Authored By : Charles Dickson Field, O Kinealy

Charles Dickson Field, J.

1. The plaintiff in this case is one Bhikya Lal Misser, whois the second son of Babua Misser. He has an elder brother, Mokund Lal Misser,and a younger brother, Nursingdut Misser. The father of Babua Misser, DebidutMisser, on the 5th of February 1864, executed a document, whereby passing overhis own son Babua Misser, he divided the bulk of his property between his threegrandsons, Bhikya Lal Misser, Mokund Lall Misser and Nursingdut Misser. He wasable to do this because the property so disposed of was self-acquired. He gaveto Babua Misser by the same deed certain plots of land which were ancestral,but which formed only a small portion of the whole property in his possession.

2. On the 19th of May 1873 Babua Misser, professing to actas guardian and manager of his three sons, borrowed Rs. 16,998, and executed abond for this amount in favour of Raghubar Dyal Sahu and Tribeni Lal Sahu. Thisbond recited that Babua Misser had borrowed this sum of Rs. 16,998 fromRaghubar Dyal Sahu and Tribeni Lal Sahu for the purpose of paying off certaindecrees, and thus protecting the estate of the minors, and for the purpose ofmeeting other personal necessities and of defraying the expenses of a certainappeal which was pending before the Privy Council. The amount of the bond nothaving been discharged, a suit was brought thereupon, and on the 18th of August1876 a "decree was made in that suit against Mokund Lal Misser, who wasthen of age, and Bhikya Lal Misser and Nursingdut Misser, minors. Theplaintiffs in that suit were Raghubar Dyal Sahu and Tribeni Lal Sahu, in whosefavour the bond had been executed. In execution of that decree two propertieswere sold, namely, four annas in mouzah Bourahar and eight annas in mouzahJiroul. The four annas share of mouzah Bourahar was mortgaged by the bond ofthe 19th of May 1873, and the decree of the 18th of August 1876 directed thesale of this property in satisfaction thereof. The total amount of the decreenot having been satisfied by this sale, the other property, Jiroul, was sold,although it had not been specifically included in the mortgage bond.

3. The present suit has been brought by Bhikya Lal Misser,who was at that time a minor, in order to recover these two properties, and hisgeneral contention is that the bond and the whole of the proceedings in thesuit thereupon were fraudulent and collusive; that he is not and cannot bebound thereby; and that, therefore, he is entitled to treat those proceedingsand the sale as nugatory; and to recover the two properties which were given tohim by the deed executed by his grandfather on the 5th of February 1864.

4. It is to be observed that so far as Bhikya Lal Misser isconcerned, the decree of the 18th of August 1876 was ex parte.

5. The first question which has been argued in this appealis concerned with limitation. It is said that this suit is barred, because itwas not instituted within three years from the date on which the sale of theseproperties was made under the decree. On the other hand, it is contended that,inasmuch as the object of this suit is to recover the properties, and notmerely to set aside the decree of the 18th of August 1876, and the proceedingshad thereunder including the sale, the twelve years rule of limitation ought toapply.

