Batai Bibi vs Bhabai Prosad Garhai

Chunder, J.—This appeal is by three Plaintiffs who are sisters. They sued for declaration of title, khds possession after setting aside a sale held in Rent Execution case No. 45 of 1943 of the Hunsif''s court at Suri on the ground that the sale did not affect the Plaintiffs'' title and they also asked for mesne profits. The Defendant No. 2 purchased the property at that court sale in the benami of Defendant No. 1 and came into possession since July 26, 1943. Both the courts have found on facts the question of limitation as under the special law of limitation in the Bengal Tenancy Act against the Defendants. The question is no longer open, nor is it urged.

In the rent suit in which the decree was passed which led to the sale, the Plaintiffs are said to have been parties, and to have been represented by their mother as their natural guardian. The Plaintiffs of the present suit were the Defendants in that rent suit. It is not contested by either party that the effect of that rent decree was that of a money decree as one Sademan was a necessary party if it was to be a rent decree and he was not made a party. This has been the finding of the courts below also and the finding is not challenged. Therefore, the only question that arises is whether the three Plaintiffs who were then admittedly minors were properly represented in the rent suit and the decree was a proper decree and the sale in execution, a sale which affected their interest.

Lala Hemanta Kumar has pointed out that in the present suit two of the Plaintiffs were minors and they sued through their sister as the next friend. Lala Hemanta Kumar has pointed out that leave of the court was not obtained. It has been held by this Court as also by the Judicial Committee and other High Courts as well, that if the minor Plaintiffs have a right to sue, objection as to want of or any defect in the authority of the next friend is not fatal to the suit and cannot be raised for the first time in appeal. Narendra Nath Pahari v. Bhupendra Narain Roy (supra); the Full Bench decision of the Madras High Court reported in Kamaraju v. The Secretary of State for India (1886) I.L.B. 11 Mad. 309, Baboo Hurdey Narain Sahu v. Pundit Baboo Rooder Perkash Misser (supra); a decision of the Allahabad High Court reported in Sridhar Rao v. Ram Lal (1909) 1 Ind. Cas. 555 may be looked into as authorities.

Lala Hemanta Kumar has referred us to Section 148, Clause (h) and he has tried to contend that as notice was issued on the mother of the minors and she did not appear and object there was proper representation. This contention is based upon an erroneous interpretation of Section 148(h). What that section purports to do is that if there is a natural guardian of the minor and such natural guardian is made the guardian ad litem and a notice issued and served, the consent of such guardian to act as the guardian ad litem is not necessary in a suit brought under the Bengal Tenancy Act. Under Order XXXII, Rule 4 of the CPC it is necessary that whoever is the guardian ad litem, his consent must be obtained. This is the effect of Order XXXII, Rule 4, Clause (3). The only exemption that is made by the Bengal Tenancy Act u/s 148(A) is that in case of a natural guardian such consent is not required after service of notice. It is enough that a notice is issued on the natural guardian and the natural guardian has not appeared and objected. If he appears and objects then a proper guardian ad litem has to be appointed by the court. Again, if the person on whom the notice is issued is not, under the personal law of the minor, his natural guardian then Section 148(A) has absolutely no application and the procedure laid down in Order XXXII, Rule 4 must be followed and consent obtained. In the present case, the mother was not the natural guardian of the Mahomedan minor Defendants of that rent suit. If authority is required for that proposition, the decision of the Judicial Committee in (1918) ILR 45 878 (Privy Council) . is a settlor on the point. The mother not being the natural guardian of these minor Mahomedan Defendants in that rent suit, the special exemption contained in Section 148(h) of the Bengal Tenancy Act had no application and it must be said that the minor Defendants were not represented in that suit by a proper guardian ad litem. The trial court was right in decreeing the suit of the Plaintiffs as far as declaration of title and the declaration that their interests were not affected by the sale are concerned. The extent of the share of the three Plaintiffs can be easily worked out according to well-known principles of the Mahomedan law. The decree of the trial court was not right in so far as it granted khas possession as against the Defendants. The Defendants still retain their title and possession to the shares other than those of the three Plaintiffs which they purchased. The decree of the appellate court reversing that of the trial court cannot be supported.

The result, therefore, is that this appeal succeeds and the decree of the trial court is restored as far as the share of the three Plaintiffs who are Appellants before this Court are concerned and instead of a decree for khas possession there will be a decree for joint possession of the three Plaintiffs with Defendant No. 2. The shares may, if there is any dispute, be worked out according to the settled principles of Mahomedan Law. Each party will bear its own costs in this appeal.