Kerala High Court
Prema Maxi vs Tresa Xavier on 28 February, 2022
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque, Sophy Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
MONDAY, THE 28TH DAY OF FEBRUARY 2022 / 9TH PHALGUNA, 1943
RP NO. 392 OF 2016
AGAINST THE JUDGMENT AND DECREE DT 1/9/2014 IN RFA 240/2003
OF HIGH COURT OF KERALA
O.S.NO.23/2001 (PROBATE O.P.482/96) OF THE IIND ADDITIONAL
DISTRICT COURT, ERNAKULAM DATED 31.3.2003
REVIEW PETITIONER/APPELLANT/PLAINTIFFS:
1 TRESA XAVIER,
W/O.LATE XAVIER MANAYATH, AGED 90 YEARS, RESIDING
AT MANAYATH HOUSE NO.26/2451, THEVARA, ELAMKULAM
VILLAGE, KANAYANNUR TALUK.
(DIED, R2 TO R6 TRANSPOSED AS REVIEW PETITIONERS
2 TO 6
2 MRS. IRENA ALOYSIUS ALIAS JESSY,
W/O.JOSEPH ALOYSIUS, KADUMGAMPARAMBIL, HOUSEHOLD
AFFAIRS, RESIDING AT MANAYATH HOUSE,BUILDING
BEARING AT PRESENT NO.CC NO, 26/2451, ELAMKULAM
VILLAGE, KANAYANNUR TALUK, KOCHI 682013.
3 JOSE PRAKASH,
S/O.JOSEPH ALOYSIUS, KADUMGAMPARAMBIL, RESIDING
AT MANAYATH HOUSE,BUILDING NO.CC NO, 26/2451,
ELAMKULAM VILLAGE, KANAYANNUR TALUK, KOCHI
682013.
4 PRIYA MAXI,
D/O.JOSEPH ALOYSIUS, KADUMGAMPARAMBIL, RESIDING
AT MANAYATH HOUSE,BUILDING NO.CC NO, 26/2451,
ELAMKULAM VILLAGE, THEVARA DESOM, KANAYANNUR
TALUK, KOCHI -682013.
R.P. No. 392/2016 in
R.F.A. No. 240 of 2003
-2-
5 PREMA MAXI,
D/O.JOSEPH ALOYSIUS, KADUMGAMPARAMBIL, RESIDING
AT MANAYATH HOUSE,BUILDING NO.CC NO, 26/2451,
ELAMKULAM VILLAGE, THEVARA DESOM, KANAYANNUR
TALUK, KOCHI -682013.
6 JOSEPH ALOYSIUS KADUMGAMPARAMBIL,
ASSISTANT ENGINEER, K.S.E.B (RETD.),
RESIDING IN BUILDING NO.26/2451,
ELAMKULAM VILLAGE, THEVARA DESOM, KANAYANNUR
TALUK, KOCHI-682013.
RESPONDENTS 2-6 IN RP 392/16 IS TRANSPOSED AS
ADDITIONAL PETITIONERS 2-6 IN RP 392/16 AS LEGAL
HEIRS OF THE REVIEW PETITIONER (LATE) TRESA
XAVIER AS PER ORDER DATED 26/02/2021 IN IA
3/2019.
BY ADVS.
BY SRI.A.K.RANI FOR P2 TO P6
R.P. No. 392/2016 in
R.F.A. No. 240 of 2003
-3-
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 MRS.MARY SIMON
W/O.LATE SIMON, AVITTAMPALLY HOUSE, HOUSEHOLD
AFFAIRS, RESIDING AT AVITTAMPALLY HOUSE,
PEELIYAD, PONELKARA, EDAPPALLY P.O., KANAYANNUR
TALUK (DIED).
2 MRS.IRENA ALOYSIUS ALIAS JESSY (TRANSPOSED AS
REVIEW PETITIONER NO.2)
W/O.JOSEPH ALOYSIUS, KADUMGAMPARAMBIL, HOUSEHOLD
AFFAIRS, RESIDING AT MANAYATH HOUSE, BUILDING
BEARING AT PRESENT NO.CC NO.26/2451, ELAMKULAM
VILLAGE, KANYANNUR TALUK, KOCHI-682 013.
3 JOSE PRAKASH (TRANSPOSED AS REVIEW PETITIONER
NO.3)
S/O.JOSEPH ALOYSIUS, KADUMGAMPARAMBIL HOUSEHOLD
AFFAIRS, RESIDING AT MANAYATH HOUSE, BUILDING
NO.CC NO.26/2451, ELAMKULAM VILLAGE, KANYANNUR
TALUK, KOCHI-682 013.
