family debt, and set apart to the branch of defendants 2 to 5 in Ex. A-2. It is seen that Ex. A-5 was executed for the purpose of discharging a portion of the liability under Ex. B-2. The benefit under Ex. B-2 was taken by the joint family and divided under Ex. A-2. It is therefore not possible for the plaintiff to contend that Ex. B-5 is not binding upon the joint family and to that extent therefore Ex. A-2 is vitiated. All the members of the joint family to the compromise petition have accepted the binding nature of Ex. A-5. There was also not any attempt before us by the learned counsel for the plaintiff to dispute the binding nature of Ex. A-2 on the plaintiff. Ex. A-2 is therefore valid and binding on the plaintiff.
8. The second and the third contention which can be considered together relate to the binding nature of Ex. A-12 and A-6 and the court sales evidenced by Ex. B-13 and B-18 on the plaintiff and his interest in the plaint B (1) schedule items, on the date of the filing of O.S. 334 of 1934 Bella Madhava Bhatta had died. O.S. 28 of 1933 was pending. Ex. B-3 is the preliminary decree in O.S. 334 of 1934 passed on 1-11-1935. Ex. B-4 is the final decree directing the sale of the hypotheca comprised in Ex. A-5. The validity of Ex. B-4 and B-3 was not questioned. Ex. B-6 and B-7 evidence the sale of the hypotheca in Ex. A-5 in court auction. The validity of the court sale evidenced by Ex. B-6 and B-7 was not challenged in the lower court and was not in dispute before us also. The application for personal decree against the assets of Bella Madhava Bhatta in the hands of the respondents thereto in R.I. A. 888 of 1939. Ex. A-10 is the order dated 2-2-1940 allowing R.I. A. 888 of 1939 and Ex. A-6 is the decree based upon Ex. A-10. Ex. A-5 sub mortgage was executed by Madhava Bhatta. As a mortgagor his assets are liable to be proceeded against for the balance of the mortgage amount due after the sale of the hypotheca. The direction therefore in Ex. A-10 and A-6 allowing the sub-mortgagee to realize the balance from out of the assets of Bella Madhava Bhatta cannot in any way be attacked by the plaintiff. But before leaving Ex. A-10 and A-6 it is necessary to note one fact. As already stated Bella Madhava Bhatta had died before the filing of O.S. 333 of 1934. It is agreed that after the death of Madhava Bhatta the manager of the joint family was Bella Rama Bhatta and he was the third defendant in Ex. B-3 suit. Though Bella Rama Bhatta was alive on the date of Ex. B-4, he died before the filing of R.I. A. 888 of 1939. It is seen from Ex. A-6 that Bella Purushothama Bhatta who is the present 1st defendant was a respondent to R.I. A. 888 of 1939 and he was impleaded in his capacity as the ejaman and adalthedar of his branch that is the branch consisting of himself and the plaintiff and the second defendant. From Ex. A-10 and A-6 it is seen that the contention that the application for personal decree against the assets of Bella Madhava Bhatta was barred by time was over-ruled. Subsequent to Ex. A-6 the sub-mortgagee filed R.E. P. 385 of 1940 and R.E. P. 788 of 1943 in R.I. A. 888 of 1939 for attachment and sale of the properties comprised in Ex. B-13 and B-18 on the ground that they are the assets of Bella Madhava Bhatta. The properties in Ex. B-13 were sold in court auction on 20-3-1942 while those in Ex. B-18 were sold on 10-4-1944. It is agreed by the learned counsel on both sides that all the properties comprised in plaint B (1) schedule are included in Ex. B-13 and B-18. These properties were sold with the first defendant on the party array. The plaintiff has no case that notices in execution of Ex. A-6 regarding the attachment and sale of the properties comprised in Ex. B-13 and B-18 were not served on the present 1st defendant. The first defendant did not raise any contention in execution of Ex. A-6 that plaint B (1) schedule items comprised in Ex. B-13 and B-18 are the joint family assets belonging to the branch of the plaintiff and defendants 1 and 2 and they are not liable to be sold as the assets of deceased Bella Madhava Bhatta. The question to be decided is what is the legal effect of the order for sale of the properties comprised in Exs. B-13 and B-18 passed in execution of Ex. A-6. The binding nature of the order on the 1st defendant and his interest in the plaint B (1) schedule items cannot be disputed. The learned counsel appearing for the 7th defendant contended that though the 1st defendant and the plaintiff were impleaded in R.I. A. 888 of 1939 as the legal representatives of Bella Madhava Bhatta, the impleadment of the 1st defendant was in his capacity as the manner of the joint family of the plaintiff and defendants 1 and 2 and the omission of the 1st defendant to object in the execution proceedings that the properties are not liable to be sold as the assets of deceased Madhava Bhatta will preclude the plaintiff from filing the present suit. According to the learned counsel for the 7th defendant the order to sell the properties covered by Ex. B-13 and B-18 by the execution court is an implied decision by that court that the decree is enforceable against such properties and since the plaintiff was represented by the 1st defendant being the joint family manager in these proceedings, the decision of the execution court to the sale ability of the plaint B (1) schedule items as the assets of Bella Madhava Bhatta is binding on the plaintiff. The answer to this contention by the learned counsel for the plaintiff was that since the plaintiff was eo nomine impleaded as a party to R.I. A. 888 of 1939 and represented by the first defendant as guardian ad litem the representative character of the first defendant to represent the plaintiff as joint family manager was not there in those proceedings and it is open to the plaintiff to attack the proceedings in execution that resulted in the court sale of Ex. B-13 and B-18 properties on the ground of gross negligence of the 1st defendant in defending the proceedings relating to the sale of plaint B schedule properties in execution of Ex. A-5. In support of his contention the learned advocate for the plaintiff relied on the decision in Ganesha Row v Tuljaram Row 40 Ind App 132 where it was pointed out by their Lordships of the Judicial Committee when in a suit in which the minor is a party the father or managing member is appointed as the next friend or guardian of a minor his powers are controlled by the provisions of the general law as to next friend and guardian ad litem and he cannot do any act in his capacity of father or managing member which he is debarred from doing as next friend or guardian without leave of the court. According to their Lordships, to hold otherwise would be to defeat the object of the enactment.
