The right of the minor, after attaining majority in order to challenge earlier judgment and decree passed against him in terms of Order 32 Rule 3A of the C.P.C. has been considered by the Hon'ble Apex Court in the case of Kameshwari Devi v. Barhani as reported in (1997) 10 SCC 273 wherein it has been held as follows under para-4:-
It is true, as rightly contended by Dr. Shankar Ghose, learned Senior Counsel, that in a case where the estate of the minor is involved in an action for partition or any other suit, the estate of the senior is required to be properly represented taking all diligent steps by either guardian ad litem or the court guardian. If the interest or the estate of the minor is not protected necessarily, the minor on his attaining majority or within three years thereafter is entitled to file the suit under Section 7 of the Limitation Act, after cessation of the disability to question the correctness of a decree which is sought to be made binding on him. But in that case, the limited defence that could be open to him is that either the decree in the earlier suit was obtained by fraud/collusion or by negligence by the court guardian or that the guardian ad litem did not safeguard the interest of the estate of the minor. On proof of those facts, necessarily, the decree does not bind him and it is open to the court to go behind the decree and consider the right of the minor dehors the decree.
36. In the case of Asharfi Lal v. Smt. Koili (dead) as reported in AIR 1995 SC 1440 it has been held under following paragraphs which are as follows:-
9. The question is whether it is permissible for a minor to avoid a judgment delivered in an earlier proceeding to which he was a party on the ground of negligence of his next friend. In England, an infant plaintiff is as much bound by a judgment or order as an adult, even though there may have been irregularities in the conduct of the proceedings, unless there has been fraud or gross negligence on the part of his next friend. [See: Halsbury's Laws of England, 4th Edn., Vol. 24. Para 895. 12]. In Re Hoghton, Hoghton v. Fiddey, (1874) LR 18 Eq 573, Sir Richards Malins V. C., while considering the question whether an infant is to suffer by any negligence on the part of a next friend, has observed :
"The proposition that an infant of tender years may have her whole fortune wrecked by the neglect of their next friend is so monstrous that I cannot pay attention to it. She is entitled to have a next friend who is diligent and will protect her interests."
10. The Courts in India, by and large, have adopted the same approach. Till 1936 there was consensus of judicial opinion that it is permissible for a minor to a void a decree obtained against him if there is negligence on the part of his next friend in the conduct of the case. [See : Lalla Sheo Churn Lal v. Ramnandan Dubey, (1894) ILR 22 Cal. 8; Gursan Das Natha v. Ladakavahu, (1895) ILR 19 Bom. 571; Hanmantapa Chundruna Punnayyah v. Rajan Viranna, AIR 1922 Mad. 273; Kumar Ganganand Singh v. Maharaja Sir Rameshwar Singh Bahadur, AIR 1927 Pat 271; Imam Din v. Puran Chand, (1919) ILR 1 Lah 27 : (AIR 1920 Lahore 417); Siraj Fatma v. Mahmud Ali, (1932) ILR 54 All. 646 : (AIR 1932 All 293) (FB)].
11. In 1936, the Privy Council in Talluri Ventaka Seshaya v. Thadikonda Kotiswara Rao, AIR 1937 P. C.
1, considered the question whether a decree can be set aside on the ground of gross negligence in the context of a representative suit under Order 1, Rule 8, CPC. In that case, their Lordships, after noticing the decisions of the Calcutta High Court and Madras High Court, have observed :
"Their Lordships are not concerned to discuss the validity of these decisions, or the illusive distinction between negligence and gross negligence, as they are satisfied that the principle involved in these cases is not applicable to such cases as the present one. The protection of minors against the negligent actings of their guardians is a special one, and in these cases the plaintiff in the second suit was also the plaintiff in the former suit, although in the earlier suit he or she had sued through a guardian." [P. 4]
12. The Privy Council did not, however, agree with the view expressed in Karri Bapanna v. Yerramma, AIR 1923 Mad 718, that the principles of Section 44 of the Evidence Act can be extended to cases of gross negligence and observed :
"The provisions of S. 11 Civil P. C. are mandatory, and the ordinary litigant, who claims under one of the parties to the former suit can only avoid its provisions by taking advantage of S. 44,Evidence Act, which defines with precision the grounds of such avoidance as fraud or collusion. It is not for the Court to treat negligence, or gross negligence, as fraud or collusion, unless fraud or collusion is the proper inference from the facts." [P. 4]
13. After the said decision of the Privy Council, the matter has been considered by the various High Courts. Most of the High Courts have taken the view that though a judgment against a minor cannot be avoided on the ground of fraud or gross negligence on the part of his next friend under Section 44 of the Evidence Act, it is permissible for the minor to file a suit to set aside the decree on the ground of fraud or gross negligence on the part of his next friend. (See : Mahesh Chandra v. Manindra Nath, AIR 1941 Cal. 401; Eqappa Chettiar v. Ramanathan Chettiar, AIR 1942 Mad, 384; Iftikar Hussain Khan v. Beant Singh, AIR 1946 Lah. 233 (FB); Mahammad Baksh v. Allah Din, AIR 1942 Oudh 33;
Kamkashya Narain Singh Bahadur v. Baldeo Sahai, AIR 1950 Pat. 97 (FB) and Rameshwar Prasad v. Ram Chandra Sharma, AIR 1951 All. 372 (FB)). The Bombay High Court has, however, taken a different view and has held that gross negligence, apart from fraud or collusion on the part of the next friend or guardian ad litem or a minor litigant cannot be made the basis of a suit to set aside a decree obtained against him. [See : Krishnadas Padmanabhrao Chandavarkar v. Vithoba Annappa Shetti, AIR 1939 Bom. 66 (67) (Full Bench)]. In that case Beaumont C. J. has disagreed with the earlier decisions of the said High Court on the view that the said decisions were based on a misconception of English law and that under the English law an infant cannot challenge a decree properly passed against him on the ground that his guardian ad litem was guilty of gross negligence in suffering the decree, and if that is so, there was no reason why such a cause of action should lie in British India. Meredith J., in Kamkashya Narain Singh Bahadur v. Baldeo Sahai (AIR 1950 Patna 97) (FB) (supra), has dealt with the English law on the subject and has pointed out that Beaumont C. J. in Krishnadas Padmanabhrao Chandavarkar v. Vithoba Annappa Shetti (AIR 1939 Bom 66) (FB) (supra) was not right in his appreciation of the English law on the subject. According to the learned Judge [Meredith J.] the substantive right to an infant, on attaining majority, to avoid a decree obtained against him owing to the gross negligence of his next friend was undoubtedly recognised in England from early times. The Privy Council in Talluri Venkata Seshayya v. Thadikonda Kotiswara Rao (AIR 1937 P. C. 1) (supra) has also pointed out that protection of minors against the neglect acting of their guardians is a special one. In the instant case, the High Court has proceeded on the basis that it is permissible for a minor to file a suit to set aside a decree on the ground of gross negligence on the part of his next friend. We are in agreement with the said view.
37. Plaintiffs, who have come forward and claimed relief to be adjudicated upon as well as be granted to them on the facts so enumerated in the plaint, is further found under obligation to substantiate the same by cogent and reliable evidence in terms of Section 101, 102 of the Evidence Act. Furthermore, in terms of Order 32 Rule 3A of the C.P.C. which permits the minor after attaining majority to challenge the previous decree being adverse to him on the ground of misconduct, gross negligence on the part of next friend or guardian, was required to, in terms thereof, to be duly substantiated by the cogent and reliable evidence.
Patna High Court
Bijendra Mandal & Ors vs Ganpat Mandal on 4 December, 2015
First Appeal No.464 of 1983