4 PRIYA MAXI (TRANSPOSED AS REVIEW PETITIONER NO.4)
D/O.JOSEPH ALOYSIUS, KADUMGAMPARAMBIL, RESIDING
AT MANAYATH HOUSE, BUILDING NO.CC NO.26/2451,
ELAMKULAM VILLAGE, KANYANNUR TALUK, KOCHI-682
013.
5 PREMA MAXI (TRANSPOSED AS REVIEW PETITIONER NO.5)
D/O.JOSEPH ALOYSIUS, KADUMGAMPARAMBIL, RESIDING
AT MANAYATH HOUSE, BUILDING NO.CC NO.26/2451,
ELAMKULAM VILLAGE, KANYANNUR TALUK, KOCHI-682
013.
R.P. No. 392/2016 in
R.F.A. No. 240 of 2003
-4-
6 JOSEPH ALOYSIUS (TRANSPOSED AS REVIEW PETITIONER
NO.6), KADUMGAMPARAMBIL, ASSISTANT ENGINEER, KSEB
(RETD.), RESIDING AT BUILDING NO.26/2451,
ELAMKULAM VILLAGE, THEVARA DESOM, KANYANNUR
TALUK, KOCHI-682 013.
7 JOSEPH FRANKLIN
S/O.LATE SIMON, AVITTAMPALLY HOUSE, RESIDING AT
TATA PIPE LINE ROAD, POWER HOUSE ROAD, NORTH
END,KOCHI-682 018.
(DIED, R16 IMPLEADED )
8 THOMSON
S/O.LATE SIMON, RESIDING AT AVITTAMPALLY HOUSE,
EDAPPALLY - 682 024.
(DIED, ADDITIONAL R10 TO R15 IMPLEADED)
9 MRS.CICILY CLEETUS
W/O.CLEETUS, KANNANKERIL HOUSE, AZHIKKAKAM,
KUMBALANGHI, KOCHI-682 007.
(ADDL. RESPONDENTS AS 7 - 9 IMPLEADED AS LEGAL
REPRESENTATIVES OF RESPONDENT NO.1 AS PER ORDER
IN I.A.198/98 DATED 28.2.1998)
10 ADDL. 10 PLAMENA ALIAS PHILOMINA THOMSON
W/O.LATE THOMSON, AGED 78 YEARS, RESIDING AT
AVITTAMPILLY HOUSE , PEELIYADU , AIMS P.O.
PONEKKARA ,KOCHI 682041
11 ADDL. 11. MARY MARGRET BINDU
D/O.THOMSON, AGED 57 YEARS, W/O.K.V.GEORGE,
RESIDING AT KURISINGAL HOUSE, PEELIYADU AIMS P.O,
PONEKKARA KOCHI-682041.
R.P. No. 392/2016 in
R.F.A. No. 240 of 2003
-5-
12
ADDL. 12. JOSEPHINA BEENA
D/O.LATE THOMSON , AGED 55 YEARS, W/O.JAMES.
VATTUSSERY JETTY LANE END, VADUTHALA, KOCHI
682023
13 ADDL. 13 BENNY HENRY TEMANT
S/O.LATE THOMSON , AGED 52 YEARS, RESIDING AT
AVITTAMPILLY HOUSE , PERUMPADAPPU P.O.,
PALLURUTHY, KOCHI-682007.
14 ADDL. MARY GRACE BETZY
D/O.LATE THOMSON, AGED 45 YEARS , RESIDING AT
AVITTAMPILLY HOUSE PEELIYADU , AIMS P.O.,
PONEKKARA, KOCHI-682041
15 ADDL. MERLINE JESINTHA
D/O./LATE THOMSON ,AGED 45 YEARS ,RESIDING AT
AVITTAMPILLY HOUSE, PEELIYADU , AIMS P.O.
PONEKKARA , KOCHI 682041
[ADDITIONAL RESPONDENTS 10 TO 15 ARE IMPLEADED AS
LEGAL HEIRS OF DECEASED R8 VIDE ORDER DATED
26/02/2021 IN IA 2442/2016]
16 ADDL. 16. NIMMY FRANKLIN
D/O.LATE JOSEPH FRANKLIN, AGED ABOUT 48 YEARS,
RESIDING AT FLAT NO, 1-F, KATTIKKARAN TOWERS,
KACHERIPDY, KOCHI 682018.
ADDITIONAL R16 IS IMPLEADED AS THE SOLE LEGAL
REPRESENTATIVE OF THE DECEASED R7 VIDE ORDER
DATED 11/11/2016 IN IA 2665/2016
BY ADVS.