6. I shall first consider whether the three years rule isapplicable to this suit. The Judge in the Court below is of opinion that thesuit is not barred. He says: "The plaintiff comes in as a minor, and thefirst issue relates to his age. I find that he was born, in Cheyt 1269, and thesuit has therefore been instituted within three years of his attainingmajority." Apparently then the Judge assumed that the three years rule oflimitation was applicable. The Judge does not, however, say on what particulardate in Cheyt he finds that the plaintiff was born, and his decision on thepoint of limitation is certainly so far unsatisfactory. This suit wasinstituted on the 14th of April 1883. The only evidence as to the plaintiffsage consists of the testimony of the witness, Jalpadat Jha, and the evidencesupplied by the horoscope. The witness Jalpadat Jha swears positively thatBhikya Lal Misser was born on the 12th Cheyt 1269; the corresponding Englishdate would be the 28th of March 1862. The plaintiff, therefore, attained hismajority on the 28th of March 1880, and this suit having been instituted on the14th of April 1883 was not brought within three years. Then as to thehoroscope, this document describes the birth of the third () son of BabuaMisser as having taken place on Friday, the 12th day, in the light semibulationof Cheyt in the year 1918 of the Sumbut, corresponding with the year 1784 ofthe Sak era, and with the year 1269 of the common era. Now, the 12th day ofCheyt 1918 was not a Friday, and if the plaintiffs birth took place in thatyear he would have been born in 1861, and therefore a year earlier than thetime of birth stated by the witness Jalpadat Jha. But it has been suggestedthat 1918 may be an error for the year 1919, and if that were so the 12th Cheytof that, year would be a Friday, and that day would correspond with the 30thCheyt 1783, and to the 11th of April 1862, in which case also this suit wouldno have been instituted within three years from the date on which the plaintiffattained his majority. There can be no doubt, therefore, that the Judgesfinding upon the assumption that the three years rule is applicable is basedupon a misconception of the evidence, and is erroneous. The suit, if governedby the three years rule of limitation, is barred.

7. But then it has been contended that the twelve years ruleought to apply, and that the case ought to be governed either by Article 1421,or Article 1442. A learned argument has been addressed to us in support of thisview, and amongst other cases that of Raj Bahadoor Singh v. Achumbit Lal L.R. 6IndAp 110 has been referred to. Now, that was a case of an adoption. The widowexecuted what was called a deed of adoption, by which she professed to adopt,and to make a gift of the property to the adopted son. But this gift was not totake effect until her death. Their Lordships of the Privy Council, referring tothe argument that the suit was barred by the six years rule of limitationapplicable to a suit brought to obtain a declaration that the adoption wasinvalid, say: "On the above view of the document, the words of the Statutewould seem scarcely applicable to it. Their Lordships are clearly of opinionthat this provision relating to adoption, though it might bar a suit broughtonly for the purpose of setting aside the adoption, does not interfere with theright which, but for it, a plaintiff has of bringing a suit to recoverpossession of real property within twelve years from the time when the rightaccrued, and that they regard as the nature of this suit. Inasmuch as accordingto the admitted construction of the document the widow conveyed by it no morethan she had, which was but a life-interest, the document is innocuous, and itis immaterial to the plaintiff whether it be set aside or not." If in thatcase the widow had proceeded to complete the proceedings in adoption by makingover the property to the adopted son, instead of executing a deed under whichhe was to take at her death, the case would have been altogether differentTheir Lordships said that the document was innocuous, that is, it had no effector operation so as to affect the plaintiffs rights during the widowslifetime, and until operation was sought to be given to it upon her death. Itappears to me that this decision of the Privy Council has no application to thecase in which a document at once operates upon rights or property intended tobe affected thereby. Articles 913, 924 and 1185 are particularly concerned withinstruments or transactions which, if allowed to stand unchallenged once theybecame known, might become important evidence against the persons, whose rightsthey purported to affect. If those persons omit to challenge them within theshorter period of limitation allowed for doing so, they will not be precludedfrom having the longer period of limitation allowed by the law for the recoveryof Immovable property; but in this latter case they will probably have to showthat the instrument or transaction which they neglected to challenge, is nulland void so far as they and their interests are concerned. Where suchinstrument or transaction was made or done with authority, and had immediateoperation given it so as to affect Immovable property, it is difficult to seehow a person who omitted or neglected to have it set aside within the timeallowed for a suit for doing this, can afterwards challenge its operation oreffect and recover property, the title in which it, if valid, operated totransfer, such transfer being further actually carried out. In the presentcase, if the plaintiff is entitled to treat the proceedings in the former suit,the decree and the sale under the decree, as nullities, no doubt he would be entitledto say that he has twelve years to sue from the time when he was dispossessedby the purchaser at the execution sale. If, on the contrary, these proceedingswere had with jurisdiction, and if the plaintiff was a party so as to be boundby the decree, I think there can be no doubt that he should have takenproceedings to set aside the sale within three years from the date on whichsuch sale was confirmed, or within three years after his coming of age.

