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Regular First Appeal No. 50 of 1951 decided on 8th Octo ber, 1954 from the decree of the Court of Chaudhry Azam Ali, Senior Civil Judge, Layallpur, dated the 30th March 1951.
S. 34‑Bar of section coming to notice in First Appeal‑Appeal meriting dismissal on other grounds Reference to Custodian not considered necessary.
The bar of section 34, Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949) came to notice in the course of First Appeal from a decree dismissing a suit against certain evacuees and others. The appeal merited dismissal on other all-round and was, accordingly, dismissed. Reference to Custodian of part of suit which was within mischief of section 34, was not considered necessary.
----Suing, on attaining majority, to set aside decree against him, in suit, by his guardian appointed by Court‑Suit can succeed only on proof of gross negligence by guardian in conduct of suit.
A minor, on attaining majority, instituted a suit to set aside a decree against him passed in a suit by his legal guardian impeaching a sale of land belonging to the minor and such guardian Held, that the suit can only succeed if the plaintiff substantiates gross negligence by the guardian in the conduct of the previous suit. In the absence of gross negligence, the earlier suit by the guardian will operate as res judicata.
Does not apply retrospectively.
The Usurious Loans Act came into force in 1918 and transactions previous to 1918 are not affected by its provisions.
Jiya Lal v. Rajindar Kumar A I R 1944 Lah. 115 ref.
S. 31----Permission by Court to sale of minor's property‑Minor cannot avoid sale unless there is fraud or underhand dealing.
Unless there is fraud or underhand dealing, a minor cannot avoid a sale of his property effected by his legal guardian after permission of the Guardian Court. The vendee is entitled to trust the permission and is not bound to go behind it to inquire as to the expediency or necessity of the sale.
Mohan Lal v. Muhammad Adil A I R 19 26 Oudh 88, Gangapershad Sahu v. Maharani Bibi I L R 11 Cal. 379 and Brij Rai Saran v. Alliance Bank, Simla A I R 1936 Lah. 1946 ref.
Mahmood Ali, Muhammad Iqbal Khan and Muhammad Siddique Khan for Appellant.
Nemo for Respondents.
This Regular First Appeal arises out of a suit filed by one Manzoor Hussain to set aside a sale of his property by his brother and guardian, Ashiq Hussain. The suit has been dismissed by the learned Senior Civil Judge, Layallpur, and Manzoor Hussain has appealed.
Jiwan Khan, the grandfather of Manzoor Hussain, was the owner of 1210 hanals of land in Chak No. 223/R.B., District Layallpur. By a mortgage‑deed, dated the 4th of June 1906 he mortgaged the whole of this land with pos session in favour of Bishan Singh, son of Narain Singh and Sham Singh son of Hari Singh, for a sum of Rs. 5,000. Subsequently by fourteen registered deeds Jiwan Khan received further sums from the two mortgagee on the security of this land. The last deed was of the 10th of June 1926 and the mortgage money at that time amounted to Rs. 1,18,800. Some time between 1926 and 1929 Jiwan Khan died and his property passed to his only son Muhammad Ali. By a registered‑deed, dated the 8th of June 1929, Muhammad Ali acknowledged the existing mortgage of Rs. 1,18,800 and also received Rs. 1,300 as further charge on the land agreeing to pay, at the same time, interest at Re. 1 percent per annum on Rs. 1,300. On the 5th of February 1936, Muhammad Ali applied to the Collector for permission to sell to non‑agriculturists some of his land in order to discharge the mortgage‑debt. On this application the Collector passed an order on the 3rd of March 1936 allowing Muhammad Ali to sell 356 kanals and 6 marlas out of squares Nos. 31, 32, 33 and 34. Muhammad Ali, it may be mentioned, was a Jat and belonged to a notified agricultural tribe. The area of land which the Collector allowed him to sell was regarded as sufficient to discharge the mortgage‑debt as the land is situated near Layallpur and the said area could be used for residential purposes.
Muhammad Ali died in 1937 before he could sell the land. He left behind him five sons: Ashiq Hussain, Shaiq Hussain, Faiq Hussain, Sadiq Hussain and Manzoor Hussain, the present plaintiff. The mortgaged land was mutated in favour of the five sons. Only the first two of these were major, the last three being at the time of the death of their father of 15, 13 and 7 years, respectively. Ashiq Hussain, the eldest of the brothers, applied on the 27th of October 1937 to the Senior Sub‑Judge, Layallpur, for being appointed a guardian of the property of the three minor brothers, Faiq Hussain, Sadiq Hussain and Manzoor Hussain.