SMT.PRABHA R.MENON FOR R9 AND R16
SRI.A.BALAGOPALAN FOR R12 AND R14
SRI.A.RAJAGOPALAN FOR R12 AND R14
R.P. No. 392/2016 in
R.F.A. No. 240 of 2003
-6-
SRI.M.S.IMTHIYAZ AHAMMED FOR R12, R14
SMT.P.SEENA FOR R12 AND R14
OTHER PRESENT:
Shri MATHAI M PAIKADAY (Sr.)
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON
10/2/2022, ALONG WITH RP.667/2016, THE COURT ON 28.02.2022
DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
MONDAY, THE 28TH DAY OF FEBRUARY 2022 / 9TH PHALGUNA, 1943
RP NO. 667 OF 2016
AGAINST THE JUDGMENT AND DECREE DT 1/9/2014 IN RFA 240/2003
OF HIGH COURT OF KERALA
O.S.NO.23/2001 (PROBATE OP 482/96) OF II ADDITONAL DISTRICT
COURT, EKM DATED 31.3.2002
REVIEW PETITIONER/RESPONDENT NO.5/DEFENDANT NO.5:
PREMA MAXI
AGED 31 YEARS
D/O.JOSEPH ALOYSIUS, W/O.NIDHIN HENRY, BLOCK 4,
APARTMENT B-53 TOWER B, STREET NO.28, SHEIKHA
COMPLEX, MANGAF, KUWAIT.
AND LOCAL ADDRESS C/O.JOSEPH THEKKEKURUVANAL,
ADVOCATE, FLAT NO.107, PRASANNA VIHAR, AWHO,
MARINE DRIVE, ERNAKULAM, KOCHI - 682 031.
BY ADVS.
K.RAMACHANDRAN
SRI.JOSEPH THEKKEKURUVANAL
V.B.NARAYANAN
M.J.WILFRED DAS
R.SUDHIR
MATHAI M PAIKADAY(SR.)
RP NO. 667 OF 2016 in
R.F.A. No. 240 of 2003 -2-
RESPONDENTS/APPELLANT AND RESPONDENTS 1,2,3,4, 6 AND
ADDITIONAL R7 TO 9/PLAINTIFF AND DEFENDANTS 1,2,3,4, 6 &
ADDITIONAL DEFENDANTS 7 TO 9:
1 TRESA XAVIER
W/O.LATE XAVIER MANAYATH, RESIDING AT MANAYATH
HOUSE, HOUSE NO.26/2640A, (NEW NO.58/2741)
THEVARA, ELAMKULAM VILLAGE, KANAYANNUR TALUK,
KOCHI 682 013. (DIED)
2 MRS.MARY SIMON
W/O.LATE SIMON, AVITTAMPALLY HOUSE, HOUSEHOLD
AFFAIRS, RESIDING AVITTAMPALLY HOUSE, PEELIYAD,
PONELKARA, EDAPPALLY P.O., KANAYANNUR TALUK
(DIED)
3 MRS.IRENA ALOYSIUS ALIAS JESSY, AGED 61 YEARS,
W/O.JOSEPH ALOSIUS, KADUMGAMPARAMBIL, HOUSEHOLD
AFFAIRS, RESIDING AT MANAYATH HOUSE, BUILDING
BEARING AT PRESENT NO.26/2640-A, (58/2741)
ELAMKULAM VILLAGE, KANAYANNUR TALUK, KOCHI 682
013.
4 JOSE PRAKASH, AGED 41 YEARS,
S/O.JOSEPH ALOYSIUS, KADUMGAMPARAMBIL, RESIDING
AT MANAYATH HOUSE, BUILDING NO.26/2640A,
(58/2741), ELAMKULAM VILLAGE, KANAYANNUR TALUK,
KOCHI 682 013.
5 PRIYA MAXI
D/O.JOSEPH ALOYSIUS, W/O.BALU VIJI, VALLANATT,
KARTHEDATH HOUSE, NEAR POTTAIL TEMPLE, EROOR
SOUTH, NADAMA VILLAGE, KANAYANNUR TALUK,
TRIPUNITHURA 682 301.
6 JOSEPH ALOYSIUS KADUMGAMPARAMBIL, AGED 69 YEARS,
ASSISTANT EXECUTIVE ENGINEER, K.S.E.B (RETD.),
RESIDING IN BUILDING NO.26/2640A (58/2741)
ELAMKULAM VILLAGE, THEVARA DESOM, KANAYANNUR
TALUK, KOCHI 682 013.
