1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 171 OF 1993 Gangadhar Gyanoba @ Gyansing Latke Age : 21 years, Occ : Agri., R/o Degloor, Dist.Nanded. Appellant V/s 1. Gangaram S/o Henmanlu Royalwar Age : 43 years, Occ : Agri., R/o Degloor, Dist.Nanded. 2. Gyanoba @ Gyansing S/o Gangaram Latke, Age : 63 years, Occ : Agri., and retired police constable, R/o Degloor, Dist. Nanded. 3. Nanak S/o Gyanoba @ Gyansing Age : 12 years. 4. Balaji S/o Gyanoba @ Gyansing Age : 10 years, Respondent No.3 and 4 Minors U/G ship of their Real mother- Bhamabai keep of Gyanoba @ Gyansingh Age : 41 years, Occ : Househld, R/o Degloor, Dist. Nanded. Respondents ------------------------------------------------------ Mr. A.G. Godhamgaonkar, Advocate for appellant. Mr.M.V. Deshpande, Advocate for respondent nos.1 to 4. ------------------------------------------------------ (CORAM : V.R. KINGAONKAR,J.) DATE : 26th November, 2009. ORAL JUDGMENT : 1. This is plaintiff’s appeal against concurrent judgments rendered by learned Civil (J.D.), Degloor in 2 suit (R.C.S. No.615/1992) which was confirmed by First Appellate Court. The Trial Court dismissed his suit for perpetual injunction and declaration about ineffectiveness of decree rendered in earlier suit (R.C.S. No.150/1982) and cancellation of sale deed executed by the defendant nos.3 and 4 in favour of the defendant no.1 on 21.11.1985. 2. Undisputedly, the suit house bearing Municipal No. 4-2-77 situated at Degloor was held by the plaintiff’s father, namely, Gyanoba @ Gyansing Latke i.e. Defendant no.2. The defendant nos.3 and 4 are the minors sons allegedly born to defendant no.2 and Bhamabai. There is no dispute about the fact that the plaintiff is son of Kamalbai, who was wife of defendant no.2 Gyanoba @ Gyansing. The defendant no.1 is purchaser of the house property under the sale deed dated 21.11.1985 executed by defendant nos.3 and 4. 3. The real dispute centers around disputed status of Bhamabai i.e. mother of the defendant nos.3 and 4 as well as her competency to represent the plaintiff as his next friend in the earlier suit 3 (R.C.S. No.150/1982) filed against the defendant no.2 for partition and separate possession, which ended in a compromise decree. 4. Briefly stated, the plaintiff’s case is that he is the only legitimate son of the defendant no.2. He was minor when the previous suit (R.C.S. No. 150/1982) was filed by Bhamabai as his next friend for himself and defendant nos.3 and 4 together, seeking partition and separate possession of the ancestral property which was in the hands of the defendant no.2. Though Bhamabai was not his guardian yet she obtained a collusive decree against the defendant no.2 for partition and separate possession. She had also filed a collusive civil action for separate maintenance allowance and had obtained the maintenance decree in collusion with the defendant no.2 though she was not entitled to claim any maintenance allowance because she is only mistress of the defendant no.2. 5. The plaintiff alleged that though his natural mother was alive, at the relevant time, yet by playing fraud, false and collusive suit for partition was 4 filed by Bhamabai vide R.C.S. No.150/1982. The defendant nos.3 and 4 alienated the open space which is part of Gat No.1277 in favour of the defendant no. 1. They were not competent to sell the said open space to the defendant no.1. 6. The plaintiff alleged that he was in possession of the suit property. He alleged that the defendants were causing obstructions in his peaceful possession on the basis of the collusive decree and the sale deed executed by the defendant nos.3 and 4 in favour of the defendant no.1. Consequently, he sought declaration that the previous decree (R.C.S. No. 150/1982) was not binding on him and the sale deed dated 21.11.1985 was liable to be cancelled. He further sought injunction against the defendants from the disturbing his possession. 7. By filing written statement (Exh.11), the defendants jointly resisted the suit. They categorically denied that Bhamabai is mistress of the defendant no.2. According to them, Bhamabai is the legally wedded wife of the defendant no.2 whereas 5 Kamalbai, who was the mother of the plaintiff, was his second wife. They admitted that the suit house property was the ancestral property of defendant no.2 Gyanoba @ Gyansing. They submitted that Bhamabai was competent to file suit on behalf of the minors as their next friend. They contended that there was no element of fraud, whatsoever, in bringing about the compromise decree in R.C.S. No.150/1982. It was their case that the partition decree was brought about in order to protect the interest of the minor plaintiff and defendant nos.3 and 4. They submitted that major portion of the house property, which was being used for residential purpose, was allotted to the share of the appellant(plaintiff) whereas, the open space was allotted to the share of the defendant nos.3 and 4. They alleged that the defendant is bonafide purchaser for valuable consideration and is in possession of the open space as a purchaser thereof. They contended that the plaintiff’s suit was liable to be dismissed because the compromise decree (R.C.S. No.150/1982) operated as legal embargo and same could not be challenged unless the terms of compromse were shown to be unlawful or against the public policy. 