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PETITIONER: SMT. KAMESHWARI DEVI @ KALESHWARI DEVI & ORS.

       Vs.

RESPONDENT: SMT. BARHANI (DEAD) BY LRS. & ORS.

DATE OF JUDGMENT:       20/02/1997

BENCH: K. RAMASWAMY, S. SAGHIR AHAMD

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal  by special  leave arises from the judgment of the Patna High Court, made on February 25, 1986 in Appeal from Appellate Decree No.17 of 1977.      The admitted  facts are  that  one  Hulash  Kumhar  the common ancestor,  had two  sons,  Jitram  Kumhar  and  Gudar Kumhar.  The  appellants  represent  the  branch  of  Jetram Kumhar. Bigan was the father of the appellant and his mother was Anandi  Kauri. Bigan died in 1957 leaving behind him the original plaintiff. Arujun Mahato and his sisters, defendant Nos. 8-11  and brothers defendant Nos. 13 and 14. One Bajani Kumari, defendant No.1 in the present suit, representing the branch of  Gudar Kumhar,  filed  suit  No.178  of  1957  for partition impleading  Bigan and  five others.  The suit  for partition was  filed on  September 20,  1957 and  Bigan died before summons  were served  on him  on September  27, 1957. Subsequently, his  widow, Anandi Kauri was brought on record as defendant  No.1. The  appellant was  impleaded therein as 4th defendant. Summons ultimately, were taken to this mother as natural  guardian.  Since  she  refused  to  receive  the notice, an  application was  taken out  to appoint  a  court guardian, which  accordingly came  to be  ordered. The court guardian represented  the appellant  in O.S.  No.178/57. The suit was decreed confirming grant of 1/42nd share of each of the  branches  of  Bigan.  The  appellant,  after  attaining majority, filed  the present  suit  for  setting  aside  the earlier partition decree in suit No.178/57 did not bind him. The trial  Court  granted  a  preliminary  decree.  But,  on appeal,  the   District  Judge   reversed  that  decree  and dismissed the  suit and  in the second appeal the High Court confirmed the same. Thus, this appeal by special leave.      The only  controversy in  this appeal  is : whether the appellant is  bound by  the decree passed in suit No.178/57. the findings  recorded by  all the courts are that there was no written  statement filed  on behalf  of the  appellant in suit No.178/57.  The thrust  of  the  case  set  up  by  the appellant is that the Phatbandi, Ex.C, does not bind him and the parties  and the interest of the estate of the appellant as a  minor was  not properly  safeguarded in that behalf in suit No.178/57.  It is an undisputed fact that Phatbandi was

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a registered  document of  the year  1920 by which time even the plaintiff  was not  born. It  is the  common case of the parties of the branch of Bigan in the suit No.178/57 that it was a  nominal document with a view to defraud the creditors and was  not acted  upon. The controversy was gone into upto the High  Court in  the earlier  litigation in  details  and ultimately the  finding recorded  was that  it was  a  valid document in  the nature  of a  partition and was acted upon. that finding  had become final. The question is: whether the estate  of  the  minor  was  properly  represented  in  suit No.178/57?      It is  true, as rightly contended by Dr. Shankar Ghosh, 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  minor  is  required  to  be properly represented  taking all  diligent steps  by  either guardian ad  litem or the court guardian. If the interest of the estate  of the minor are 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  de  hors  the decree. But,  in this case, whether that question arises for decision is  to be  seen. It  is true,  as found  by all the court, that  the document,  Ex. C,  Phatbandi was a document marked as  D/2 in  suit No.178/57. The sheet anchor, in that suit, the  defence open  to all  the parties on the document was that  it was not a genuine document and was brought into existence only  to defraud  the creditors. that question was common to  the interest  of all  the  person  including  the minor. The  parties had  hotly contested  the suit  and  the matter was  carried upto  the High  Court and the High Court had considered it and recorded the finding that it was true, valid and  binding deed  being registered partition deed and was acted  upon; and  it  bound  the  parties.  Under  these circumstances, though  the court  guardian had not filed any separate written  statement, it  makes little  difference on the facts  in this  case for  the reason that the defence on Ex.C was  common to  all and  the estate  of the  minor  was sufficiently  represented   by  appointment   of  the  court guardian and  that  court  had,  in  fact,  gone  into  that question.  It   binds  the  appellant  and  operates  as  re judicata. If  it were  a case  de hors  the document and any other independent  right was  available and  not set  up nor considered in  the earlier  suit, necessarily  that question could be  gone into  in the  present suit since that was not pleaded by  filing any written statement or contested by the court guardian  in that  behalf. No other plea was raised in this  suit.  Under  these  circumstance,  the  finding  that Phatbandi, Ex.C binds the parties including the appellant is a finding validly recorded.      Equally, the  finding recorded  by the  appellate Court and confirmed  by the High Court that the court guardian had acted neither  negligently nor  fraudulently  also  is  well justified on  the facts  and  circumstances  in  this  case. Ex.C.2 operates as res judicata and binds the appellant. The ‘appeal, therefore, warrants nor interference.

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    The appeal is accordingly dismissed. No costs.