The reason for appointment, as stated in the application, was that the land of the minors stood mortgaged and it was necessary that a part of the land be sold in order to redeem the rest. This application was accepted by an order dated the 17th of June 1938, and Ashiq Hussain was appointed guardian. He then applied for permission to sell the land of the minors and he was granted this permission by an order of the Senior Sub‑Judge, dated the 3rd of February 1938. Ashiq Hussain made efforts at first to sell this land to non‑agriculturists but for some reason or other failed. Ultimately he struck a bargain with the mortgagee and by a sale‑deed, dated the 10th of April 1942, 878 kanals out of the mortgaged land were sold to the two mortgagees on behalf of all brothers by Ashiq Hussain, Shaiq Hussain and Faiq Hussain, majors, Ashiq Hussain also acting on behalf of Sadiq Hussain and Manzoor Hussain, minors. Faiq Hussain minor had in the meantime attained majority. Out of the sale price, Rs. 1,20,000 was credited towards the mortgage‑debt, Rs. 500 were stated in the deed to have been received before the execution of the mortgage, and for Rs. 8,000 a cheque was received by the major vendors.
On the 18th of June 1943 a suit for a declaration that the sale‑deed was void was filed on behalf of all the sons of Muhammad Ali, of whom Manzoor Hussain and Sadiq Hussain were minors and were represented by their certified guardian, Ashiq Hussain. The sale‑deed was impeached on grounds of undue influence, fraud, and absence of consider ation. This suit was dismissed on the 26th of June 1944 and an appeal to the High Court by the plaintiffs was dis missed on the 8th of May 1947.
On the 3rd of December 1947, Sadiq Hussain, who had in the meantime attained majority, on his own behalf as well as on behalf of Manzoor Hussain minor filed another suit against the mortgagee for a declaration as to the invalidity of the sale on grounds to which a detailed reference will be made later. This suit too was dismissed on the first of December 1949. During the pendency of the suit, Manzoor Hussain had also reached the age of 21. No appeal against this decision was filed either by Sadiq Hussain or by Manzoor Hussain.
On the 19th of December 1949 the present suit was filed by Manzoor Hussain alone against Bishan Singh vendee and Narindar Singh, son of Sham Singh vendee, who are defendants Nos. 1 and 2, impleading his own brothers as defendants Nos. 3 to 6. In this suit Manzoor Hussain has impeached the sale as well as the two previous decrees. The grounds of attack are contained in paragraph 12 of the plaint which runs as below :‑
"12. That the sale‑deed, dated the 10th of April 1942 by defendant No. 3 as guardian of the plaintiff and the decrees in the two previous suits, dated the 26th of June 1944 and the 1st of December 1949 are ineffective against the rights of the plaintiff and are liable to be cancelled on the following grounds :‑
(a) That at the time of the sale‑deed defendant No. 3 although according to law major was young and was unable properly to understand matters involved and was in the clutches of defendants Nos. 1 and 2; otherwise in accordance with law 'only a small amount of money was required for redemption of the loan, for the mortgage money included a number of improper items to which defen dants Nos. 1 and 2 were legally not entitled. Also defendants Nos. 1 and 2 were only entitled to 7 percent interest per annum on the principal amount of mortgage but the said defendants had included in the mortgage money simple as well as compound interest and they had already realized such an amount from the rent of the land, that the whole of the interest and the major portion of the principal had already been paid up. Defendant No. 3 did not get legal advice with respect to this matter nor did he acquaint himself with the details of the mortgage‑deeds or the mortgage‑money but accepted the oral claim of defendants Nos. 1 and 2 that they were entitled to Rs. 1,20,000. Even at the time of the execution of the sale‑deed he had not asked for an account of the mortgage money or of the amount, which the mortgagee had already received from the rent of the property. In this way he was negligent as a guardian and injured the interests of the plaintiffs;
(b) that the attention of the Guardian Court was not directed towards the fact that the reason for appointment of the guardian, as stated in the application, was only this that the minority of the plaintiff and defendants Nos. 5 and 6 was an obstacle in the way of the sale of that property for which Ch. Muhammad Ali deceased had secured permis sion of the Collector for sale and it was only for the sale of this property that defendant No. 3 had been appointed a guardian. At the time of asking for permission for sale this had not been brought to the notice of the Guardian Court, nor was it brought to the notice of the Guardian Court at that time that the prices of land were going up. In fact the whole proceedings for obtaining per mission of the Guardian Court are due to the fraud and deceit of defendants Nos. 1 and 2 and the negligence of defendant No. 3;