RP NO. 667 OF 2016 in
R.F.A. No. 240 of 2003 -3-
7 JOSEPH FRANKLIN
S/O.LATE SIMON, AVITTAMPALLY HOUSE, RESIDING AT
TATAROAD, POWER HOUSE ROAD, NORTH END, KOCHI 682
018.
(DIED) ADDITIONAL R16 IMPLEADED
8 THOMSON
S/O.LATE SIMON, AVITTAMPALLY HOUSE, RESIDING AT
AVITTAMPALLY HOUSE, EDAPPALLY P.O. 682 024.
(DIED ADDITIONAL R10 TO R15 IMPLEADED
9 MRS.CICILY CLEETUS
W/O.CLEETUS, KANNANKERIL HOUSE, AZHIKKAKAM,
KUMBALANGHI, KOCHI 682 007.
10 PLAMENA ALIAS PHILOMINA TOMSON,
W/O.LATE THOMSON, AGED 78 YEARS, RESIDING AT
AVITAMPILLY HOUSE ,PEELIYADU, AIMS P.O.,
PONEKKARA KOCHI- 682 041.
11 MARY MARGRET BINDU,
D/O.LATE THOMSON, AGED 57 YEARS, W/O.K.V.GEORGE,
RESIDING AT KURISHINGAL HOUSE, PEELIYADU, AIMS
P.O. PONEKKARA , KOCHI 682041
12 JOSEPHINA BEENA
D/O.LATE THOMSON , AGED 55 YEARS ,W/O.JAMES
VATTUSSERY, JETTY LANE END, VADUTHALA ,KOCHI -
682023
13 BENNY HENRY TEAMANT
S/O.LATE THOMSON, AGED 52 YEARS, RESIDING AT
AVITTAMPILLY HOUSE, PERUMPADAPPU .P.O.
PALLURUTHY, KOCHI 682007.
RP NO. 667 OF 2016 in
R.F.A. No. 240 of 2003 -4-
14 MARY GRACE BETZY,
D/O.LATE THOMSON , AGED 50 YEARS , W/O.BENNY ,
ELAVUNGAL ,. SOUTH PIPE LANE HMT CONLONY
KALAMASSERY 684 503
15 MERLINE JESINTHA,
D/O.LATE THOMSON .AGED 45 YEARS RESIDING AT
AVITTAMPILLY HOUSE, PEELIYEADU, AIMS P.O. KOCHI
682 041.
ADDITIONAL R10 T0 R15 IMPLEADED AS LEGAL
REPRESENTATIVES OF DECEASED R8 VIDE ORDER DATED
18.02.21 IN IA 2487/16.
16 NIMMY FRANKLIN
D/O.LATE JOSEPH FRANKLIN AGED ABOUT 48 YEARS,
RESIDING AT FLAT NO.1-F , KATTIKKARAN TOWERS
KACHERIPADY , KOCHI-682018
ADDITIONAL R16 IS IMPLEADED AS THE SOLE LEGAL
REPRESENTATIVE OF THE DECEASED R7 VIDE ORDER
DATED 11/11/2016 IN IA 2659/2016
BY ADVS.
SRI.P.B.PRADEEP
SMT.PRABHA R.MENON FOR R10, R15, R9 AND R16
SMT.A.K.RANI FOR R3 TO 6
SRI.SHIJU VARGHESE FOR R1
SHRI N.SUBRAMANIAM FOR R9 AND R16
SHRI M.S.NARAYANAN FOR R9 AND R16
SHRI GIRIJAN P.T. FOR R9 AND 16
SMT USHA NARAYANAN FOR R7, R9 AND 16
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON
10.02.2022, ALONG WITH RP.392/2016, THE COURT ON 28/2/2022
DELIVERED THE FOLLOWING:
A.MUHAMED MUSTAQUE & SOPHY THOMAS, JJ.
----------------------------------
R.P. Nos. 392/2016 & 667/2016 "C.R."
in
R.F.A. No. 240 of 2003
ORDER
Dated this the 28th day of February, 2022 A.Muhamed Mustaque, J.
RP 667/2016: This review is pointing out an ad litem irregularity. The review petitioner was a minor in the proceedings before the District Court and became major before the disposal of the case before the District Court. The review petitioner was shown as a minor in the appeal under review as well. The records of the District Court show that there was no application for appointment of a guardian for the minor before the District Court nor had the Court appointed a guardian. The point that arises in this review is whether the decree passed against a minor without the minor being represented by a guardian, duly appointed by a R.P. Nos. 392/2016 & 667/2016 in R.F.A. No. 240 of 2003 -:2:- Court, renders the decree as nullity. So also the dismissal of the appeal, overlooking the nullity of the decree passed by the District Court warrants a review at the instance of the minor.
