What are rights of minor after attaining majority to challenge decree passed against him?

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

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Whether minor can be held liable for dishonour of cheque drawn by him if cheque bears date subsequent to his attaining majority?

  Next question is, whether the quondam minor can be held

liable for dishonour of a cheque, drawn by him/her, for want of funds in the

account,      if the cheque bears a date subsequent to his/her attaining

majority and further the dishonour takes place after he/she attained

majority? For this question also, the answer can only be in the negative.

Indisputable proposition is that a cheque defined under Section 6 NI Act is

also a bill of exchange, but it is drawn on a banker and it is payable on

demand. It is, thus, obvious that even though a bill of exchange is drawn

on a banker, if it is not payable on demand, it is not a cheque. A postdated

cheque is only a bill of exchange when it is written or drawn and it becomes

a cheque when it is payable on demand. A postdated cheque is not

payable till the date, which is shown on the face of the document. (see



Ashok Yeshwant Badeve v. Surendra               Madhavrao Nighojakar and

another (2001 Cri.L.J. 1674 (SC)) and Shri Ishar Alloys Steels Ltd. v.

Jayaswals NECO Ltd.(2001 Cri.L.J. 1250 (SC)). In the normal course,

dishonour of a postdated cheque, after it has become a cheque in the eye

of law, would have attracted the offence under Section 138 NI Act.

Nevertheless, the law pronounced distinctly in Section 26 NI Act makes it

clear that though a minor can draw, indorse, deliver and negotiate a

promissory note, cheque, etc. so as to bind all parties, it excludes the

minor's capacity to bind himself.        In other words, the said provision

insulates the minor from binding himself from the consequences of

drawing, indorsing, delivering and negotiating a negotiable instrument. On

recapitulating the principles discussed above, I arrive at the following

findings:

                 A minor, who had drawn a cheque, which is dishonoured for

want of funds in the account after his/her attaining majority, is exempted

from prosecution because the cheque is one without consideration.

Besides, the minor at the time when the cheque was drawn was incapable

of incurring any debt or liability, which could have been legally enforced

against him/her, in spite of the fact that he/she attained majority on the date

of dishonour of the cheque. 
IN THE HIGH COURT OF KERALAAT ERNAKULAM

                                                       PRESENT:

                         MR. JUSTICE A.HARIPRASAD

             2ND DAY OF SEPTEMBER 2014

                      Crl.MC.No. 3805 of 2012 ()
                                              
            ANAGHA PRASAD,

Vs

             M.C.ABU, MACHINCHERY HOUSE, 
    Citation;2016 CRLJ(NOC)86 Kerala

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Whether there is limitation for correction of date of birth as per registration of birth and deaths Act?

In Bailochan Karan v. Basant Kumari Naik, (1999)2 SCC 310,
the Hon’ble Supreme Court followed the judgment in Darshan Singh’s
case (supra) to hold as under:-
“6. In the present case the maximum period of
limitation available to the appellant was only three years
from the date of his attaining majority, in other words,
cessation of the disability. This position has been
considered by this Court in Darshan Singh & Ors. v.
Gurdev Singh, (1994) 6 SCC 585. It is clearly laid down
that Section 8 is a proviso to Sections 6 or 7. A
combined effect of Sections 6 and 8 read with third
column of the appropriate article would be that a person
under disability may sue after cessation of disability
within the same period as would otherwise be allowed
from the time specified therefore in the third column of
the schedule. But such extended period would not be
beyond three years from the date of the cessation of the
disability. Consequently the right to file a suit of the
appellant got expired at the end of three years from the
date of his attaining majority, whether it was 1963 or
1966. In this case it is unnecessary for us to consider
whether the appellant attained majority in 1966 on
completion of 21 years or in 1963 on completion of 18
years as it is not relevant for the purposes of this case.
The plaintiffs, therefore, perfected their title by virtue of
Section 27 of the Limitation Act.”
[45] The right to seek actual date of birth has to be exercised within
three years of attaining the majority on the basis of the birth
certificate issued by the Registrar of Births and Deaths. But, after
expiry of period of three years from the cessation of disability, no 
person can rely upon the birth certificate. He is bound by the date
given in the matriculation certificate. Therefore, in any case, the right
of a person to seek actual date of birth on the basis of entry in the
birth certificate by the Registrar of Births and Deaths is three years
after attaining the majority on the basis of date of birth in the said
certificate.
[46] We do hope that the schools within the jurisdiction of this Court
insist upon birth certificate issued from the Registrar of Births and
Deaths at the time of admission to the schools so that such date of
birth is correctly reflected in the matriculation certificate. If it is not
being followed, all schools, Government, Public and/or Private, shall
not grant admission to the child unless he produces his birth
certificate from the Registrar, Births & Deaths. Thus, the date of birth
in the school record leading to matriculation certificate would be in
sync with the date of birth from the records of the Registrar of Births
& Deaths.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
 Date of Decision: May 21, 2015
(1) LPA No. 1613 of 2014 (O&M)

 Ambika Kaul V Central Board of Secondary Education and others 


CORAM: HON’BLE MR. JUSTICE HEMANT GUPTA
 HON’BLE MRS. JUSTICE LISA GILL

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Whether children of void marriage are entitled to get family pension till they attain majority?