(c) that the Guardian Court without asking for evidence as to by the sale how much property the mortgage‑money could be discharged, without getting the market value of the property ascertained, without notice to the relatives of the plaintiff and without fixing the area sold or the minimum rate at which it was to be sold, gave per mission for the sale which permission is not legal. In fact defendant No. 3 had been appointed a guardian for sale of land for residential purposes only and the sale‑deed dated the 10th of April 1942 exceeded his powers as a guardian;
(d) that by sharah or by law defendant No.. 3 was not entitled to sell immovable property of the plaintiff;
(e) that the defendant No. 3 filed the suit, dated the 5th of October 1,1943 without permission of the Guardian Court and on such grounds alone as will pertain to him. In that suit he did not take the pleas mentioned in (a) to (d), which concerned the minors. In this way, he was grossly negligent in protecting the interests of the plaintiff 'and prosecuting the suit. He was guilty of mis conduct and the decree in that suit does not bind the plaintiff; and
(f) that the suit, dated the 3rd of December 1947 had been filed by defendant No. 6 without the consent of the plaintiff on almost the same facts as the previous suit and had become next‑friend of the plaintiff without the permission of the Guardian Court. He did not at all prosecute the suit so far so that he did not produce any evidence to show as to how much money was due to defendants Nos. 1 and 2 according to law and that the permission for sale was invalid. In this way he was grossly negligent."
Defendants Nos. 1 and 2 in the suit are admittedly evacuees and did not appear. However, a written statement was filed by the Rehabilitation Authorities denying the claim of the plaintiff and generally traversing the allegations made with respect to the invalidity of the sale, the invalidity of the sanction and the invalidity of the decrees passed in the previous suits. The learned Sub‑Judge who tried the suit framed the following issues :‑---
(1) Is not the disputed property an evacuee property, and has the Civil Court jurisdiction to try the suit
(2) Did defendant No. 6 institute Civil suit No. 384/10 of 1947, of the Court of Chaudhry Muhammad Ali, Sub Judge 1st Class, Layallpur, without the consent of the plaintiff and without the permission of the Guardian Court, and was it necessary for defendant No. 6 to obtain the consent of the plaintiff and the permission of the Guardian Court for instituting the suit on behalf of the plaintiff If so, is not plaintiff bound by the decision of that suit
(3) Was defendant No. 6 guilty of gross negligence in the conduct of the said Civil Suit No. 684/10 of 1947 and is plaintiff on that ground not bound by the decision in that suit
(4) Is the plaintiff entitled to avoid the decision on the grounds, in issues Nos. 3 and 4, notwithstanding the facts that he attained majority in June 1949 and the said Civil Suit No. 684/10 of 1947 was decided on the 1st December 1949 and it was open to him to personall3b prosecute that suit on attaining majority and to prefer an appeal from its decision
(5) Did defendant No. 3 institute Civil Suit No. 67/10 of 1943 of the Court of Senior Sub‑Judge, Layallpur, without the permission of the Guardian Court If so, is the plaintiff on that ground not bound by the decision of that suit
(6) Was defendant No. 3 guilty of gross negligence and carelessness in the conduct of Civil Suit No. 67/10, and is the plaintiff on that ground not bound by the decision of that suit
(7) Was defendant No. 3 negligent as a Court Guardian of plaintiff and did he injure the rights of plaintiff, and is not plaintiff on that ground bound by the disputed sale, dated the 10th April 1942 .
(8) Did defendant No. 3 obtain the permission of the Guardian Court to the making of the disputed sale, dated the 10th April 1942, by committing fraud and misrepresent ation and by acting negligently If so, is not the plaintiff, on that ground alone, bound by the disputed sale
(9) Did the Guardian Court give permission to defendant No. 3 to make the sale without taking evidence as to the sale of how much land would be sufficient to pay off the mortgage‑money, that without estimating the value of the land and without fixing the lowest value and without send ing a notice of the guardian's application for permission to the relatives of the then minor plaintiff, and, is plaintiff, on these grounds, not bound by the disputed sale
(10) Was not defendant No. 3 empowered under law or custom to make the disputed sale as a guardian of the plaintiff
(11) Relief.
