Kumara Kangaya Goundar vs Arumugha Goundar and Others

Natesan, J.—The substantial point in this second appeal is whether the decree in O. S. 386 of 1953 on the file of the Sub Court Coimbatore

is vitiated and a nullity as against the plaintiff for want of proper and effective representation therein of the plaintiff who was a minor during its

pendency. The plaintiff who seeks to have the decree against him set aside contends that, when his father as his natural guardian was available and

in every way interested in his welfare as his only son, his paternal grandfather was appointed as guar-dian and the gross negligence of this guardian

in the conduct of the suit resulted ia a decree being passed against him.

First the relevant facts of the case may be set out briefly. The properties in dispute in this suit belonged to one Palaniswami Goundan. He settled

the suit properties on his granddaughter, the second defendant in the suit and one Muthuswami who had been proposed as her husband, both of

them minors, under the settlement deed dated 13-5-1936, conferring absolute rights in the properties on the second defendant and her proposed

husband. The second defendant was represented for the settlement by her mother Valliammal as guardian and the proposed husband Muthuswami

was represented by his father Ponnuswami as guardian. Along with the settlement, a maintenance deed came to be executed by the guardians for

maintaining the settlor Palaniswami, The marriage of the second defendant with Muthuswami as proposed took place shortly after and the plaintiff

is the child bora to them on 30-10-1940.

Disputes arose between the two grandsons, the plaintiffs paternal grandfather Ponnuswami and the plaintiffs maternal grandmother Valliammal,

bringing about estrangement between the second defendant and her husband. The plaintiff''s mother the second defendant, who had a half share in

the properties under the settlement deed, usufructuarily mortgaged the same to the third defendant in the present suit under the original of Ex. B-8

on 30-6-1943 for Rs. 2,000. The family dispute finally got settled in a way and the second defendant and her husband, as the father and mother of

the plaintiff, executed the settlement deed Ex. A-6 on 10-7-1943 in favour of their son, the present plaintiff. But the settlement deed had to be

compulsorily registered. For the purpose of this settlement, the present plaintiff who was a minor then was represented by his paternal grandfather

Ponnuswami as guardian, The first defendant got an assignment of the mortgage above referred to and filed the suit O.S. No. 386 of 1953 for

recovery of the mortgage amount against the present second defendant and her minor son, the plaintiff, the settlee under Ex. A-6. The second

defendant remained ex parte in that suit and in that mortgage suit the present plaintiff was represented by his paternal grandfather Ponnuswami as

guardian ad litem.

The suit was hotly contested on behalf of the present plaintiff, the main plea in the mortgage suit on behalf of the plaintiff being that the mortgage

was a sham and nominal transaction, not supported by consideration and had been antedated, having been executed after the present second

defendant had parted with the title to the property under the settlement deed Ex. A-6 in favour of present plaintiff. The defence in the mortgage suit

failed in the trial Court and in appeal, and the second appeal therefrom failed at the admission stage itself. It is seen from the records that senior

advocates had been engaged on behalf of the present plaintiff at all stages. At the stage of the second appeal, the grandfather Ponnuswami was

dead and the father Muthuswami himself preferred the second appeal as guardian ad litem of his minor son. And so the suit to set aside the decree.

In this suit for setting aside the mortgage decree by the plaintiff after coming .of age on the substantial issue of fact whether there was gross

negligence on the part of the guardian at litem of the plaintiff in the conduct of the suit and the appeal therefrom, the learned District Mun-sif,

Dharapuram, in a carefully considered judgment, finds against the plaintiff. He holds that there was no gross negligence on the part of the guardian

of the plaintiff in the conduct of the suit and the appeal. This finding has been confirmed by the learned Subordinate Judge in appeal. He remarks

that he cannot find anything in the oral evidence adduced in the case to show as to what facts or documents were omitted to be placed before the

Court and as to what acts or omissions on the part of the guardian amounted to gross negligence. He concludes that he was satisfied on the

evidence adduced in the case that there was nothing to establish that any prejudice was caused to the appellant by any omission on the part of the

guardian ad litem appointed in the case, He remarks that the guardian had done everything which he could reasonably be expected to do in the

interests of the minor. This issue being a finding of fact, naturally the learned counsel confined his challenge of the judgments of the Courts below to

the question whether the minor plaintiff was properly represented in the mortgage suit.

