C.V. Vytheswara Iyer vs K.M.R.M.L. Kumarappa Chettiar

William Watkin Phillips, J.—In this case the petitioner is the testamentary guardian of defendants Nos. 2 and 3 in the suit in the District

Munsif''s Court. Notice was taken to the petitioner to Calcutta although he was stated in the guardian petition to be living at Mettupalayam. Notice

was returned unserved for want of sufficient address. A second notice was taken to Calcutta to the identical address and this was returned

unserved for want of time owing to holidays in the Calcutta Court. On this the respondent applied to make the brother of the minors their guardian,

but he refused. Then, he filed an application supported by an affidavit in which it was alleged, firstly, that the testamentary guardian had refused to

act as guardian and, secondly, that the minor''s mother was dead, whereas she is admittedly alive It was then stated that there was no other person

interested in the said minors and the appointment of the head clerk of the Court was asked for. Accordingly, the head clerk was appointed

guardian. He filed a written statement merely putting the plaintiff to proof of his case and the following day a decree was passed against the minors.

The question now is whether the minors ware properly represented in that suit. Under Order XXXII, Rule 3(4) no appointment of guardian can be

made except after notice to the minor and to any guardian appointed or declared by an authority competent on that behalf. In the present case the

petitioner was the testamentary guardian and notice ought to go to him, It is perfectly clear that notice did not go to him. Besides this the

respondent falsely asserted that this guardian had refused to act. When the present petition was presented an affidavit was filed in which it was

alleged that the minor''s brother gave the guardian''s correct address to the respondent. This fact was not traversed in the counter-affidavit.

Notwithstanding this, the District Munsif held that the assertion was not proved but when there is a definite allegation in an affidavit which is the

only evidence in the case and that allegation is not traversed by the other side it must be held to be correct. That being so, it is perfectly clear that

the appointment of the head clerk as Court guardian of the minors was obtained by the deliberately false statements of the respondent who has

committed a fraud upon the Court. It is clear that the minors were not properly represented in the suit and all the proceedings that have taken place

in that suit and subsequently are not binding on them. For authority, I need only refer to Pupooth alias Komancheri Rarichan alias Ramanunni

Kurup Vs. Vayisravanath Manakkal Raman Somayajipad and Another, and Jambu Ammal v. Nataranjam Pillai 70 Ind. Cas. 867 : 31 M.L.T. 215

: AIR 1922 Mad. 485. The petition is, therefore, allowed and the District Munsif is directed to restore the suit to his file so far as the minors are

concerned and dispose of it according to law. The respondent will pay the costs of this petition.