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2006 DIGILAW 872 (RAJ)

Seva Ram v. State of Rajasthan

2006-03-20

DINESH MAHESHWARI

body2006
Judgment Dinesh Maheshwari, J.-This Writ Petition involves the question about competence and fate of an appeal filed by defendants-appellants in which one of the appellants was a minor; but who was not represented by any guardian in the trial Court and was not even described as minor in the suit or in the appeal initially. The question arises on the facts and in the circumstances narrated in brief hereafter. 2. The petitioners Seva Ram, Gurdeva Ram and Mana Ram are sons of Kishan Singh alias Krishan Singh. The father of the petitioners Kishan Singh filed a suit under Section 88, 53 and 183 of the Rajasthan Tenancy Act joining his brother Santa Singh, his sisters Pratap Kaur and Nihal Kaur and so also his sons, the present petitioners, as Defendants No. 1 to 6. The dispute relates to 26 bighas of land in Chak 1 DBL A that was allotted to Hari Singh, father of the plaintiff and grandfather of the petitioners. It was alleged in the plaint that the said Shri Hari Singh executed a Will on 07.07.1990, bequeathing the said land in equal share to the plaintiff and the Defendant No. 1 i.e., the sons of the testator; that the said Will was revoked on 30.07.1990 and a fresh Will was executed wherein Hari Singh bequeathed 10 bighas of land to both his sons and remaining 16 bighas of land to his grand sons, Seva Ram, Gurdeva Ram and Mana Ram, the present petitioners; and that Hari Singh expired on 012.1992. The plaintiff Kishan Singh alleged the Defendant No. 1 Santa Singh was having rights over 5 bighas of land only but he was retaining possession over 8 bighas of land and it was claimed in the suit that the holdings be divided and separate possession be delivered to the parties concerned. 3. The Defendant No. 1 Santa Singh resisted the suit by filing written statement and so also a counter claim and inter alia, it was asserted that the property in question was an ancestral property having been allotted to Hari Singh in lieu of his ancestral property left in Pakistan at the time of partition and no Will could have executed in relation to the land in question. It appears that another written statement was filed on behalf of the present petitioners with counter claim, but the averments therein have not been clarified on record. It appears that another written statement was filed on behalf of the present petitioners with counter claim, but the averments therein have not been clarified on record. Be that as it may, the learned Sub-Divisional Officer, Hanumangarh after considering evidence of the parties came to the conclusion that the property in question was an ancestral property and no Will could have executed in relation thereto; that the Will dated 30.07.1990 was surrounded by suspicious circumstances; and that the plaintiff and Defendant No. 1 were entitled to half share each in the property in dispute. The learned Sub-Divisional Officer, by the Judgment and decree dated 20.01.1997 (Annexure-1) proceeded to declare the plaintiff and Defendant No. 1 having equal shares in 26 bighas of land in question and directed the Tehsildar concerned to propose division with reference to the classification of land. 4. Against the Judgment and decree dated 20.01.1997 aforesaid passed by the Sub-Divisional Officer, Hanumangarh an appeal was submitted on 01.02.1997 to the Revenue Appellate Authority, Hanumangarh in the name of present petitioners Seva Ram, Gurdeva Ram and Mana Ram and the plaintiff Krishan Singh father of the appellants and so also the other defendants were joined as respondents. .5. On 22.08.1997 an application was moved by the Counsel for the appellants stating that the Appellant No. 3 Mana Ram was a minor and inadvertently the appeal was filed by him; the father of the appellant was a respondent in the appeal and there was no other person for prosecuting the case on his behalf and, therefore, a guardian ad litem be appointed for protection of the interest of the minor. It was contended that in the trial Court, the suit was instituted and decided without appointment of guardian for the minor defendant, although the suit was filed by none other than the father of the minor Mana Ram; no question regarding minority of Mana Ram was raised by any party before the Court else a guardian ad litem would have been appointed; that the defendant Santa Singh filed a counter claim that too amounts to a suit and it was his duty also to get the guardian appointed. The Counsel representing the appellants submitted that after examining the school certificate of the Appellant No. 3 Mana Ram, it became clear that he was still a minor and, therefore, application was submitted for protection of his interest. The Counsel representing the appellants submitted that after examining the school certificate of the Appellant No. 3 Mana Ram, it became clear that he was still a minor and, therefore, application was submitted for protection of his interest. The submissions so made were opposed on behalf of the Respondent No. 2 Santa Singh with the submissions that the suit was filed by Kishan Singh only for the benefit of his sons and he alone was aware about the fact whether Mana Ram was minor or not. It was further contended that the appeal had been filed on 01.02.1997 joining Mana Ram as appellant and because minor cannot continue with the proceedings without guardian, therefore, the appeal cannot be said to .have been properly constituted; and that the application moved on 22.08.1997 for appointment of guardian of Mana Ram after about 6 ½ months of filing of the appeal was not competent because if any guardian was appointed now, the appeal would be deemed to be filed from the date of filing of the application and would stand barred by time. It was also contended that if the appeal was treated not to have been filed by Mana Ram, as his interest was not divisible, the appeal was liable to be dismissed in toto. 6. The learned Revenue Appellate Authority proceeded to uphold all the objections raised on behalf of the contesting respondent and was of opinion that within the period of limitation, no proceedings were taken for appointment of guardian of Mana Ram; that the application moved after 6 ½ months was barred by time; and that the interest of minor was not divisible from his brothers and, therefore, the entire appeal was rendered incompetent and proceeded to dismiss the entire appeal by the impugned order dated 212.1997 (Annexure-2). The same reasonings, logic and considerations found favour with the learned Member of the Board of Revenue and on the same considerations, learned Member of the Board proceeded to reject the revision petition filed by the petitioners by the order dated 112.2002 (Annexure-3) with the observations that there was no illegality or jurisdictional error in the order passed by the Revenue Appellate Authority. 