2. The point of law arises in the context of Order 32 Rule 3 and Rule 3A of the Code of Civil Procedure, 1908 (CPC).
3. Brief facts are; one Thomman held properties in and around Ernakulam. He died intestate. Xavier and Antony were his sons. Mary was his only daughter. Xavier died on 12/1/1979. Xavier's wife Tresa Xavier filed O.S. No.112/84 for partition of the property that belonged to Thomman. Tresa claimed that her deceased husband Xavier inherited half share and another half share to his brother Antony. Overruling the claim of Tresa, a preliminary decree was passed allotting 1/3rd share to each child of the deceased Thomman. Tresa claimed that before the preliminary decree was passed, Antony, her husband's R.P. Nos. 392/2016 & 667/2016 in R.F.A. No. 240 of 2003 -:3:- brother executed Ext.A10 Will on 3/4/1986. Antony died on 16/8/1994.
4. Tresa in the year 1996, filed O.P.No.482/1996 for granting probate of the Will of Antony. Tresa had no children in her wedlock with Xavier. Tresa adopted her brother's daughter, Irena. Irena in her wedlock with Joseph Aloysious, has three children. Tresa claimed that the children of Irena are the legatees under the Will. Prema Maxi is the daughter of Irena and one of the legatees. Mary was the first defendant. She contended that the Will is not genuine and was vitiated by undue influence, coercion and fraud. In view of the dispute, the Probate O.P. was converted as a suit and renumbered as O.S.No.23/2001. Pending the suit, Mary died and her children were impleaded as additional defendants.
5. The review petitioner, Prema Maxi was the fifth defendant in O.S.No.23/2001. Her date of birth is 11/12/1984. She was shown as a minor and represented by R.P. Nos. 392/2016 & 667/2016 in R.F.A. No. 240 of 2003 -:4:- her father and legal guardian. Her sister Priya Maxi was also a minor and was represented by her father. During the pendency of the Probate O.P., they were set ex parte on 17/6/1997. Thereafter, an application to set aside ex parte order was filed and that was allowed on 22/7/1997. On 3/9/1997, the Court recorded submission of the review petitioner and the other legatees of the Will arrayed as respondents 2 to 6, "no objection" in granting probate.
6. The District Court, on conversion of the probate as a suit, tried the matter and dismissed the suit holding that the Will was not genuine and Tresa was not entitled to get probate of the Will. Both parties, Tresa and the legal heirs of Mary contested the suit by adducing evidence and bringing all possible evidence.
7. Tresa came in appeal before this Court in R.F.A.No.240/2003. This Court, after examining the evidence in detail, came to the conclusion that Antony was of unsound mind and therefore, Ext.A10 Will was not R.P. Nos. 392/2016 & 667/2016 in R.F.A. No. 240 of 2003 -:5:- genuine. It is appropriate to refer to para.52 of the judgment in R.F.A.No.240/2003 which reads thus:
52. In the light of the above discussion we hold that the admission of the plaintiff, the medical evidence adduced by additional defendants 7 to 9 and the probabilities in the case leave no room for any doubt that Antony was of unsound mind.
8. The review petitioner, Prema Maxi was the 5th respondent in the appeal before this Court. She was shown as minor even though she became a major in the year 2002. The appeal was filed in the year 2003. We also perused the records of the District Court and this Court. There were two irregularities. One committed by the District Court, where no guardian was appointed for the review petitioner, who was the fifth defendant before the District Court. The second irregularity is that, though the review petitioner was major before the appeal was filed, she was shown as minor in the appeal.
9. The learned Senior Counsel Shri Mathai M. Paikaday appearing for the review petitioner-Prema Maxi R.P. Nos. 392/2016 & 667/2016 in R.F.A. No. 240 of 2003 -:6:- argued in extenso and placed reliance on the following judgments.
Begum Para Nasir Khan & Ors. v. Luiza Matilda Fernandes & Ors. [1984 (2) SCC 595] Malkiyat Singh & Anr. v. Om Prakash & Ors. [1994 SCC OnLine Raj. 91] Kameshwari Devi alias Kaleshwari Devi & Ors. v. Barhani (dead) by Lrs. Ors. [1997 (10) SCC 273] Nagaiah & Anr. v. Chowdamma (dead) by Lrs. & Anr. [2018 (2) SCC 504] K. P. Natarajan & Anr. v. Muthalammal & Ors. [2021 SCC OnLine SC 467] Bhaurao Dagdu Paralkar v. State of Maharashtra & Ors [2005 (7) SCC 605].