All the issues were found in favour of the defendants and the suit dismissed.
In so far as the plaintiff seeks the relief that the sale was void and the plaintiff is still owner of his own, share of the property the matter is not one within the cognizance of a Civil Court as defendants Nos. 1 and are evacuees. That is a matter within the exclusive jurisdiction of the Custodian and if this suit is to proceed all that the Civil Court can do is to refer that matter to the Custodian under section 34 of the Administration of Evacuee Property Ordinance. The only point with which we are to deal is the question whether any of the two previous suits operates as res--judicata and bars the present suit. It is obvious from para. 12 of the plaint that the plaintiff can succeed in getting rid of the previous decrees only if he succeeds in substantiating gross negligence by the guardian in the conduct of the previous suits. The position taken up before us by learned counsel for the plaintiff is that there were two strong points in favour of the plaintiff which were either not taken or not property supported by proof in either of the two suits and, therefore, the minors cannot be bound. These two points are :‑
(1) That on account of the fact that the mortgagee had been receiving the rent of the mortgaged property the whole of the interest and the major portion of the principal debt had been discharged. The rent received was to be regarded as interest and, therefore, could not exceed the amount of interest allowed by law, and on a proper taking of accounts a small amount only would be due to the mortgagee at the time of sale.
(2) That the permission to sell was altogether void and without jurisdiction because the learned judge of the Guardian Court did not apply his mind as to the necessity for the sale. He did not ascertain whether the amount alleged to be due to the mortgagee was really due and he did not specify in the order granting permission the area to be sold or the minimum price at which it was to be sold.
I will first take up the suit of 1943 and consider whether the decree in that suit is not binding on account of failure to take these two pleas. So far as the first plea is concerned it is clear from paras. 4 and 21 of the plaint that the plea as to the mortgage money including improper sums had been taken. Para, 21 enumerates the grounds on which the sale‑deed is attacked as being ineffective and void It runs :‑
" 21. that the sale‑deed, dated the 10th of April 1942 executed on the 10th of April 1942 and registered on the 11th of April 1942 on behalf of the plaintiffs in favour of defendants with respect to four squares of property mentioned in the heading of the plaint is ineffective and void as against the plaintiffs for the following reasons :‑
(a) that the sale‑deed was executed under undue influence;
(b) that in getting the sale‑deed executed the defendants had acted fraudulently because in lieu of Rs. 5,000, which the defendants had taken back from the plaintiffs in trust, they would return after a year the abadi deh, the mosque and the graveyard, the total area being five killas. On this misrepresentation the sale‑deed had been executed;
(c) that the mortgage‑money for which credit had been given to the mortgagee was made up of fictitious and improper items and it included a large sum on account of compound interest and rent;
(d) that defendant No. 1 and his father Sham Singh had no land in this district, nor were they residents of this district. Therefore the said defendants could not legally take any property, any mortgage or any sale from the plaintiffs. The defendants had, by deceiving the revenue authorities, got mutations sanctioned in their favour:
(c) does refer to the impropriety of the amount and of the interest which it included."
I find from the judgment of the High Court on appeal that the point had been pressed before the High Court too although it was rejected. I concede that one ground of impropriety of amount which is being pressed before us was not put forward. That ground is that even profits from the land, which a usufructuary mortgagee realises, are interest and in order to determine the amount due on the mortgage we should calculate interest on the sum advanced according to the rate allowed .by the Usurious Loans Act and deduct from the total of principal and interest the amount realised from the produce of land. But let us first examine the soundness of this plea. Is it correct that the rent received by the mortgagee is in this case to be regarded as interest The Usurious Loans Act came into force only in 1918 and transactions previous to 1918 are not, as held in Jiya Lal v. Rajindar Kumar (A I R 1944 Lah. 115), affected by its provisions. Here the first mortgage was entered into in 1906 and the possession of the whole of 1210 kanals was handed over to the mortgagee. The remaining mortgages are all further charges and generally contain a provision that the mortgagor is bound by the conditions of the mortgage of 1906. As the mortgagee was entitled to the produce of the whole of the land on account of the mortgage of 1906 the receipt of such produce or realisa tion of rent cannot be attacked on the ground that it amounted to a realisation of excessive interest. After the enactment of the Usury Laws Repeal Act of 1855 and before the enactment of the Usurious Loans Act there was no restriction on the rate of interest. On the other hand, section 2 of the Usury Laws Repeal Act provides that interest would have to be paid on the rate on which it was agreed to be paid. Section 4 of that Act completely covers the present case. It runs :‑
"A mortgage or other contract for the loan of money by which it is agreed that the use or usufruct of any pro perty shall be allowed in lieu of interest, shall be binding upon the parties."