The objection to the representation put forward by the plaintiff is that when there was available his father, the natural guardian, he should have

been appointed and in his presence the paternal grandfather was incompetent to act as his guardian ad litem. It is said that there was no need for

the Court to overlook the natural guardian and appoint the paternal grandfather as the guardian. It is urged that the appointment of a proper person

as guardian ad litem of a minor defendant is imperative, and, in the absence of due representation of the minor, the decree does not bind him and

cannot be enforced against him. There can be no doubt and it is not questioned that a decree passed against a minor properly represented is

binding upon him as much as a decree passed against an adult, and that when there has been proper representation, the minor, to avoid the decree,

may show that his guardian was guilty of gross negligence in the conduct of the suit. The question, therefore, is whether there was proper

representation of the minor in the former suit,

The rules relating to the appointment of guardian pendente life for a minor defendant are to be found in Order 32, Civil P.C. Under Order 32,

Rule 3 (1), any person who is of sound mind and has attained majority may act as his guardian for the suit, provided that his interest is not adverse

to that of the minor. Rule 3 (2) which is important in the context of the present contention may bo set out:

Where a minor has a guardian appointed or declared by competent authority, no person other than the guardian shall act as the next friend of the

minor or be appointed as his guardian for the suit unless the Court considers for reasons to be recorded, that it is for the minor''s welfare that

another person be permitted to act or be appointed, as the case may be."" Rule 3 (4) requires that an application for the appointment of a guardian

taken out by the plaintiff shall set forth in the order of suitability a list of persons who are competent and qualified to act as guardian for the suit for

the minor defendant, the Court, for reasons to be recorded, being empowered to exempt the applicant from furnishing such a list. Rule 3 (5) sets

out the particulars required in the affidavit in support of the application for appointment of guardian. This sub-rule does not indicate that before

anybody else is considered, the claims of the guardian appointed or declared by Competent Authority, the natural guardian or the de facto

guardian must be considered--see the requirement in Rule 3 (5) (c) for particulars of names and addresses of persons, if any, who in fie event of

either the natural or de facto guardian or the guardian appointed or declared by competent authority, not being permitted to act, are by reason of

relationship or interest or otherwise, suitable persons to act as guardians for the minor in the suit. Rule 3 (7) may also be set out--.

No order shall be made on any application under Sub-rule (4) above except upon notice to any guardian of the minor appointed or declared by

an authority competent in that behalf or where there is no guardian upon notice to the father or other natural guardian of the minor, or where there

is no father 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. . .

It is seen from the records that in the mortgage suit the plaintiff therein, while applying for the appointment of a guardian for trie minor, proposed

the minors father Muthuswami and his paternal grandfather Ponnuswami for the guardianship. Both the proposed guardians expressed their

willingness to act as guardian and thereupon the Court appointed Ponnuswami, that is the paternal grandfather, as guardian, observing that

Ponnuswami alias Subbaraya Goundan is willing to be guardian and is appointed guardian as he is already acting as guardian"". One must here bear

in mind that Ponnuswami, the paternal grandfather, has been shown as the guardian of the minor in the settlement deed, Exhibit A-6. The father of

the plaintiff in the present case in his evidence has stated that for the registration of the settlement deed Ex, A-6 (it was not registered on its

execution and it was not compulsorily registered), though he was present, his father conducted the whole proceedings and that he and his wife, viz.,

the other defendant in the mortgage suit, recognised Ponnuswami as the guardian of his son in the settlement deed Ex. A-6. He went to the extent

of stating that till his death he continued to be the guardian.

It is not contended that the procedure prescribed for the appointment of a guardian under Order 32, Civil P.C., was not followed in this case. I

find nothing in Order 82 making it mandatory on the Court to appoint the natural guardian where he expressed his willingness to be appointed as

guardian ad litem and not exercise its discretion if it so considers and appoint another person as guardian ad litem for the suit. It is not the case for

the plaintiff that any one has been appointed or declared as guardian by Competent Authority for him when he was a minor, to compel the Court to

appoint such person as guardian ad litem, unless the Court considered that it was for the minor''s welfare that another person should be appointed,

Then the Court is enjoined to record its reasons. Rule 3(7) of Order 32, Civil P.C., provides for notice of the application to be given to the father

or other natural guardian of the minor where there is no guardian appointed or declared by Court. In this case notice went both to the father, the

natural guardian and to the paternal grandfather and both expressed willingness. The records do not show any claim being pressed by the father

against the grand-father or any objection being urged against the appointment of the grandfather as guardian ad litem. The Court has given reasons

for its choice.

The circumstances of the case show that there would not have been any objection and it looks as if the father gave place for the grandfather. The

essential requirement is that the person who is appointed as the guardian must be (1) a person of sound mind, (2) a major and (3) he must have no

interest adverse to that of the minor in the matters in controversy, The Courts below find that no adverse interest has been made out in this case;

and the trial Court has even indicated why the paternal grandfather was appointed guardian ad litem. The settlement deed by the father and mother

was put in issue in that case as having preceded the mortgage sued upon, and Ponnuswami, the paternal grandfather, who was shown as the

guardian of the minor by both father and mother in the settlement deed was chosen to represent the minor. It is one thing if a minor defendant is not

represented at all, or a person appointed guardian ad litem whose interests were adverse to the minor. If a minor is not properly represented in the

Suit, he can contend that he cannot be considered to have been a party to the suit. But that is not the position here.