10. The learned Counsel submits that, in light of Order 32 Rule 3 and Rule 3A, the decree has to be treated as nullity. It is further argued that when no contest has been raised on behalf of the minor, that itself would show that prejudice has been caused to the interest of the minor and therefore, there is no difficulty in setting aside such decree.
11. Heard the learned counsel, Smt.Prabha R. Menon appearing for the contesting party, i.e. respondents 7, 9 and
16. The learned counsel submits that pursuant to the R.P. Nos. 392/2016 & 667/2016 in R.F.A. No. 240 of 2003 -:7:- preliminary decree, final decree was passed on 11/7/2008 and delivery of possession was taken on 23/3/2011. It is further submitted that the review petitioner was aware of the proceedings related to probate and dismissal of the suit much before the disposal of the appeal by this Court on 1/9/2014. It is also submitted that the Special Leave Petition filed before the Apex Court challenging the judgment and decree was also dismissed on 5/10/2015. The learned counsel relied on the following judgments:
Bibi Walian and Ors. v. Banke Behari Pershad Singh and Ors. [MANU/PR/0026/1903] Chater Bhuj Goel v. Gurpreet Singh [MANU/PH/0213/1983] Abdul Salam v. Chalil Sajitha and Another [2017 (2) KHC 757] Nagaiah & Anr. v. Chowdamma (dead) by Lrs. and Another [2018 (2) SCC 504] Gurdeep Kaur and Another v. Avinder Singh [2019 KHC 4004] Naseem Ahmed and Others v. 1st Additional District Judge, Haridwar and Others [2020 KHC 2097] Femi Joseph v. Branch Manager , Federal Bank, Varakkara [2014(2) KHC 772 (DB)] R.P. Nos. 392/2016 & 667/2016 in R.F.A. No. 240 of 2003 -:8:-
12. R.P. No.392/2016: This review petition is at the instance of Tresa Xavier, the appellant in the appeal which is subjected to review. According to Tresa, this Court had not properly appreciated the facts and the evidence involved in this case. According to her, once a person is found to be unsound it does not mean that he remained unsound throughout his life. Tresa's contention is based on the facts appreciated by this Court in appeal.
13. We shall first advert to the review petition filed by Prema Maxi, who was a minor before the Trial Court and attained majority before filing appeal before this Court. The irregularities we noticed earlier, how far would have an impact in the conclusion of the proceedings, is the point to be considered in this review filed by Prema Maxi. We shall advert to Order 32 Rule 3 and Rule 3A which reads thus:
3. Guardian for the suit to be appointed by Court for minor defendant.--
(1) Where the defendant is a minor the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor.
R.P. Nos. 392/2016 & 667/2016 in R.F.A. No. 240 of 2003 -:9:- (2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff.
(3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.
(4) No order shall be made on any application under this rule except upon notice to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian, upon notice to the father or where there is no father, to the mother, or where there is no father or mother, to other natural guardian of the minor, or, where there is no father, mother or other natural guardian, to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule.
(4A) The Court may, in any case, if it thinks fit, issue notice under sub- rule (4) to the minor also.
(5) A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement or removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any Appellate or Revisional Court and any proceedings in the execution of a decree. 3A. Decree against minor not to be set aside unless prejudice has been caused to his interest.-(1) No decree passed against a minor shall be set aside merely on the ground that the next friend or guardian for the suit of the minor had an interest in the subject matter of the suit adverse to that of the minor, but the fact that by reason of such adverse interest of the next friend or guardian for the suit, prejudice has been caused to the interests of the minor, shall be a ground for setting aside the decree.
(2) Nothing in this rule shall preclude the minor from obtaining any relief available under any law by reason of the misconduct or gross R.P. Nos. 392/2016 & 667/2016 in R.F.A. No. 240 of 2003 -:10:- negligence on the part of the next friend or guardian for the suit resulting in prejudice to the interests of the minor.
14. The Court, as seen from the mandate of Rule 3, is bound to appoint a guardian for the minor. The Court's role in appointing the guardian of the minor is to ensure that the interest of the minor is protected. The Court also has to make sure that the proposed guardian would not act against the interest of the minor in regard to matters in controversy. There cannot be any doubt that if there was no appointment of a guardian by the Court for the minor, the proceedings would be rendered as a nullity qua minor. See the judgment of K.P. Natarajan's case (supra), Kameshwari Devi's case (supra), Nagaiah's case (supra). The statutory provisions under Order 32 Rule 3A provides a safeguard against setting aside the decree unless it is shown that prejudice has been caused to the interest of the minor. Merely because the minor has not been represented, a decree cannot be set aside except in circumstances where prejudice has been R.P. Nos. 392/2016 & 667/2016 in R.F.A. No. 240 of 2003 -:11:- resulted consequent upon non representation of the minor by the guardian appointed by the Court.
