Holding

The earlier partition decree is binding on the appellant; the court guardian acted properly, and the decree operates as res judicata.

Summary

The appellant, Kameshwari Devi, was a minor when a partition suit (Suit No. 178/57) was filed in 1957 concerning the estate of her father, Bigan Kumhar. A court‑appointed guardian represented her, and the suit resulted in a decree granting a 1/42 share to each branch, based on a registered partition deed (Phatbandi). After attaining majority, she filed a fresh suit seeking to set aside that decree, alleging that the Phatbandi was fraudulent and that the decree did not bind her as a minor. The trial court and the appellate courts dismissed her suit, holding the earlier decree valid. The Supreme Court examined whether the decree was binding on a minor represented by a court guardian and whether res judicata applied. It concluded that the guardian had properly represented the minor’s estate, the Phatbandi was a valid partition deed, and the earlier decree was binding as res judicata, thus dismissing the appeal.

Issues considered

Whether a decree passed in a partition suit when the plaintiff was a minor, represented by a court‑appointed guardian, binds the minor upon attaining majority.
Whether the court guardian’s representation was sufficient to invoke res judicata against the minor.
Whether the partition deed (Phatbandi) was a valid and binding document for the purposes of the decree.

Legislation cited

Code of Civil Procedure, 1908s. 11

Subjects

partitionminorguardian ad litemres judicataLimitation Actestate of minorPhatbandidecree bindingcivil appeal

Judgment

A SMT. KAMESHWARI DEVI @KALESHWARI DEVI
v.
SMT. BARHANI (DEAD) BY LRS. AND ORS.

FEBRUARY 20, 1997

B (K. RAMASWAMY ANDS. SAGHIR AHMAD, JJ.]

Limitation Act, 1872:

S. 7-Estate of Minor-In an earlier suit for partition, the· appellant,
c when he was minor was represented by guardian appointed by Court-Phat-
bandi, a document registered in 1920, when appellant was not born, treated
as a Ila/id document in the nature of partition and was acted upon-Suit
• decreed accordingly-Appellant after attaining majority filed the suit for setting
aside the partition decree, seeking fresh partition decree contending that the
interest of the appellant as a minor was not properly safeguarded and the
D partition decree did not bind him-Held, the Phatbandi was found to be a
·true, valid and binding deed and was· acted upon, and it bound the par-
ties--i'inding of the appellate court confinned by the High Court that the
Court guardian had acted neither negligently nor fraudulently is well jus-
tified-In the circumstances, though the court guardian had not filed any
E separate written statement, the defence on Phatbandi being common to all
and the estate of minor having been sufficiently represented by appointment
of court guardian, and the court having gone into the question, the Phatbandi
binds the appellant and operates as res judicata-C.P.C. s.11-Res
judicata-Partition decree -Whether binding or minor.

F CIVIL APPEI,LATE JURISDICTION: Civil Appeal No. 2354 of
1986.

From the Judgment and Order dated 25.2.86 of the Patna High Court

G
in A.D. 17 of 1977.

Dr. Shankar Ghose and P.P. Singh for the Appellant.
.
S.N. Misra, Mohd. Kazim Sher, N.S. Bisht and Manish Misra for the
Respondents. ..J

H The following Order of the Court was delivered :
332
KAMESHWARI DEVI v. BARHANI 333

This appeal by special leave arises from the judgment of the Patna A
High Court, made on February 25, 1986 in Appeal from Appellate Decree
No. 17 of 1977.

The admitted facts are that one Hulash Kumhar the common ances-
tor, had two sons, Jitram Kumhar and Gudar Kumhar. The appellants B
represent the branch of J etram Kumhar and the respondent represented
the branch of Gudar Kumhar. Bigan was the father of the appellant and