7. 7. The present writ petition has been submitted by the defendants Seva Ram, Gurdeva Ram and Mana Ram assailing the orders passed by the learned Revenue Appellate Authority and learned Member of the Board with the submissions that the description of the Petitioner No. 3 has no bearing on the competence of the appeal and rather it was the duty of the Court to rectify the mis-description and to permit the appeal to be continued. The orders passed by the authorities below have been supported on behalf of the contesting respondent Santa Singh with the submissions that the appeal was fundamentally incompetent; that even in the memo of appeal, the Petitioner No. 3 was not shown as minor though the fact of his minority was very much within the knowledge of other two petitioners; and that allowing of the application filed on 22.08.1997 would have had the effect of making the appeal of the Petitioner No. 3 time barred and as relief claimed by two other appellants was indivisible, the appeal was required to be and has rightly been dismissed in toto. 8. Having heard learned Counsel for the parties and having examined the record of the case and the law applicable, this Court is clearly of opinion that the learned Revenue Appellate Authority and so also the learned Member of the Board have proceeded with substantial illegalities and with errors apparent on the face of record and the impugned orders resulting in manifest failure of justice cannot be sustained. 9. A bare look at the approach of the learned authorities below makes it apparent that the learned authorities have chosen to misconstrue and misapply the provisions meant for safeguarding and protecting the interests of minors who are considered under legal disability to prosecute any litigation by themselves. Squarely contrary to the very object and purpose of the provisions of Order 32 of the Code of Civil Procedure, the bona fide application dated 22.08.1997 for correct description and representation of minor defendant-appellant has itself been decided by the authorities below so as to defeat all the rights and interests of the minor, and so also of the co-appellants-defendants. Squarely contrary to the very object and purpose of the provisions of Order 32 of the Code of Civil Procedure, the bona fide application dated 22.08.1997 for correct description and representation of minor defendant-appellant has itself been decided by the authorities below so as to defeat all the rights and interests of the minor, and so also of the co-appellants-defendants. The order impugned passed by the Revenue Appellate Authority runs squarely contrary and opposite to the requirements of law and learned Member of the Board has proceeded to endorse and affirm the same without even looking into the law applicable to the case. .10. A reference to the frame of the suit makes it apparent that if at all anything suffered in competence because of minor have not been correctly described and his interest having not been watched by the guardian, it were the suit and the counter claim; and if the fact of Mana Ram defendant being a minor is admitted correct and when it is not in dispute that he was not represented by guardian ad litem, in that event, no decree in the suit or the counter claim could have been passed against his interests. A bare look at the Judgment delivered by the Sub-Divisional Officer, Hanumangrh makes it apparent that the Will propounded by the plaintiff Kishan Singh has been held to be invalid and such a finding directly operates against the interest of the minor who is shown to be one of the legatees under the said Will. In this view of the matter, if anything suffered from competence because of minority of Mana Ram, the suit and counter claim both were liable to be dismissed. A decree passed against a minor not properly represented must be regarded as a decree passed against a person who was not a party to the suit and would, therefore, be nullity (vide Ambrish Kumar vs. Sita Ram, AIR 1998 .Rajasthan 21). 11. A decision in Sawan Ram vs. Nachittar Singh, AIR 1952 Pepsu 63, has been relied upon by the learned authorities below to conclude that the appeal on behalf of minor without next friend would not be deemed to be properly presented and if next friend is appointed later, the appeal would be deemed to be presented on the date of such appointment. However, the learned authorities below seems to have not even examined that in the said case of Sawan Ram (Supra) the next friend of the minor plaintiff did not appeal against the decree and instead the first appeal was filed by mother of the minor as his next friend. In that context, when the objection was taken about competency of the mother to prefer the appeal, the Counsel applied to the Court for removal of previous next friend and appointment in his place of the mother of the minor as his next friend and this application was accepted by the District Judge dealing with the appeal. The District Judge also ordered that appointment would relate back to the date on which the appeal was originally instituted and added, apart from these observations, that delay in presentation of the appeal was condoned. The objection taken in second appeal was that when a next friend had been appointed for the minor plaintiff , such appointment continues for the whole of the lis or until it is revoked by the Court or until the next friend is removed and it is the next friend alone who could prefer an appeal on behalf of the minor. With reference to the observations made by the District Judge, It was pointed out by the High Court that though the appointment of mother as next friend would take effect only on the date it was made and consequently the appeal would be taken to have been instituted only on the day minors mother was appointed, as his next friend, however, the learned District Judge had ample powers to extend the time and such exercise of discretion by the District Judge in extending the time under Section 5 of the Limitation Act was regarded as proper. Operation of the rules of procedure to subserve the cause of justice would have been apparent to the learned authorities below on a close examination of very same decision in Sawan Rams case sought to be relied upon. 12. This Court is clearly of opinion that in the fact situation of the present case, the application for appointment of next friend for the minor Appellant No. 3 could have been granted and delay in submission of the appeal could have been condoned so as to consider the appeal on merits. 