15. What is the prejudice? How the Court has to deal with prejudice is the matter of concern of the Court. When it is shown that the minor has not been properly represented, the Court must conduct an inquiry as to the prejudice occasioned to the minor. 'Prejudice' is defined in Black's Law Dictionary (Eighth Edition) as follows:
Damage or detriment to one's legal rights or claims. Legal prejudice: A condition that, if shown by a party, will usu. defeat the opposing party's action: esp., a condition that, if shown by the defendant, will defeat a plaintiff's motion to dismiss a case without prejudice. The defendant may show that dismissal will deprive the defendant of a substantive property right or preclude the defendant from raising a defence that will be unavailable or endangered in a second suit.
16. The prejudice may occasion consequent upon non contest of the case, negligence in conduct of the case and fraud committed to the proceedings. When minor is litigating on common issues or rights available to all contesting parties and when it is shown that there was serious contest of the matter by adducing all possible R.P. Nos. 392/2016 & 667/2016 in R.F.A. No. 240 of 2003 -:12:- evidence, can we hold that prejudice has been caused to the interest of the minor?
17. This is not a case where fraud could be alleged in as much as that, the review petitioner is deemed, was not a party to the proceeding. When there was no appointment of a guardian by a formal order of the court, necessarily it means that the minor was not represented in the proceedings. Therefore, we have to proceed in examining the prejudice qua potential adverse interest on account of non contest on behalf of the minor.
18. A guardian ad litem is responsible for representing the interest of the minor. The party may fail in appointing the guardian but the Court cannot fail in its duty to appoint the guardian. See K.P.Natarajan's case (supra). In this case, we are examining irregularity in the context of common litigating issue related to propounding a Will. In a situation like this, first, the Court has to examine whether the minor had an independent or distinct issue or right in R.P. Nos. 392/2016 & 667/2016 in R.F.A. No. 240 of 2003 -:13:- the litigation. If the minor had an independent and distinct right, than that of the other litigating parties to the case, the Court can easily conclude that prejudice has been caused to the minor. If the minor is having only a common litigating issue or right, the Court has to hold that the minor's interest has been substantially represented by the other litigants who were litigating on the common right available to them. The substantial representation would necessarily mean that there was full-fledged adjudication and trial of the case. Once it is shown that there was substantial representation, the Court must refuse to set aside the decree. However, there is an exception to this rule. If it was shown that there was negligence in conducting the case by the litigating parties, the minor can very well seek setting aside of the decree, pointing out prejudice.
19. Doctrine of substantial representation is a principle of law applicable to the substantial rights of the parties. The Courts in common law jurisdiction are not only Courts of R.P. Nos. 392/2016 & 667/2016 in R.F.A. No. 240 of 2003 -:14:- law but also Courts of equity. It is a fundamental principle that all persons interested in the subject matter of the suit should be party to such proceedings. When there is no guardian appointed to a minor by the Court, in essence, it would be looked upon as though the party who is having interest was not joined in the proceedings. In such proceedings, no doubt, when a party having substantial interest is omitted, the decree and judgment will not bind such party who is having interest in the subject matter. However, the theory of substantial representation is an exception followed in Courts of equity. In every lis, finality of the lis is the principle adopted by the Court. Explanation VI to Section 11 of CPC brings home on the point of controversy here. Section 11 is the last word in culmination of the issues in lis between the parties. Section 11 of CPC refers to finality of judgment and the binding nature of judgment on all who are litigating on a common public or private right. Section 11 explanation VI states that where R.P. Nos. 392/2016 & 667/2016 in R.F.A. No. 240 of 2003 -:15:- persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purpose of this section, be deemed to claim under the persons so litigating. The theory of substantial representation has statutory recognition through explanation VI of Section 11 CPC. The learned Senior Counsel Shri Mathai Paikaday placing reliance on K.P.Natarajan's case (supra), particularly referring to para.23 of the judgment submits that a decree without appointing guardian is ipso facto void and without further probe, the court has to declare that the decree is in nullity. We are afraid to apply this proposition of law argued by the learned Senior Counsel to facts of this case. As seen from the facts of K.P.Natarajan's case, the decree was an ex parte decree and there was no contest on the side of the other parties arrayed. In such circumstances, there was no difficulty to hold that decree is ipso facto nullity. On the other hand various precedents would go to show R.P. Nos. 392/2016 & 667/2016 in R.F.A. No. 240 of 2003 -:16:- that when the minor's interest has been substantially represented, no prejudice would occur to the minor on account of irregularity in the proceedings due to non appointment of guardian by a formal order by the Court. See the judgments Subramanyam Chettiar and others v. Isaki Ammal [AIR 1953 Madras 12], Gurdeep Kaur and Another v. Avinder Singh [2019 KHC 4004], Naseem Ahmed and Others v. 1st Additional District Judge, Haridwar and Others [2020 KHC 2097], Saradamani v. Rajendran [AIR1981 Madras 217].