9. In
In the case of a Hindu family where all have rights, it is impossible to allow each member of the family to litigate the same point over and over again, and each infant to wait till he becomes of age, and then bring an action, or bring an action by his guardian before; and in each of these cases, therefore, the Court looks to Explanation 6 of S. 11 of the CPC to see whether or not the leading member of the family has been acting either on behalf of minors, in their interest, or if they are majors, with the assent of the majors.
Now in the present case if the plaintiff was not made a party to the proceedings based upon Ex. A-6 in view of the fact that the first defendant was impleaded as the representative of his branch being the joint family manager of that branch on the relevant date the orders of the execution court for the sale of Ex. B-13 and B-18 properties will be binding upon the plaintiff also. The karta or the head of a joint Hindu family represents the interests of all the members of the family in a litigation in which an interest of the family is involved and no representation order is necessary to make absent members of the joint family liable under the decree passed against the manager of joint family. In the case of a decree obtained against the manager of a joint family mere gross negligence of the joint family manager not amounting to fraud or collusion in conducting or defending the proceedings is not a ground for setting aside the decree, for it was pointed out in
It seems to their Lordships that there is a fallacy underlying the reasoning on which the Courts below have proceeded. No doubt a father or managing member of a joint Hindu family may, under certain circumstances and subject to certain conditions, enter into agreements which may be binding on the minor members of the family. But where a minor is party to a suit and a next friend or guardian has been appointed to look after the rights and interests of the infant in and concerning the suit, the acts of such next friend or guardian are subject to the control of the Court. Section 462 of the Code of Civil Procedure, 1882, expressly provides that ''No next friend or guardian for the suit shall, without the leave of the Court, enter into any agreement or compromise on behalf of a minor, with reference to the suit in which he acts as next friend or guardian.
The Courts in India seem to think that because Rajaram was a party to the suit of 1886 and was also guardian ad litem for his minor son, who was a member of the joint family whom Rajaram was representing, it was open to him to enter into the compromise in his personal capacity, and as it was a bona fide settlement of a disputed claim, it became binding on the minor by virtue of his having acted as the managing member of the family. How far the acts of a father or managing member may affect a minor, who is party to the suit represented by another person as next friend or guardian ad litem, is a question which does not arise in the case, and their Lordships are not called upon to express an opinion on it. But they consider it to be clear that when he himself is the next friend or guardian of the minor his powers are controlled by the provisions of the law and he cannot do any act in his capacity of father or managing member which he is debarred from doing as next friend or guardian without leave of the Court. To hold otherwise would be to defeat the object of the enactment.
In the case before us nothing was done by the first defendant in the execution proceedings based on Ex. A-6 in contravention of the provisions of Order 32. As such the observations of their Lordships of the Privy Council in Ganesha Row v Tuljaram Row Indian Appeals 132 do not support the plaintiff. The decision in Ganesha Row v Tuljaram Row Indian Appeals 132 was considered by their Lordships of the Supreme Court in
"Equally untenable is the second argument that the provisions of O.32 of the CPC debar the manager of a Hindu joint family from giving discharge in respect of a liability to deliver properties. Under the Hindu Law the Kartha of a Hindu Joint family represents all the members of the family and has the power and duty to take action which binds the family in connection with all matters of management of the family property. Clearly, therefore, when in respect of a transaction of property possession has to be received by the several members of the family, it is the Karta''s duty and power to take possession on behalf of the entire family, including himself, the members of the family who are sui juris as well as those who are not.