Learned counsel for the appellant referred to Jivan Krishna v. Sailendranath, AIR 1946 Cal 272. But this case has absolutely no relevance to

the matter under consideration now, That is a case under the Guardians and Wards Act and with reference to that Act it was there pointed out that

the appointment of a person as guardian other than natural guardian, u/s 7(1) of the Guardians and Wards Act, implied u/s 7(2) of the Act, the

removal of the natural guardian and that such a removal u/s 7(2) resulted in a permanent cessation or his powers u/s 41. Having regard to the

provisions of the Guardians and Wards Act it was said that the appointment of a guardian by Court operated as a supersession of the natural or de

facto guardian of a minor. Such a result does not follow on the appointment of a guardian ad litem for a minor defendant by the Court under the

provisions of the Civil Procedure Code.

The rules under Order 32, Civil P.C., clearly contemplate the appointment of a person other than the natural guardian also as guardian ad litem.

Order 82, Rule 7, (Rule 3 (7), (Mad.)?) is very clear on this point. It only provides that no order shall be made on any application for the

appointment of a guardian ad litem except upon notice to the guardian appointed and declared by Court and where mere is no such guardian upon

notice to the father or other natural guardian of minor. No doubt, the father would have a preferential right when there is no guardian appointed or

declared by Competent Authority. Objections have to be heard which may be urged on behalf of any person served with notice under the Sub-rule

3 (7) of Order 32, Civil P. C. and reasons have to be given if a preferential claim is overruled for another. But it does not follow that every

irregularity in the appointment without more will vitiate the appointment.

A reference to Kalachand Bysack Vs. Amulyadhone Banerjee, , would show that the appointment of a person as guardian ad litem in the

presence of the natural guardian does not vitiate the representation of the minor in the proceedings. In that case in an earlier litigation, the defendant

in that suit died leaving his wife and three infant children. The attorney for the opposite party. intimated the widow that she must get herself

appointed as guardian ad liteni of her minor sons and that otherwise he would get an officer of the Court appointed as guardian. For the wife

intimation was sent that she was in mourning on account of the then recent bereavement and that the matter may stand over for a fortnight. But the

defendant in the latter suit was appointed guardian ad litem after the Court was satisfied that he had no interest adverse to the minors. When the

defendant wanted instructions from the widow, she intimated that she was herself willing to act as guardian and that the defendant could acquaint

the Court of the fact. The defendant did inform the Court of the widow''s willingness; but tbe widow took no further steps to substitute herself as a

guardian ad litem, and Panckridge J., in the circumstances, remarked that he cannot see anything irregular in the appointment.

If a guardian ad litem has been appointed for a minor defendant and the minor''s interests have been duly looked after in the litigation, mere

irregularities in the appointment of the guardian cannot render the decree nugatory against the minor. The minor, to avoid the decree, must further

prove that he was not effectively represented in the suit and that he was prejudiced by the failure of the guardian to take pleas that could have been

validly raised on his behalf.

Law insists that the minor''s interests in the litigation should be taken care of and the minor represented in the litigation by an adult whose interests

are not adverse to that of the minor. The minor''s interests in the litigation should not be neglected or prejudiced, and Courts have to be jealous in

observing the requirements of the law in this regard in letter and spirit. All the same when it is found that the guardian who had been acting for the

minor in the suit had not let down the interests of the minor and when the minor was in no way prejudiced, it is immaterial if some irregularity in the

appointment is found. If the purpose for which a guardian ad litem is appointed -- to put forward pleas properly available for the minor in the case

and protect his interest in the litigation by necessary representation -- has been achieved, the minor cannot later, by another guardian or on

becoming a major avoid the decree if it is against him, on the ground of some irregularity in the procedure adopted for appointing the guardian,

Here no procedural irregularity as such is alleged, but it is said that the father should have been appointed and not the grandfather. Even ignoring

the fact that a reason has been given for the choice of the grandfather, on the findings of the Courts below, there has been effective representation

of the minor in the suit and there has been no omission on the part of the guardian that has prejudiced the interests of the minor in the present suit.

In Pupooth alias Komancheri Rarichan alias Ramanunni Kurup Vs. Vayisravanath Manakkal Raman Somayajipad and Another, , while a

contention was urged that a guardian appointed by a competent authority under the Guardians and Wards Act, had been improperly superseded

and a Court guardian appointed without recording proper reasons under Order 32, Rule 4, clause (2), it was observed at p. 519 (of Mad LJ) =

(at p. 555 of AIR):

Now in the first place as I have already said it is not very clear that he was so appointed (appointed by Competent Authority) plaintiff''s'' own

case being that he was not so appointed. But even if we take it that he had been so appointed, the failure to record reasons under Rule 4, Clause

(2), is only an irregularity in my opinion and will not by itself vitiate the decree if the minor is in fact properly represented by a guardian appointee

by Court.

It follows that the view of the Courts below that the plaintiff was properly represented in the suit, O.S, No. 386 of 1953, on the file of the Sub-

Court, Coimbatore, is correct.

In the result, the second appeal fails and is dismissed with costs.