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Report No. 69

V. Need for Amendment and Possible Objections

16.128. No practical difficult majority view.-

The above discussion would seem, prima facie, to justify an amendment of the law and adoption of the majority view.

16.129. No doubt, a proposal which is theoretically desirable must also be tested on the touchstone of feasibility. If there are serious practical difficulties likely to be created by an amendment, that consideration cannot be lightly brushed aside. In this case, fortunately, no serious problems have arisen so far, in those jurisdictions where the majority view is the prevailing law. In Calcutta, for example, ever since the decision of Amer Ali1, reported in 1895, this has been the law, and as was pointed out by Meredith J. in the Patna case2, this has not caused practical difficulty of a serious nature Meredith J. said in the Patna case3:

"Then, with regard to the statement that Indian Judges have underrated the danger and inexpediency of destroying the finality of decrees duly obtained in suits against minors, I would only say that, taking for example Calcutta, the right of minors to question the finality in suitable cases for gross misconduct has been uniformly recognised for over 50 years, but the skies have not fallen."

1. Lala Sheo Churn Lai v. Ramandan Dobey, 1895 ILR 22 Cal 8.

2. Kamakshya v. Baldeo Singh, AIR 1950 Pat 97.

3. Kamalcshya v. Baldeo Singh, AIR 1950 Pat 97 (107, 109) (Majority view).

16.130. Objections considered-third parties' rights.-

We may now consider several possible objections to the proposed amendment. One objection raised to the proposed amendment is that third parties should not be penalised for the default of the guardian. This objection was anticipated, and effectively met, by the discussion in the judgment of Mahajan J. in the Lahore case. His observations as to likelihood of prejudice to third parties are instructive1.

"Judgments inter partes cannot ordinarily be subject to a collateral attack except in cases of fraud and collusion and the question is whether in view of the special protection that law gives to infants, gross negligence of a guardian-ad-litem ought not to be placed on the same footing as a plea of fraud and collusion. The principle on which a judgment can be collaterally attacked on the plea of fraud is that the Court was unable to do justice, having been misled or deceived. It is said that fraud and justice do not stand together. The classical quotation on this point is that fraud is an extrinsic or collateral act with vitiates the most solemn proceedings of Courts of Justice.

In cases of fraud and collusion blame, however, does not rest alone on the guardian, it also rests on the opposite party, while in the case of gross negligence by a guardian the opposite party may be thoroughly innocent. This circumstance, however, in my judgment cannot stand in the way of the extension of the same principle to the case of a minor whose property has gone into the pocket of his adversary merely by reason of a complete thoughlessness on the part of his guardian and as a result of a breach of duty on his part, and that but for such dereliction of duty the opposite party would never have got that property.

No litigant has any right to profit by or to deprive a minor of his property simply by reason of the fact that the person entrusted with the duty to protect the interests of a helpless infant has misbehaved. Misbehaviour of a trustee of a minor can confer no rights on his opponent which in law and justice he does not possess. A court is precluded from administering justice because of the gross negligence of the person entrusted with the duty of protecting the minor's interest and if this circumstance causes failure of justice, surely it cannot be said that rules of adjective law could stand in the way and so result in the perpetuation of injustice.

The rule of finality of judgments and the proposition that there cannot be a collateral attack on them are, after all, matters of adjective law and based on considerations of expediency and cannot obstruct the administration of justice. To avoid a judgment on the ground of fraud and collusion is a well-recognised substantive right of a litigant, and so far as I can see such a substantive right exists in the case of minor litigants on the ground of gross negligence of a guardian as they have to depend for representation of their cases on others. In other words, on the ground of gross negligence of guardians they have a right to have the judgment vacated."

1. Iftikhar Hussain v. Beant Singh, AIR 1946 Lah 233 (243).

16.131. Remedy against the guardian not an adequate answer.-

Another point raised by way of objection to the proposal is that the minor can sue his guardian for negligence. This argument presupposes (a) that the minor has such a cause of action, and (b) that it is adequate.

16.132. The argument that a minor's remedy is against the guardian, was met in these words by Mahajan J. (as he then was) in the Lahore case1 already referred to-

"In the first place, a suit for damages against a court official guardian or the mother or some distant uncle may be purely an illusory remedy. A guardian-ad-litem appointed by a court, on the other hand, undertakes an onerous duty and it cannot be said that he guarantees some skill in the discharge of his duty. His indifference in the conduct of the minor's case may not make him liable in tort for damages. Be that as it may, the remedy of a suit of this nature can seldom be suggested. It would certainly frighten away all cautions persons from undertaking responsibility for the conduct of cased on behalf of or against minors and a stage might be reached when no one, except court ahlmad or court reader, who knows nothing about the facts of a case, has to be entrusted with the duty to protect the minor and he can never satisfactorily discharge that duty."