- his mother was Anandi Kauri. Bigan died in 1957 leaving behind him the
original plaintiff. Arujun Mahato and his sisters, defendant Nos. 8-11 and
brothers defendants Nos. 13 and 14. One Bajani Kumari, defendant No. 1
in the present suit, representing the branch of Gudar Kumhar, filed suit No. C
178 of 1957 for partition impleading Bigan and five others. The suit for
partition was filed on September 20, 1957 and Bigan died before summons
were served on him on September 27, 1957. Subsequently, his widow,
Anandi Kauri was brought on record as defendant No. 1. The appellant was
impleaded therein as 4th defendant. Summons, ultimately, were taken to his D
mother as natural guardian. Since she refused to receive the notice, an
application was taken out to appoint a court guardian, which accordingly
came to be ordered. The court guardian represented the appellant in O.S.
No. 178/57. The suit was decreed confirming grant of 1/42nd share of each
of the branches of Bigan. The appellant, after attainirig majority, filed the
present suit for setting aside the earlier partition decree and for fresh E
partition contending that the decree in suit No. 178/57 did not bind him.
The trial Court gr_anted a preliminary decree. But, on appeal, the District
Judge reversed that decree and dismissed the suit and in the second appeal
the High Court confirmed the same. Thus, this appeal by special leave.
F
The only controversy in this appeal is : whether the appellant is
bound by the decree passed in suit No. 178/57. The findings recorded by
all the courts are that there was no written statement filed on behalf of the
appellant in suit No. 178/57. The thrust of the case set up by the appellant
is that the Phatbandi, Ex. C, does not bind him and the parties and the
interest of the estate of the appellant as a minor was not properly G
safeguarded in that behalf in suit No. 178/57. It is an undisputed fact that
Phatbandi was a registered document of the year 1920 by which time even
the plaintiff was not born. It is the common case of the parties of the
branch of Bigan in the suit No. 178/57 that it was a nominal document with
a view to defraud the creditors and was not acted upon. The controversy H
334 SUPREME COURT REPORTS [1997] 2 S.C.R.
)--
A was gone into upto the High Court in the earlier litigation in details and
ultimately the find recorded was that it was a valid document in the nature
of a partition and was acted upon. That finding had become final. The
question is : whether the estate of the minor was properly represented in
suit No. 178/57?

B
It is true, as rightly contended by Dr. Shankar Ghosh, learned senior
counsel, that in a case where the estate of the minor is involved in an action
for partition or any other suit, the estate of the minor is required to be
properly represented taking all diligent steps by either guardian ad litem
or the court guardian. If the interest of the estate of the minor are not
C protected, necessarily, the minor on his attaining majority or within
three years thereafter is entitled to file the suit under Section 7 of the
Limitation Act, after cessation of the disability to question the correct-
ness of a decree which is sought to be made binding on him. But in that
case, the limited defence that could be open to him is that either the
D decree in the earlier suit was obtained by fraud/collusion or by
negligence by the court guardian or that guardian ad /item did not
safeguard the interest of the estate of the minor. On proof of those facts,
necessarily, the decree does not bind him and it is open to the court to go
behind the decree and consider the right of the minor de hors the decree.
But, in this case, whether that question arises for decision is to be seen.
E It is true, as found by all the courts, that the document Ex. C, Phatbandi
was a document marked as D/2 in suit No. 178/57. The sheet anchor, in
that suit, the defence open to all the parties on the document was that it
was not a genuine document and was brought into existence only to
defraud the creditors. That question was common to the interest of all the
F persons including the minor. The parties had hotly contested the suit and
the matter was carried upto the High Court and the High Court had
considered it and recorded the finding that it was true, valid and binding
deed being registered partition deed and was acted upon; and it bound
the parties. Under these circumstances, though the court guardian had
not filed any separate written statement, it makes little difference on the
G facts in this case, for the reason that the defence on Ex. C was common
· to all and the estate of the minor was sufficiently represented by
appointment of the court guardian and that court had, in fact, gone into
that question. It binds the appellant and operates as res judicata. If it
were a case de hors the document and any other independent right was
H available and not set up nor considered in the earlier suit, necessarily that
KAMESHWARIDEVIv. BARHANI · 335

question could be gone into i~ the present suit since that was not pleaded A
by filing any written statement or contested by the court guardian in that
behalf. No other plea was raised in this suit. Under these circumstances,
the finding that Phatbandi, Ex. C binds the parties including the appellant
is a finding validly recorded.

Equally, the finding recorded by the appellate Court and confirmed B
by the High Court that the court guardian had acted neither negligently
nor fraudulently also is well justified on the facts and circumstances in this
case. Ex. C. 2 operates as res judiCata and binds the appellant. The appeal,
therefore, warrants no interference.

The appeal is accordingly dismissed. No costs. c
R.P. Appeal dismissed.