6 8. The Trial Court framed necessary issues below Exh.31. The parties adduced oral as well as documentary evidence in support of rival contentions. The Trial Court came to the conclusion that there was no material on record to infer fraud committed by Bhamabai while filing of earlier suit and obtaining the decree in R.C.S. No.150/1982. The Trial Court further held that the suit plot was legally alloted to the share of the defendant nos.3 and 4 and hence, they were competent to alienate the same in favour of the defendant no.1. In keeping with such findings, the suit came to be dismissed. The First Appellate Court also confirmed the findings of the Trial Court and dismissed the appeal. 9. While admitting the second appeal, the ground Nos.I to VII shown in the appeal memo were considered as substantial questions of law. Instead of reproducing those grounds, after hearing learned Counsel, I deem it proper to I redraft the substantial questions of law as follows :- 7 (i) Whether in the facts and circumstances of the present case, it is proved that Bhamabai was not competent to represent defendant nos. 3 and 4 in the previous suit (R.C.S. No. 150/1982) as their next friend/guardian and that she brought about collusive decree in the said suit ? (ii) Whether in the facts and circumstances of the present case, the previous compromise decree in R.C.S. No.150/1982 is inoperative on the rights of the appellant (plaintiff) and hence she was entitled to seek the declaration and injunction as prayed for ? 10. Before I embark upon scrutiny of the evidence, it is pertinent to note that the plaintiff’s father is supporting the alienation made by the defendant nos.3 and 4 in favour of the defendant no.1. The plaintiff’s father also supports the previous partition decree rendered in R.C.S. No.150/1982. There is absolutely no reliable evidence to infer fraud committed by the defendant nos.3 and 4 or Bhamabai while entering into compromise in the earlier suit (R.C.S. No.150/1982). The pleadings of the plaintiff would show that the plea of fraud is put forth merely 8 on the ground that natural mother of the plaintiff (appellant) was alive at the relevant time and yet said Bhamabai represented herself as his guardian as well as that of the appellant nos.3 and 4. Infact, the pleadings of the appellant (plaintiff) do not make out any case of fraud in the context of earlier decree rendered in the suit bearing R.C.S. No.150/1982. The relevant pleading appearing in the plaint are thus: “that in the year 1982, the defendant no.2 got filed a false suit showing the present plaintiff, and defendant nos.2, 3 and 4 under the guardianship of said Bhamabai bearing RCS No.150 of 1982. In fact the keep Bhamabai was not at all competent to act as the guardian of the present plaintiff in that suit when his natural guardian the mother Kamalabai is alive till today. In that suit the defendant no.2 filed a compromise petition without the knowledge of the present plaintiff or his natural guardian. As per the terms of the compromise, it was shown that the plaintiff was allotted a share in the house no.4-2.77 situated at Degloor as a vacant place along with the tin shed”. 9 The above pleadings do not come within the ambit of Order 6 Rule 4 of the Civil Procedure Code. The plea of fraud can not be lightly put forth. It is necessary to give particular of the plea of fraud. Order 6 Rule 4 of the Civil Procedure Code reads as follows :- “Order 6 Rule 4 : Particulars to be given where necessary :- In all cases in which the party pleading relied on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.” 11. The tenor of the pleadings of the appellant (plaintiff) go to show that he attributed the blame of so called false suit to the defendant no.2 i.e. his father. He did not say that Bhamabai committed fraud on the Court. What he alleged were that the defendant-2 Gyanoba @ Gyansing got filed false suit 10 through Bhamabai, who represented himself and the defendant nos.3 and 4 as guardian. This part of his pleadings ought to be properly appreciated. For, it was his case that the father got divided the ancestral house property through compromise decree which was brought about by representing him and the defendant nos.3 and 4 through Bhamabai. 