This section expressly provides for the receipt by the mortgagee of profits in lieu of interest although a mere repeal of Usury Law would have been sufficient for there is other wise no legal bar to a person contracting to deliver possession of property in lieu of interest on the loan which he has received. If then the possession of the whole of the land in lieu of Rs.5,000 could not be attacked at all the whole argument with respect to there being improper amounts included in the mortgage money on account of receipt of profits is without force. (I may mention here that the mortgage of. 12th November 1917, which is not affected by the Usurious Loans Act, related to a sum of Rs. 48,642).
So far as the rate of interest on the further charges is concerned the point had been taken in the suit of 1943 and rejected. In any case on a consideration it will be found that there is no substance in the objection. Interest at the rate of one percent per mensem was mentioned only in three deeds of further charge only that is those of 4th January 1917, 12th November 1917 and 18th August 1918. By the deed of 4th January 1917 a sum of Rs. 1,361 only was to carry interest, by the deed of 12th November 1917 a sum of Rs. 1,757 was added to this amount and by the deed of 18th August 1918 a further sum of Rs.2,082 was added bringing the total amount carrying interest to Rs. 5,200. In the deed of 24th April 1920 the interest was altogether given up and henceforth mortgagee were entitled only to produce. It will be observed that the mortgages of 4th January 1917 and 12th November 1917 are not subject to the Usurious Loans Act.
The only attack that can be made is on the deed of 1918 by which Rs. 2,082 were to carry interest at one per cent per mensem. The rate of interest, though it was not excessive at the time the deed was executed, became excessive by the retrospective operation of the Punjab Relief of Indebtedness Act which made interest on secured loans excessive if it exceeded 7; per cent per annum. But the amount carrying interest is only Rs. 2,082 and it carried interest only up to 24th April 1920 and the excessive interest that was thus included in the mortgage amount is only Rs. 150. This excess cannot in any way affect the validity of the sale.
I find no force in the objection that the first plea was not taken in the suit of 1943. The case of the appellant on the plea with respect to the invalidity of the sanction is no better. The sanction has been attacked on two grounds. The first is that the mortgagee was guilty of a fraud and the guardian was negligent in allowing that fraud to be perpetrated. The story put forward is that the original application for sanction related only to 357 kanals of land for which per mission had been granted by the Collector and that after wards in the application an interpolation was made by which agricultural land was added and also words were put in praying for permission to sell or mortgage whole of the land of the minors. It is stated that the mortgagee had got these words introduced by the petition‑writer who had written the application without the knowledge of Ashiq Hussain and Ashiq Hussain negligently allowed such an application to be put in without acquainting himself with the addition that had been made. The second ground of the attack on the sanction is that the learned judge who granted the sanction did not apply his mind as to the necessity for the sale and as to the area which should be sold.
As regards the interpolation the learned trial Judge has gone into the question and rejected this story and I have no hesitation in agreeing with him. The story itself was not a probable one at all but P. W. 4 Imdad Hussain, the petition writer, who was produced by the plaintiff has himself stated that the addition had been made with the consent of Ashiq Hussain himself. It would really be difficult to suggest that although Ashiq Hussain got permission in accordance with which he sold 878 kanals, which included agricultural land, he himself did not know that he had applied for the sale of any land other than 357 kanals of land, which was fit for residential purposes. This story of fraud was not put forward in the suit of 1943 by Ashiq Hussain or in the suit of 1947 by Sadiq Hussain. If there was‑any truth in it there was no reason why it should not have been made a point of attack. The story appears to be an after‑thought.
As regards the plea that the learned judge did not apply his mind to the facts of the case I might quote here the order of the learned Judge verbatim in order to show that this plea is also, without force. It runs :‑
"This is an application under section 29, Guardian and Wards Act for permission to mortgage or sell or otherwise dispose of the share of the wards in the immovable property situate in the district comprising land and residential sites. The grounds on which the permission is sought are set forth in detail in the application. They are briefly that the wards' deceased father mortgaged his land and arranged to sell part of it for residential purposes, but he soon died thereafter before the sale. He had obtained permission from the Collector for the purpose being a member of an original tribe.
