Pujari Bhimaji Minor by next Friend Pujari Nagappa vs Rajabhai Hussain Saheb and Another

Sadasiva Ayyar, J.—The plaintiff represented by his certificated guardian (appointed by the District Court) is the appellant before us. He

sued to set aside the decree passed against him in a suit brought by the present first defendant as plaintiff, on a mortgage bond executed by the

plaintiff''s mother. The short question for decision is whether the plaintiff was properly and legally represented in that suit. An officer of the Court

was appointed in that suit at the instance of the then plaintiff (present first defendant) as guardian (for the suit) of the minor defendant (present

plaintiff). If there was no proper representation, if the representation by that officer was not merely irregular but also illegal, there can be no doubt

that this suit to set aside the decree and the other proceedings in the former suit is sustainable. The lower Courts held that because the Court and

the present first defendant (the then plaintiff) were not -aware that a guardian had been appointed by the District Court for the minor, the

appointment of an officer of the Court as the guardian for the former suit was neither illegal nor irregular and therefore the decree in the former suit

should not be set aside. I am unable to agree with the conclusions of the lower Courts. Order XXXII, Rule 4(2), so far as it relates to a minor

defendant, is as follows:

Where a minor has a guardian appointed or declared by competent authority, no person other than such guardian shall be appointed his guardian

for the suit.

(that is, in the case where a minor is a defendant)

unless the Court considers for reasons to be recorded that it is for the minor''s welfare that another person be appointed.

The old Section 457, Civil Procedure Code, prohibited a married woman being appointed as guardian for the suit for a minor defendant and

thus created a legal disability in her to act as such. Now Order XXXII, Rule 4(2), in the case where a minor is a defendant, similarly prohibits any

person other than the guardian appointed or declared by competent authority to act as guardian for the suit of a minor defendant. The legislature

clearly made this provision because it was strongly of opinion that it was not for the minor''s welfare that anybody else except such certificated

guardian, where one exists should act for a minor defendant, Where there is such a clear prohibition by the legislature, the Court''s ignorance of the

existence of a certificated guardian cannot be taken into consideration in deciding the question whether there has been a proper representation of a

minor in the suit, any more than the ignorance of a Court under the old provision that a woman appointed by it as a guardian was a married woman

could affect the decision of the question whether the minor was properly represented by such a woman. I think the decision in Hanuman Prasad v.

Muhammad Ishaq I.L.R.(1906) , All., 137 confirmed in Rashid-un-nissa v. Muhammad Ismail Khan I.L.R.,(1909) All. 572 , is almost conclusive

on this point. On behalf of the respondent, we have been referred to Dammar Singh v. Pirbhu Singh I.L.R.(1907) ,All., 290 , in which the question

is very meagerly discussed, and it was decided before the Privy Council decision above referred to. The obiter dicta in Jogeswar Narain v. Lala

Mooralidhar (1908) 7 C.L.J., 270, and Midnapore Zemindari Co., Ltd., v. Gobinda Mahto (1908) 8 C.L.J., 31 , approving Dammar Singh v.

Pirbhu Singh I.L.R.,(1907) All., 290 , do not carry us much further. Mathuramalai v. Palani I.L.R.(1914) Mad., 536 was not a case decided on

the rule which we are now considering, but the decision turned upon the question whether failure to give notice to a person alleged to be then in

charge of the minor wholly vitiated the appointment of a third person by the Court as the minor''s guardian, that is whether non-compliance with the

provisions of Order XXXII, Rules 3 and 4, made the appointment wholly illegal, or whether it was only an irregularity. I do not think that a

prohibition to anybody else to act, enacted in Order XXXII, Rule 4(2), can be put on the same footing as the direction to give notice to the person

in whose care the minor is before making the appointment of a proper guardian. On the whole, I think that there was no legal representation of the

minor plaintiff in the former suit. I hope that plaintiffs will hereafter take care, when they implead a minor as a party defendant and when they apply

to the Court for appointing a guardian for the suit, to inquire whether a certificated guardian has been already appointed for the minor defendant. I

would also add that there are observations in Narsingh Narain v. Sheikh Jahi Mistry (1912) 15 C.L.J., 3, which doubt the soundness of Dammar

Singh v. Pirbhu Singh I.L.R.,(1907) All., 290. I would decree the suit, setting aside the decree of the lower Courts. As allegations of fraud and

collusion made in paragraphs 8(b) and 8(c) of the plaint were not proved according to the findings of both Courts, and as the illegality of the

appointment of the Court officer under the provisions of the Code was not expressly set up in the plaint, I would direct the next friend to bear

personally the costs of this litigation incurred on the plaintiff''s behalf. The defendants will of course bear their own costs.

Spencer, J.

I agree. I think that when there is a definite prohibition of law in such words as those in Order XXXII, Rule 4, Civil Procedure Code, ""no

person other than such guardian shall act as the next friend of the minor, or be appointed guardian for the suit unless, etc."", that a decree obtained

against a minor represented by some other person is an illegal decree void as against the minor and not a decree obtained by a mere irregularity. I

would follow in this matter, the Privy Council decision, Rashid-un-nissa v. Muhammad Ismail Khan I.L.R., (1909) All., 572, and another case of

the Privy Council, Khiarajmal v. Daim I.L.R., (1905) Cal., 296 , where it was held that a decree obtained against a person who was not properly

represented on the record was void and without jurisdiction against such person. I agree with my learned brother that Dammar Singh v. Pirbhu

Singh I.L.R.. (1907) All., 290 , is not a case which we can follow without hesitation. There was another case, Ram Barechha Ram v. Tarak

Tewari (1916) 14 A.L.J., 589, quoted by the respondent''s pleader. In that case, the minors belonged to an undivided Hindu family and the

manager of that family was a party and fully contested the suit. There was, therefore, no necessity to appoint a guardian at all, and a decree

obtained against the minors, on whose behalf a guardian not properly representative of their interests was appointed, was not on that account an

invalid decree. The appeal will have to be allowed, the directions as to costs being as mentioned in my learned brother''s order.