12. At this juncture, it may be stated that the father has power to effect partition of the properties of the joint hindu family. The only limitation on the power of the father is that when there is grossly inequal partition, minor coparcener may seek due share by reopening of the partition. The partition may be effected by the father during his life time as enumerated under section 323 of the Hindu Law (By Mulla-17th Edi. at 516). It is well settled that consent of the sons is not necessary to exercise such powers by the father. In “P.N. Venkatasubramania Iyer and others V/s P.N. Easwara Iyer and others” (AIR 1966 Mad 266), it was held that the partition effected by the father will be binding on the sons. However, where the distribution is unfair or inequitable distribution 11 without bringing in to the hotchpot for re-adjustment all the properties, then the partition will have to be set aside absolutely. The minor son may challenge the partition if it is unequal or unfair. However, such partition can not be challenged if it is effected by the father in keeping with interest of minor sons. In fact, the pleadings of the appellant (plaintiff) go to show that the partition suit was brought about at the instance of the father i.e. the Defendant No.2. Obviously, he may have the right to challenge the partition and seek reopening of the partition, if it was his case that the same was unfair and unequal. The partition decree can not be avoided only on the ground that the plaintiff was then minor and was not represented by their natural guardian i.e. mother. 13. The material placed on record would show that constructed portion of the house property was allotted to the share of the plaintiff (appellant) under compromise decree, whereas the small open space was allotted to the share of the defendant nos.3 and 4. Whether the defendant nos.2 and 3 are legitimate sons of the defendant no.2 or that they are illegitimate 12 sons will not cause much difference. The reason is not far to seek. The defendant no.2 and Bhamabai were residing together for number of years. By invoking the presumption available under section 112 of the Evidence Act, it can be gathered that they were recognised as husband and wife. It is well settled that the law presumes marital status of the persons of opposite sex when they are found residing together under same roof for considerable period. There is no presumption about their relationship as `man’ and his `mistress’. It is difficult to say, therefore, that Bhamabai was keep of the defendant no.2. Even assuming that she was second wife of the defendant no.2 then also the defendant nos.3 and 4 were eligible to claim their due share from the property inherited by the defendant no.2 as provided under section 16(3) of the Hindu Marriage Act. 14. On behalf of the appellant, learned Counsel would submit that the representation of the plaintiff by Bhamabai was impermissible inview of section 6 of the Hindu Minority and Guardianship Act, 1956. He would point out that the natural mother of the 13 plaintiff (appellant) was the only competent person to act as his guardian. As stated above, the suit for partition was brought about by the father as per the pleadings of the plaintiff. The father was instrumental in filing of the suit through Bhamabai as the guardian or next friends of the defendant nos.3 and 4. In such a case, the question is not whether Bhamabai could act as guardian of the plaintiff. The question is whether she could act as next friend of the plaintiff for filing of the suit in question. There is distinction between the suit or application for custody of minor by guardian and suit for partition or protection of rights of minors. Both the courts below held that Bhamabai was competent to act as next friend of the plaintiff at the relevant time and the suit could be filed under Order 32 Rule 1 of the Civil Procedure Code. The provision of Order 32 Rule 1 allows filing of a suit by a minor through “next friend”. The qualification to act as next friend is set out in Order 32 Rule 4. On consideration of Rule 4(1) it is manifest that any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit. 14 Only legal embargo on such action is that the person must not have adverse interest against the minor. So, the representation of minor in such a suit can be by a person who does not have any adverse interest against the minor and for the purpose of a suit the said person would be deemed as guardian of the minor though he or she may not be his de jure guardian. In other words, by legal fiction enumerated in Rule 4(1) of Order 32 of the Civil Procedure Code, Bhamabai was competent to represent the plaintiff (appellant) as his guardian in the earlier suit bearing R.C.S. No. 150/1982. There is no reliable evidence on record to infer any adverse interest of Bhamabai against the appellant (plaintiff) nor there is any reason to infer that the plaintiff was given prejudicial treatment or unequal treatment while effecting the partition. Under these circumstances, the impugned judgments are quite legal and proper. 15. In the result, the appeal fails and hence is dismissed. No order as to costs. (V.R.KINGAONKAR) JUDGE GAS/sa171.93