8. I must, therefore, deal with the questions raised in thesubsequent portions of this appeal before I can say whether the present suit isbarred by limitation or not. This leads me to a consideration of the effect ofthe decree of the 18th of August 1876.

9. In the first place there can be no doubt that the presentplaintiff was properly made a party to that suit. He was made a party in hisown name, and as represented by his guardian Babua Misser, who was his father.No doubt the decree was an ex parte decree, but the Code of Civil Procedurecontains provisions under which an ex parte decree can be set aside; and Ithink that, if it was sought to set aside the decree on any ground upon whichan ex parte decree can be set aside, resort should have been had to thoseprovisions. It is not suggested that any such resort was ever had. Then, seeingthat the plaintiff was properly made a party to the suit, I think he must betaken to be bound by the decree, that is, unless he can show that it wasobtained by fraud or collusion. The rule on this point was laid down in an oldcase Gregory v. Molesworth 3 Atkyns 626 where it was said: "It is sight tofollow the rule of law, where it is held an infant is as much bound by ajudgment in his own action as if of full age ; and this rule is general, unlessgross laches, or fraud and collusion, appear in the prochein ami, then theinfant might open it by a new bill." That case, so far as I am aware, hasbeen followed down to the present time (see Daniels Chancery Practice, pp.149, 156 and 157). The practice in the Court of Chancery in England has beenthat, if it be sought to question a decree passed against a minor on the groundof fraud or collusion. This might be done by an original bill. If it Verasought to impeach a decree passed against an infant on the ground of grosslaches in the prochein ami, on the ground that the next friend had omitted toput forward proper available grounds of defence, this was usually done byre-opening the original case upon motion or petition. This practice will befound explained in pages 156 and 157 of Daniels Chancery Practice alreadyreferred to, see, as instance of the latter course being pursued, the case ofHoghton v. Fiddey L.R. 18 Eq. 573. In this country we have a differentprocedure. If an infant desires to have a decree set aside on the ground thathis next friend had neglected his interests, and had not put forward on hisbehalf good grounds of defence, which were available, the proper mode ofproceeding would be to apply for a review. The provisions of the Code of Civil Procedurerelating to reviews are sufficiently wide to include such a case. If it besought to set aside a decree obtained against an infant properly made a party,and properly represented in the case, and if it be sought to do this by aseparate suit, I apprehend that the plaintiff in such a suit can succeed onlyupon proof of fraud or collusion.