When any minor member of a joint family is a party to a proceeding in a court he has however to be represented by a next friend appointed by the court and where somebody other than the managing member of the family has been appointed a guardian ad litem there might be difficulty in the way of the managing member giving a discharge on behalf of the minor. Where however the managing member himself is the guardian ad litem the only difficulty in the way of action being taken by him on behalf of a minor is to the extent as mentioned in O.32, R.6 and 7. In Ganesha Row v. Tuljaram Row, 40 Ind. App.132 the Judicial Committee pointed out that:-
No doubt a father or managing member of a joint Hindu family may, under certain circumstances and subject to certain conditions, enter into agreements which may be binding on the minor members of the family. But where a minor is party to a suit and a next friend or guardian has been appointed to look after the rights and interests of the infant in and concerning the suit, the acts of such next friend or guardian are subject to the control of the Court.
In that case their Lordships held that in view of the provisions of S. 462 of the then CPC (Which corresponds to O.32, R.7 of the present Civil Procedure Code) the managing member who had been appointed a guardian in the suit had no authority to enter into any compromise or agreement purporting to bind the minor. This principle has been applied also to cases where the provisions of O.32, R.6, would apply and so it has been held in numerous cases in India that the Karta of a Hindu joint family though guardian in the suit cannot give a valid discharge in respect of a claim or a decree for ''money or other movable property. (
In the present case however there is no scope for the application of either the provisions of O.32, R.6 or O.32, R.7 of the Code of Civil Procedure. Neither is this a case of a receipt of any money or movable properties; nor is there any question of entering into an agreement or compromise on behalf of the minor. For clearly acceptance of delivery of possession of property in terms of the decree in a partition suit can by no stretch of imagination be considered entering into any ''agreement or compromise
It will therefore be seen that nothing was done by the first defendant in contravention of the provisions of Order 32, Rules 6 and 7, C.P.C. to attract the decision in Ganesh Row v Tuljaram Row Indian Appeals 132.
10. The next contention of the learned counsel for the plaintiff was based on Section 11, Explanation VI to the C.P.C. According to the learned counsel, when once the plaintiff is made an eo nomine party to a proceeding he cannot be considered to be a person claiming under the manager of the joint Hindu family who is also a party to the proceeding in view of the wording of Section 11 and Explanation VI. to that Section. We are afraid that this contention has no substance. The impleading of the plaintiff was necessitated probably on account of the fact that he might be interested in the separate assets of Bella Madhava Bhatta. At any rate it cannot be contended that by the mere fact of impleading the plaintiff in the execution proceedings to represent the assets of Bella Madhava Bhatta the capacity of the first defendant as joint family manager to defend in respect of a right belonging in common to him and the plaintiff has been taken away.
11. For the applicability of Explanation VI to Section 11 if there is any right which is common to the first defendant and the plaintiff and if in respect of such a right the first defendant is legally competent to represent the plaintiff also, the fact the plaintiff is also made a party will not in any way affect the representative capacity of the first defendant and the decision rendered will be binding on the plaintiff as well if the 1st defendant has litigated bona fide in respect of such common right. The onus of proving want of bong, fides on the part of the first defendant in respect of the previous litigation is on the party seeking to avoid the prior decision. Proof of negligence cannot establish such want of bona fides in this case it was contended on behalf of the plaintiff that under Ex. A-2 the liability for discharging Ex. A-6 was thrown on the branch of Madhava Bhatta and the failure on the part of the first defendant to contest the sale ability of the plaint B-1 schedule properties in execution of Ex. A-6 will prove not only negligence but will establish also want of bona fides. We do not think that we can accept this contention of the learned counsel for the plaintiff. Any negligence on the part of the first defendant to raise the necessary pleas in respect of a common right belonging to him and the plaintiff however effective such contention might have been can only prove negligence but will not prove the absence of bona fides. Bona fide means in good faith and the question is whether good faith could be predicted because of a situation created by want of due diligence or by gross negligence. ''Good faith'' is defined in Section 3, clause (20), General Clauses Act X of 1897, thus:
A thing shall be deemed to be done in ''good faith'' where it is in fact done honestly, whether it is done negligently or not,
In view of this definition, it will have to be held that a person must be deemed to have litigated in good faith or bona fide within the meaning of Explanation VI to Section 11, C.P.C., if he did litigate honestly, whether he did so negligently or not. We are therefore of the view, that Explanation VI to Section 11 is attracted and therefore Ex. A-6, A-10 and A-12 and the orders for sale of the properties comprised in Ex. B-13 and B-18 are binding on the plaintiffs. This finding is quite sufficient to nonsuit the plaintiff and confirm the decision of the lower court.
12. It is therefore not necessary to decide whether Section 47 of the C.P.C. operates as a bar to the suit and whether the suit is barred by limitation under Article 12 of the Limitation Act. It is also unnecessary to consider the question whether Ex. B-1 is vitiated by negligence on the part of the next friend of the plaintiff in conducting O.S. 11 of 1947 on the file of the Subordinate Judge''s Court, South Canara. In the result, in confirmation of the decree and judgment of the court below, we dismiss the appeal with costs.