10.13. 12. This Court is clearly of opinion that in the fact situation of the present case, the application for appointment of next friend for the minor Appellant No. 3 could have been granted and delay in submission of the appeal could have been condoned so as to consider the appeal on merits. 10.13. Moreover, when an application was moved before the learned first appellate Court pointing out the correct facts that out of the three appellants, Mana Ram was a minor and the appeal on his behalf may be permitted to be prosecuted by a next friend, even if the Court was not inclined to grant such a prayer, it is inexplicable that for that reason, the entire appeal would be dismissed as incompetent. Although there was no impediment and in view of the peculiar facts and circumstances of the case, the other brother of the petitioner who was a co-appellant and whose interest was not in conflict with minor appellant could have been permitted to act as next friend of the minor, yet for the sake of arguments, even if it be assumed that Mana Rams appeal would be deemed to be properly constituted only when a guardian is appointed to look after his interest, for that matter the entire appeal was not rendered incompetent. 114. An appeal against the decree could be preferred and maintained by any person aggrieved and even if some other person likely to be aggrieved does not join as appellant, it is not necessary that the entire appeal would be rendered incompetent; and, on the contrary, when a decree proceeds on grounds common to all the plaintiffs or the defendants, as the case may be, any one of the persons aggrieved may appeal from the whole decree and the appellate Court may reverse or vary the decree in favour of all the plaintiffs or the defendants, as the case may be. This Court is unable to countenance the proposition put forward by the learned revenue Courts that for such a defect and deficiency of misdescription or incompetence of one of the appellants, the entire appeal would be rendered incompetent. 115. The matter could have been viewed from yet another angle. Under the disputed Will, 16 bighas of land has been alleged to have been bequeathed to the petitioners. 115. The matter could have been viewed from yet another angle. Under the disputed Will, 16 bighas of land has been alleged to have been bequeathed to the petitioners. It has nowhere been shown that the interest of the Petitioners No. 1 and 2 was in any manner adverse to the Petitioner No. 3 in such a case, even if the minor was not correctly described in the suit and in the appeal as initially filed, his interest was fully represented by the Petitioners No. 1 and 2 and it cannot be said that their representing his interest was in any manner prejudicial to him. In any case, an appeal otherwise competent on behalf of Petitioners No. 1 and 2 was not rendered incompetent only for showing the Petitioner No. 3 as an appellant without his correct description. This Court has precisely pointed out in the case of Hemant Singh vs. Dushyant Singh, 1980 RLW 504, that,-“it is the inherent jurisdiction of the Court, and rather the Courts owes to itself a duty to watch and protect the interest of the minor, and in the exercise of that jurisdiction the Court can accept a person as a next friend of the minor or decline to accept him or her, as the case may be.” 16. In view of the peculiar facts and circumstances of this case, proper procedure was to have allowed one of the co-appellants, brother of the minor appellant, to continue the appeal acting as next friend for the minor; or in the alternative to transpose the minor as respondent and to have appointed guardian ad litem to protect his interest. In any case, the application could not have been rejected on the consideration that because of such application, the appeal would become barred by time. 17. This Court is clearly of opinion that if the said appeal of the Petitioner No. 3 joining the Petitioners No. 1 and 2 as appellants be construed as incompetent as held by two revenue authorities below, it would only be leading to an absurdity that the provisions intended to safeguard and protect the interest of minors themselves operate to defeat their interest. The impugned orders proceeding squarely contrary to the requirements of law and the very object and purpose of the provisions of Order 32, CPC, cannot be sustained and deserve to be quashed and the matter deserves to be remanded to the Revenue Appellate Authority for taking up the appeal afresh in accordance with law. 18. It has been pointed out in the writ petition that the Petitioner No. 3 Mana Ram has already attained majority. It shall be permissible for the parties to take appropriate steps before the Revenue Appellate Authority in that regard. It is also required to be made clear that nothing stated herein shall have any bearing on the merits of the case that shall be considered and dealt with by the learned Revenue Appellate Authority in accordance with law. 19. As a result of the aforesaid, this writ petition succeeds and is allowed to the extent indicated above. The impugned orders 212.1997 and 112.2002 are quashed and set-aside and Appeal No. 3/1997/223 RT Act shall stand restored with the Revenue Appellate Authority, Hanumangarh who shall proceed with the same in accordance with law. The parties shall appear before the Revenue Appellate Authority, Hanumangarh on 24.04.2006. In the circumstances of the case, parties are left to bear their own costs of this petition.