It is in the interests of the wards and for their benefit that the portion meant for sale for residential purposes, and if necessary some land too should be sold off as intended by their father and the mortgage‑money which is the lump of Rs. 1,18,800 paid off. Apart from being for the benefit of the wards, it appears to be a valid necessity also, as this may amount ought to be paid off and the land redeemed for proper maintenance of the wards. They have very little land left free of mortgage.
The guardian is the boy's own real elder brother and he and the other major brother both are disposing of their own shares as well. It was expressly with this object that the guardian had applied for his appointment, and the relations with that knowledge supported the application. There is, therefore, no necessity to notify the relation once again, or to impose any condition (torn) deposit in Court, etc., for that may affect the price.
I, therefore, accept the application and permit the guardian to mortgage or sell or in any manner dispose of the ward's share in any manner he thinks proper, in the immovable property in this district landed and residential both."
The learned judge clearly applied his mind to the necessity for the sale. He did not issue notice to any relation of the minors but he was not bound to do so by any provision of the Guardian and Wards Act and he has given a reason for his omission to issue notice. The reason is that the application for guardianship had been put in for the purpose of selling the land of the minors and the relations had appeared and supported the application. The learned judge had made it clear in the order that not only the land for residential purposes but other land had also to be sold which show that he had applied his mind to the question as to what price land would fetch and whether the sale of 357 kanals would be sufficient to discharge the debt. He did not specify the area which was to be sold or the amount for which it was to be sold but it is to be remembered that the land of the majors was also to be sold along with that of the minors. The guardian was the real brother of the minors and the learned Judge cannot be blamed if he did not suspect the bona fides of Ashiq Hussain. It has been argued on behalf of the appellant that the learned judge did not go into the question of the amount which was due on the mortgage and in fact this was one of the main points of attack but I have already gone into this question and shown that the amount was not liable to any serious attack. If any large amount which could not legally have been realised had been given credit for in the sale deed, no doubt, the Court would feel inclined at once to exercise whatever discretion it may have in the matter in favour of the minors. Another ground which had been put forward in this connection in the first suit and has even been argued in the present suit is that the land had been sold at a price lower than it could have fetched. This would again be a point in favour of the minors but I have no hesitation in agreeing with the lower Court that this is not made out on facts. Even in the first suit the High Court had on appeal come to the conclusion that no case for inadequacy of consideration had been made out. The High Court had observed in that judgment that no attempt had been made by the plaintiff to show that land of similar quality in the same area had been sold at higher prices. The same is the case in the present suit. No evidence has been led to prove the market value of the land sold. There is a statement by Maula Bakhsh (P. W. 8) that he offered Rs. 1,30,000 for 2 squares of land to Ashiq Hussain but, as observed by the learned trial Judge, these 2 squares of land are not identified. It may be, and in fact it had been urged on behalf of the Rehabilitation Department in the lower Court, that 1 squares, which have been retained by Ashiq Hussain etc. were the best part of the land and different parts of the land had varying prices.
Learned counsel for the appellant has relied on Mohan Lal v. Muhammad Adil (A I R 1926 Oudh 88) in support of the argument that the sanction for sale is void and of no effect. The law with respect to the validity of the sanction was laid down long ago in Gangapershad Sahu v. Maharani Bibi (I L R 11 Cal. 379) by their Lordships of the/Privy Council as below :‑
" A person, who advances money to a guardian on a mortgage of the minor's property, effected under sanction of the Court, is entitled to trust the Court's sanction and is not bound to go behind it and inquire as to the expediency D or necessity of the loan for the benefit of the minor's estate, unless there was fraud or underhand dealing, to which the mortgagee was a party."
This has been followed in a number of judgments of which I may mention a Division Bench decision of our High Court in Brij Rai Saran v. Alliance Bank, Simla (A I R 1936 Lah.946). In Mohan Lal v. Muhammad Adil there was not and there could not be any departure from the rule laid down by their Lordships of the Privy Council. The learned Judges found that there was underhand dealing as required by the Privy Council judgment. In that case there was a sale in favour of a pleader and the learned Judges found that he had abused his position as a pleader and had taken advantage of the confidence reposed in him by the Court. This will appear from the following extract from the judgment :‑
"The Judge held no inquiry whatsoever and was easily satisfied because he saw in front of him as purchaser a respectable pleader of his Court and one who had been the legal adviser of the minor's family. In this case also, as in Muhammad Adil's, Mohan Lal cannot be permitted to argue that he was in no way concerned with the faulty procedure of the District Judge. Having regard to the position which he occupied it was incumbent on him to disclose the true facts to the District Judge and get a proper order recorded by him. In my opinion he took advantage of the confidence which the District Judge reposed in him. As observed by their Lordships of the Privy Council in the case of Ganga Pershad Sahu v. Maharani Bibi, if any underhand dealing is brought home to the purchaser a formal sanction of the District judge will not be sufficient."