 Now, when first order was cancelled by the State Government and second passed depriving Yogmaya Devi and her children of any right in the pensionary benefits of Narain Lal, she filed writ petition in the High Court, which as noted above, was allowed by the learned single Judge and later appeal filed by Rameshwari Devi against that was dismissed by the Division Bench of the High Court which is impugned. Learned single Judge referred to Section 16 of the Hindu Marriage Article 1955 holding that even though the marriage of Narain Lal with Yogmaya Devi was void (heir children would be legitimate and thus would be entitled to claim share in the family pension and death-cum-retirement gratuity of Narain Lal but only till they attained majority. Learned single Judge accordingly issued direction to the State Government, to issue fresh sanction order for payment of arrears of family pension and death cum-retirement gratuity to the minor children born from the wedlock between Yogmaya Devi and Narain Lal till they attain majority but nothing would be payable to Yogmaya Devi.

It cannot be disputed that the marriage between Narain Lal and Yogmaya Devi was in contravention of clause (i) of Section 5 of the Hindu Marriage Act and was a void marriage. Under Section 16 of this Act, children of void marriage are legitimate. Under the Hindu Succession Act, 1956, property of a male Hindu dying intestate devolve firstly on heirs in clause (1) which include widow and son. Among the widow and son, they all get shares (see Sections 8, 10 and the Schedule to the Hindu Succession Act, 1956). Yogmaya Devi cannot be described a widow of Narain Lal, her marriage with Narain Lal being void. Sons of the marriage between Narain Lal and Yogmaya Devi being the legitimate sons of Narain Lal would be entitled to the property of Narain Lal in equal shares along with that of Rameshwari Devi and the son born from the marriage of Rameshwari Devi with Narain Lal. That is, however, legal position when Hindu male dies intestate. Here, however, we are concerned with the family pension and death-cum-retirement Gratuity payments which is governed by the relevant rules. It is not disputed before us that if the legal position as aforesaid is correct, there is no error with the directions issued by the learned single Judge in the judgment which is upheld by the Division Bench in LPA by the impugned judgment. Rameshwari Devi has raised two principal objections : (1) marriage between Yogmaya Devi and Narain Lal has not been proved, meaning thereby that there is no witness to the actual performance of the marriage in accordance with the religious ceremonies required for a valid Hindu marriage and (2) without a civil court having pronounced upon the marriage between Yogmaya Devi and Narain Lal in accordance with Hindu rights, it cannot be held that the children of Yogmaya Devi with her marriage with Narain Lal would be legitimate under Section 16 of the Hindu Marriage Act. First objection we have discussed above and there is nothing said by Rameshwari Devi to rebut the presumption in favour of marriage duly performed between Yogmaya Devi and Narain Lal. On the second objection, it is correct that no civil court has pronounced if there was a marriage between Yogmaya Devi and Narain Lal in accordance with Hindu rights. That would, however, not debar the State Government from making an inquiry about the existence of such a marriage and act on that in order to grant pensionary and other benefits to the children of Yogmaya Devi. On this aspect we have already adverted to above. After the death of Narain Lal, inquiry was made by the State Government as to which of the wives of Narain Lal was his legal wife. This was on the basis of claims filed by Rameshwari Devi. Inquiry was quite detailed one and there are in fact two witnesses examined during the course of inquiry being (1) Sant Prasad Sharma, teacher, DAV High School, Danapur and (2) Sri Basukinath Sharma, Shahpur Maner who testified to the marriage between Yogmaya Devi and Narain Lal having witnessed the same. That both Narain Lal and Yogmaya Devi were living as husband and wife and four sons were born to Yogmaya Devi from this wedlock has also been testified during the course of inquiry by Chandra Shekhar Singh, Rtd. District Judge, Bhagalpur, Smt. (Dr.) Arun Prasad, Sheohar, Smt. S.N. Sinha, w/o Sri S.N. Sinha, ADM and others. Other documentary evidence were also collected which showed Yogmaya Devi and Narain Lal were living as husband and wife. Further, the sons of the marriage between Yogmaya Devi and Narain Lal were shown in records as sons of Narain Lal.

Having considered all the facts of the case as presented before us we do not find any error in the impugned judgment of the Division Bench of the Patna High Court upholding the judgment of the learned single Judge referred to in the beginning of this judgment. 

Supreme Court of India

Rameshwari Devi vs State Of Bihar And Others on 27 January, 2000

Bench: D.P.Wadhawal, S.N.Phukan

Citation;AIR2000SC735, 2000(4)ALLMR(SC)237,I(2000)DMC164SC,(2000)2SCC431, (2000)SCC(LS)276,

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