1. Iftikhar Hussain v. Beant Singh, AIR 1946 Lah 233 (244).

16.133. Apart from what Mahajan J. has stated, we may appoint out that even assuming that the minor has a remedy against the guardian, that is not a conclusive argument against the law recognising the right to question the decree. That remedy may not be adequate in the circumstances, either because the guardian is a man without means or because the decree is of such a nature that monetary compensation cannot be an adequate recompense.

16.134. Rationale.-

The true rationale of the proposed amendment is that a minor is not bound by any proceedings taken against him during his minority unless he was a party thereto an effectively represented therein.1

1. Compare discussion in Ram Udai Singh v. Ram Surat Singh, AIR 1948 Pat 281 (285), para. 15, supra.

16.135. In the English case of Bennet v. Lee, 26 English Reports 717, Cited in Iftikhar Hussain v. Beant Singh, AIR 1946 Lah 233 (241), it was pointed out that an infant has to make the best defence the nature of the case will allow, for, when infants come of age, they are certainly entitled to put in a ntgv answer and to make a better answer if they can. It was pointed out in that case that the infant cannot, in justice, be refused from putting in a better answer and making the best defence he can.

16.136. Whether gross negligence should not be a defence.-

Another objection raised to the proposal is that a suit may be brought to set aside a decree, but gross negligence should not be a defence to the decree. In answer to his objection, it may be stated that if a judgment can be set aside on the score of want of effective representation, the ground should be available to both the sides.

16.137. It may be noted that in some cases, judgments have been ignored1because of gross negligence, though there was no affirmative suit to set them aside. In a Bench decision of the Madras High Court2 Shankaran Nair and Spencer JJ. held that a minor is not bound by a decree in a suit against him, if he is able to show that his guardian was guilty of gross negligence in the conduct thereof. In that case, a guardian deliberately set up the false plea of adoption, and neglected to put forward the rights of the minor under a will to the adoptive father, though he was aware of that will.

It was held that decreeing of the properties in the suit in favour of the testator's widow, on a finding that there was no adoption, would not operate as res judicata against the minor in a suit subsequently brought by him for recovering one half of the properties under the will in view of the gross negligence of the guardian in not putting forth the one half share under the will.

1. See (a) Mathura Singh v. Ram Sudraprasa, 1935 ILR 14 Pat 824 (836) (Collateral attack). (b) Subbana v. Narasamma, AIR 1915 Mad 384 (Collateral attack).

2. Subbanna v. Narasamma, 27 Mad LJ 486: AIR 1915 Mad 384 (case of gross negligence pleaded as a defence).

16.138. In Seton's judgments and orders1, it is stated that in case of gross negligence, the infant plaintiff has been allowed to show cause against a decree dismissing his bill, and this applies to infant defendants also.

1. Seton on Judgments, 7th Edn.. p. 939, cited in AIR 1939 Born 66 (72).

16.139. If a suit can be brought, then there is all the greater reason for allowing it as a ground of defence. The party questioning the judgment, merely says that it should be disregarded for the purpose of the litigation in question, i.e., that it should be excluded from evidence. In other words, it should be open to the minor-

(1) by a regular suit to set aside the judgment founded upon the gross negligence, or

(2) to bring a fresh suit on the same subject, the relief claimed being a substantive one, or

(3) if a suit is filed by the adversary in reliance on the judgment, to ignore the judgment on the ground of gross negligence.

16.140. Other grounds of attack.-

It has been stated that there are other cases in which judgment can be questioned. But we may state that if there is any obscurity or conflict revealed by judicial decisions in relation to any particular ground, these also could be considered. We may say that we have found non€ except those already discussed.

16.141. Instruments.-

Another objection raised was that even an instrument may be Instruments, cancelled on the ground of fraud, and that case would not be covered by the proposal. Now, it may be pointed out that section 44 occurs in the group of sections dealing only with judgments. The question of cancellation of instruments is outside the scope of that group of sections. If a judgment is relevant, section 44 tells us what evidence can be adduced to destroy its effect. Sections 40-44 are not concerned with instruments in general, emphasis has been placed on the fact that section 44 does not mention gross negligence.

16.142. Summary of reasons justifying the amendment.-

So much as regards the merits of the proposed amendment. The placing of the proposed amendment is a matter of detail. One reason for dealing with this subject making by an amendment of the Evidence Act, is that in the minority view.1

1. For example, see the dissenting judgment of Boys, J. in Siraj Fatma v. Mahmood Ali, Al 1932 All 293.

Indian Evidence Act, 1872 Back

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