10. This then being in my view the proper principleapplicable to the case, I have to see whether the plaintiff in the case nowbefore us has given satisfactory proof of such fraud or collusion. His case isthat the two mahajans who obtained the decree of the 18th of August 1876, werein collusion with his own father Babua Misser. Babua Misser is admittedlyliving with the plaintiff, but he has not been put into the witness-box to givehis account of the transaction conducted by him personally. The bond, asalready mentioned, was for the sum of Rs. 16,998. As to a large portion of thissum, namely, Rs. 10,000, there is no dispute or controversy that it wasborrowed to satisfy certain decrees under which the property belonging to thefamily, and to the present plaintiff, had been attached; and there can be nodoubt that, as regards this amount, there was real necessity then subsisting,which justified Babua Misser, as guardian of, and manager for, his minor sons,in borrowing money, executing the bond, and incurring the liability on theirbehalf. But the Judge in the Court below has found that as regards theremaining sum of Rs. 6,998 there was no such necessity, and that this sumrepresented a personal debt due by Babua Misser--a debt for which his sonscould not be liable, and for the discharge of which he was not justified inexecuting any bond which would bind their property. No doubt, if this were so,and if the defendants in the present case were aware of these facts (and inconsidering this part of the case it must be borne in mind that thedecree-holders were themselves the purchasers), there would be a case of fraudSufficient to justify the decree of the Court below setting aside the decree ofthe 18th of August 1876 and the sale held thereunder. Let us see, however, whatis the evidence in support of this fraud. "We have first the testimony ofthe witness Doman Misser. He states in his examination-in-chief that out of theamount of Rs. 17,000 for which the bond was executed, Babua Misser got Rs.10,000 only in cash; that he had a personal debt of about Rs. 6,000; that is tosay, this sum was deducted on account of the previous debts. Part of this debtwas due under a bond, and the rest was the personal debt of Babua Misseu; andthat this previous personal debt was due under a decree. In cross-examinationhe admitted that he had not seen the former decree and bond; and that of theformer debt he only knew what both the parties said, namely, that it waspersonal. To the bond, which is to be found at page 23 of the paper-book, therewere no less than seven witnesses beside the writer. Doman Misser is not,however, one of these witnesses. We have next the witness Loke Nath Misser. Hesays that Rs. 10,000 were on account of the debt of the sons of Babua Misser,and that Rs. 6,000 were his personal debt. But he admits that he does not knowwhat kind of debt this sum of Rs. 6,000 was. He says that it was on account ofa bond and decree, and that when Babua Misser wanted to borrow money he toldhim that he got the loan from nowhere, and that Raghubar and Tribeni would lendmoney provided he included his personal debt in the bond. In cross-examinationhe admitted that the bond or the decree was not shown to him, and that he wasnot present at the time of the payment of the money. This man also is not oneof the witnesses, whose names appear on the bond. Lastly, we have the WitnessBalbhudder Misser. He says that Babua Misser borrowed upwards of Rs. 10,000 toliquidate the debts of his sons, and that he included in the bond the balance,Rs. 6,000, on account of his personal debt; that Raghubar Dyal declined to lendmoney unless the personal debt amounting to Rs. 6,000 was included in the bond.He says in his cross-examination that the whole of the amount of Rs. 6,000 wasdue under a decree, thereby contradicting the previous witness who says thatthere were both a bond and decree. This man also is not one of the witnesses tothe bond. It is quite obvious that none of these three witnesses had anypersonal knowledge of the transactions upon which depended this allegedantecedent personal debt of Rs. 6,000, and that they profess to state, merelythe result of conversations had, and admissions made, in their presence. I havealready observed that Babua Misser has not been put into the witness-box. I maynow make a further observation that not one of the witnesses to the bond hasbeen called, and that there is nothing to show that they are dead or out of theway, or for other reasons could not have been produced. In the absence of thatdirect evidence of the transaction, which might reasonably be expected, I thinkthat, in accordance with principle, it would be exceedingly dangerous, especiallyin this country, to rely upon verbal statements of oral admissions. I may referto the observations of their Lordships of the Privy Council in the case of LalaSheo Pershad v. Juggernath L.R. 10 IndAp 74 : S.C. B.C.L.R. 266; and theobservations of an able Irish Chief Justice (Pennefather) in the case ofLawless v. Queale 8 I L.R. Com. Law. 382 which, though made with reference to adifferent class of admissions, are not without weight and application in thepresent case.