Further on the learned judges said :‑
" The sale was sanctioned by the judge without any inquiry whatsoever and this was due to the action of Mohan Lal. He did not appear before the Judge until the very last moment though he had started negotiations for the purchase of the property two months earlier. He knew the claim of the minors to be absolved from the liability of paying the decrees of both Imtiaz Hussain and Bishun Narain, but did not inform the Judge of this claim of the minors. It will be seen that the very man Muhammad Fazil whom he on behalf of the minors held liable for the payment of the above‑mentioned decrees was a witness to the deed in his favour."
I have already found that in the present case there was no want of enquiry by the learned Guardian Judge. With respect to, absence of mention of the area the judgment goes against the contention of the appellant for at page 94 the learned judges quoted with approval the following paragraph from a previous judgment of their own Court :‑
"As regards the mandatory character of the provisions of subsection (2) of section 31, Guardians and Wards Act, we are quite clear in our mind that the violation of the procedure prescribed by that subsection for recording the order granting the permission cannot be made the ground of brushing aside the finality of the order as enacted by section 48. The only condition in which the finality prescribed by section 48 can be avoided is to establish that the order granting the permission was a nullity. An order passed by a Court in violation of such rules of procedure however mandatory as relate merely to the form of order cannot be treated as a nullity. The omission to follow such rules of procedure can amount to no more than a mere irregularity or a material irregularity in the circumstances of a particular case. On the other hand an order, passed by a Court in violation of such rules of procedure as the observance of which only invests the Court with juris diction to pass the order is a nullity."
I have no doubt that the want of reference to area and price does not invalidate the sanction. The law has been substantially complied with for the learned Judge of the Guardian Court applied his mind and reached a conclusion that the sale was necessary. That a sale was needed in the interest of the minors is obvious for possession of the whole land was with the mortgagee. The only points of attack could be that the area was sold at less than the market price or the amount of mortgage money was not legally due. Both these points of attack are without force. I may mention here that Ashiq Hussain had applied a second time for permission to sell mentioning that he wanted to seli land to the mortgagee and on 14th February 1941 an order was passed saying that permission had already been granted. This order is referred to in the sale‑deed and I have seen the original order myself.
I find there was no gross negligence by the guardian in the first suit and that it constitutes res judicata. The effect of the second suit is the same. In this suit the plea as to invalidity of sanction had been taken, as will appear from para. 8 of the plaint, the relevant part of which runs :‑
"8.(a) that, as explained above, the sanction for the sale secured from the Guardian Court was invalid, void and ineffective on the rights of the plaintiffs in the property because full facts had not been correctly disclosed before the Court and because circumstances had changed in 1942."
In this para there are further allegations that the Guardian Court had not allowed sale of four squares of land at all and that on account of gross negligence and fraud the sanction is not binding on the plaintiffs. As regards the plea that the mortgage money included improper amounts it had been mentioned but was not made a ground of attack for the. reason that the sale only was being attacked. Para 10 deals with this matter. It runs :‑
"That the property in dispute is already mortgaged with possession and out of the mortgage money a small amount is valid. At the time of redemption it will 'be ascertained as to what amount is due to the mortgagees. A suit for possession, therefore, does not lie and a declaratory suit with respect to the ownership of the plaintiffs is being filed."
The position taken up in this paragraph is the same as had been taken up by the High Court in the appeal filed in the first suit. The High Court had held that so far as the inclusion of any improper items in the mortgage is concerned they were not to deal with that matter because only the sale had been attacked and that that was a matter to be gone into when the amount of the 'mortgage money was in question.
There is no force in either of the two pleas on which the plaintiff‑appellant relies and, therefore, he utterly fails in substantiating gross negligence by the guardian in either of the two suits, for in order to show that the guardian had been grossly negligent in not taking a particular plea he must show that the plea had force. The plaintiff has no real grievance. I would dismiss this appeal with costs.
I agree.
A. H. Appeal dismissed.
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