20. The substantial representation of minor's interest is still open for challenge, in view of Rule 3A of Order 32 CPC if the minor is able to demonstrate negligence of the party who litigated the issue encompassing the minor's interest. This ground is available to a minor even if the minor has been represented by a guardian who was formally appointed by an order of the Court. The 'prejudice' referred under Rule 3A of Order 32 CPC also may result R.P. Nos. 392/2016 & 667/2016 in R.F.A. No. 240 of 2003 -:17:- from negligence, on the part of the litigating parties. 'Negligence' in this context means, carelessness in conducting the litigation on common issues or rights available to all. Negligence in conducting the litigation refers to the failure of the action of a litigant in taking reasonable steps that ought to have been taken to prosecute or defend the case. If the suit was not conducted or resisted with care and prudence that are ordinarily required in such suit, negligence may occur. A Division Bench of the Andhra Pradesh High Court in Chatrati Sriramamurthi and another v. Official Receiver, Krishna and others [AIR 1957 AP 692] at para.6 referred to negligence of a guardian of a minor after relying on many precedents. In para.6, it was observed as follows:
6. The negligence must have been such as to result in the loss of a right which would have been successfully asserted if the suit had been conducted or resisted with ordinary care and prudence. It might consist in the omission to raise an available plea or to adduce available evidence to subantiate it. If the next friend or guardian-ad-litem had been guilty of gross dereliction of duty, that is to say, if he had neglected to do what was plainly his duty or did or omitted to do something which no man of R.P. Nos. 392/2016 & 667/2016 in R.F.A. No. 240 of 2003 -:18:- common honesty and ordinary prudence would have done or omitted, then the minor would have a right to sue to set aside an adverse decision attributable to the guardian's breach of duty.
21. It is the duty of the minor who was not represented, to demonstrate prejudice by proving elements of negligence, to seek setting aside of the decree. Non representation of the minor or improper representation of the minor itself, will give no cause of action to the minor to seek setting aside of the decree in a contested matter on common litigating issues or rights also available to the minor. In this case, the review petitioner miserably failed to demonstrate any negligence on the part of Tresa in conducting the case.
22. The Hon'ble Supreme Court in Bishundeo Narain and Another v. Seogeni Rai and Jagernath [AIR 1951 SC 280] observed that if the minor can show fraud or negligence on the part of his next friend or guardian ad litem, it entitles the minor to challenge the decree passed against him and avoid its effects. This view also has been reiterated in Kameshwari Devi's case [supra]. R.P. Nos. 392/2016 & 667/2016 in R.F.A. No. 240 of 2003 -:19:-
23. Prema Maxi, has no independent claim different from Tresa. The common claim of Tresa and the children of Tresa's foster daughter was based on the Will alleged to have been executed by Antony. The Trial Court as well as this Court in appeal, relied on medical evidence and other evidence to hold that Antony was of unsound mind. All possible evidence that could have been brought before the Court were made available. Prema Maxi also failed to prove any negligence in the conduct of the case by Tresa. On minor coming of age, she could have also very well contested the appeal. She was represented by her father before the District Court and this Court.
24. Coming back to R.P.No.392/2016 filed by Tresa Xavier, who was the original appellant before this Court, we find no reason to interfere invoking review jurisdiction of this Court. This Court had appreciated factual matters based on the available evidence on record. Appreciation of evidence in appeal cannot be subjected to review R.P. Nos. 392/2016 & 667/2016 in R.F.A. No. 240 of 2003 -:20:- jurisdiction. This Court had examined all evidence adduced by her to come to a conclusion that Antony was of unsound mind and incapable of executing a Will. The Court particularly noted the report of the Process Server, medical evidence etc. to come to such a conclusion. In such circumstances, we are declining to invoke review jurisdiction to reconsider the appreciation of the facts and evidence analysed by this Court. No review warrants. R.P.No.392/2016 is liable to be dismissed.
In the result, R.P.Nos.392/2016 and 667/2016 are dismissed. No order as to costs.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE Sd/-
SOPHY THOMAS, JUDGE ms