11. It has been contended that the three decrees, which areto be found at pages 32, 34 and 36 of the paper-book, are evidence that BabuaMisser was indebted. There is nothing to show whether these decrees were orwere not satisfied. There is nothing to connect them with the sum of Rs. 6,878with which I am now dealing. The District Judge has made a calculation by whichhe arrives at the conclusion that the share in these decrees to which theobligees of the bond of the 19th of May 1873 were entitled, would come to thesum of Rs. 6,878. But, as I have already observed there is no evidence to showthat the amount due under these decrees was part of the amount for which thebond was actually executed. We are not aware whether these decrees were at thetime barred by limitation or not. There is no information on the subject uponthe record, and the learned pleader who conducted the case for the respondentwas not able to give is any information. If they were barred by limitation, itis not likely that Babua Misser would have given a bond including the amountsdue under those decrees. If they were not barred by limitation, it would bereasonable to expect that the Mahajuns, having obtained a bond, would have beenrequired to certify, and would have certified satisfaction of the decrees tothe extent of their share. It is not shown that anything of the kind was done.This then being the evidence on the part of the plaintiff to establish a caseof fraud, I am compelled to say that it is in my opinion altogether insufficient.On the other hand, we have the evidence of Ram Golam Sahu who swears that thewhole amount of Rs. 16,998 was paid in cash, and he further swears that noportion of the money was deducted on account of any former debt. He says thatthis large sum was required for protecting the properties of the minors bysatisfying the decrees under which these properties had been attached, formeeting the expenses of the Privy Council appeal, and for celebrating themarriage of Mokund Lal. The marriage of Mokund Lal is not expressly stated inthe original bond as one of the objects for which the money was borrowed,although it may well come under the head of necessary family expenses, Thatthere was a Privy Council appeal at that time pending is admitted, and it was,as pointed out by the District Judge, decided by the Privy Council two daysbefore the execution of the bond of the 19th of May 1873; and we have theevidence of Goberdhone Lal, a mukhtar, that Babua Misser had paid over to himRs. 1,000 towards defraying the expenses of this appeal. Looking then at thewhole of the evidence, I think it impossible to say that the plaintiff hassatisfactorily shown that this sum of Rs. 6,998 was a debt contracted by BabuaMisser personally, a debt for which his sons could not be made liable.

12. I think, therefore, that the plaintiff has failed toestablish any case of fraud upon which he would be justified in recovering fromthe defendants the property sold in execution of the decree of the 18th ofAugust 1876. He is, therefore, bound by that decree and by the sale hadthereunder. This being so, he was bound to bring his suit to set aside thatsale within three years of attaining his majority, and not having done so, hissuit is barred by limitation. We must, therefore, reverse the decree of theDistrict Judge, and dismiss this suit with costs in both Courts.

O Kinealy, J.

13. In this case I am of the same opinion as my learnedcolleague.

14. The case is shortly this: The father of the presentplaintiff executed a mortgage deed and mortgaged the property of his minor sonsto the present defendants. Subsequently a suit was brought upon the mortgagedeed, in which the minors were properly represented. In that suit a decree wasobtained, which was drawn up in regular form, and at the sale in execution ofthat decree the decree-holders themselves purchased the property. When MokundLal, who was one of the minors, came of age, he re-opened the case, butsubsequently acquiesced. We have then a judgment regular as to form in whichone of the sons subsequently acquiesced. Under this decree execution issued.Now the plaintiff comes into Court and says: "I charge my father and thedecree-holders in that case with fraud, and the mortgagees, who are also thepurchasers of the property, are bound to hand the property over to me."

15. We had a learned discussion on the question oflimitation. But before limitation can be applied in this case the facts must beascertained. On the one hand it is said that the sale was made without jurisdiction,and that it was a case of fraud. The man whose property has been sold says:"Babua Misser was nothing but a trustee for me; he could not pass theproperty; I do not seek to set aside the sale; the property is mineabsolutely." I can understand such a case, and the limitation applicablewould be twelve years. On the other hand, if it is necessary to set aside thesale in order to follow the property, the limitation applicable is, I think,not twelve but three years. Now in the present case I am of opinion that nofraud has been proved." The oral evidence in support of the admissionalleged to have been made by Babua Misser before the execution of the mortgagedeed is, in my opinion, utterly insufficient to support a case of fraud.Therefore, as in my opinion no fraud was committed, the decree is good, theexecution is good, and the plaintiff cannot reach the property without settingaside the sale in execution of the decree, and as he cannot set aside the sale,he is out of Court.

16. I therefore, concur in the opinion that has already beenexpressed by my learned colleague, and I think that this suit ought to bedismissed with costs.

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Bhikya Lal Misser and Ors.vs. Raghubar Dyal Sahu and Ors.(12.08.1885 - CALHC)