044 - Hanuman Prasad v. Muhammad Ishaq (137-142)
044 - Hanuman Prasad v. Muhammad Ishaq (137-142)
187
Before Sir John Stanley, Kniijht, Chief Justice and Mr, Justice 1905
Sir William Burldtt. July 20,
HANUMAN PRASAD -u. MUHAMMAD ISHAQ — ----------
(Defendant).’'*'
Ciml Frooedure Code, seetion 44i?»— 0-uardian ad V'tom^—Frocedure—Appoint
ment o f guardian ud litem invalid—Jiffoct of invalidity on decree passed
against minor defendant
The provisions of sectioi 443 of the Code of Civii Procedure as to tliG
appointment of a gii'xrclian nd litem foi‘ amiuor dcfeudiat are impenitivo,
and ,vlaere tlic-se provisions a-e not su’>st^ntiallj' complied with, tlie minor is
not pi’opedy represontedj and any dosi’SG which rariy be passed against him
is ii uulliby. Khiarujmal v. Baim (1) followed. W alim v. BanJse Beltccri
Peri'had Singh (2) distingui;ihed.
T his was a suit broughtone Hannman Prasad for a
declaration of his title jo a certain house, and that an auction
sale of the Itoiise which book place on the 18th of February 1900
was void as against 4iim. One Mimna Da>, who was the certifi
cated guardian of the plaii^tiff, on the 18th of June 1891 pur
ported to mortgage the house in qnestion as his own property to
two persons, Ajudhia and Miinni Lai. The mortgagees brought
a suit for sale on their mortgage, obtained a decree, and brought
the property to sale, and it was purchased by Muhammad Ishaq.
In the suit of Ajudhia and Munni Lai the mortgagor Munna
Das wa<3 originally the sole defendant, but on the application of
Munna Bag as certificated guardian of Hanuman Prasad the latter
was made a defendant, Munna Das alleging that the house was in
fact not his property but that of his ward. No appointment
was, however, made under section 443 of the Code of Civil Pro
cedure of a guardian ad litem, for the minor defendant. Munna
Das professing to act as guardian of Hanuman Prasad, filed a
written statment on his behalf, and when the suit was lost, pre
sented an appeal against the decree, but this appeal he allowed
to be dismissed for default. In the present suit, bjrought by
Hanuman Prasad after he attained majority, the Court o f first
instance (1st Additional Munsif of Meerut) decreed the
plaintift's claim. The defendant appealed, and the lower appel
late Court (Additional Subordinate Judge of Meerut) reversed
®, Second'Appoal No. 817 of 190S, from » decree of Munshi Bai Shankar
Lai, Additional Subordinate Judge of Meerut, dated the 28th of July X908,
reversing a decree of Bhawani Chandav Chakravati, Munaif of Meernt, dated
tlie 1st of September 1902.
(1) (1904) L. E., 82 I. A.. 53. (8) (1£G3) L L. E ,,80 Calc., W3l.
138 the INDIAN LAW REPORTS, [V O L. X X V I I I .
1905
the MiiDsiPs deoision. and diBmiBSod the sniti. The plaintiff
appealed to the High Court.
HANTrMAH
Peasab Mr. K a r m m i t I L m a in , tlic nppcflnnt*
V.
MuHAaniAD Pandit B a ld co Davo.^ fo r th(3 roapondoDfc.
Ish aq. Stanley C.eL and B o b k jtt , J .— The plaintiff appellant,
Haniinaan Prasad, in the suit out of which this appeal has arisen,
sued for a declaration that a certain hoiiBo was liis property and
was not saleable, and did not pass under a sale which took place
on the 18th of February 1900. One Miinna Dae, wlio was the
certificated guardian of the appellant, on the 18th o f June 1891,
purported to mortgage the house in question as his own property
in favour of two persons, Ajudhia and Munni Lai. The
mortgagees brought a suit for enforcement of payment of the
mortgage debt by sale of the mortgaged property and obtained a
decree for sale on the IStJi of September 1J597, and the property
was sold, on the 18th of February 1900 to the defendant respond.-
ent, Muhammad Ishaq^, In the suit which was infetitiitod by
the mortgagees the sole defendant originally was the mortgagor,
Munna I)as. Munna Das, however, made an application to
the Court on behalf of his nephew, the plaintiff appellant
Hanuman Prasad, to have the plaintift appellant impleaded as
a defendant to the suit, alleging that the house did not belong
to him (Munna Das), but was the property of his nephew.
That application wa^ signed by Munna Das, as certificated
guardian of the plaintiff appellant. The Court acceded to this
application and directed that Hanuman Prasad, the plaintiff
appellant, should be made a party defendant to the suit, and
directed him to file a written statement. No application
whatever was made under the provisions of section 44S of the
Code of Civil Procedure for the appointment of a guardian ad
litem for Hanump-n Prasad, who was a minor. The snifc pro
ceeded in the absence of a guardian ad litem, and the sale of
the property was ultimately carried out. Munna Dan put in a
written statement, professing to act as guardian of his nephew,
and filed an appeal against the decree which was passed in the
suit, but allowed tiie appeal to bo dismissed for default.
Now, the provisions of section ■'.143 are imperative. They
direct that where a defendant is a minor the Court shall appoint
VOL, X X V I I I ,] ALLAHABAD SERIES. 139
a proper person to be guardian for the suit for such minor to put 1905
in a defence and generally to act on his behalf iu the conduct of
H anuman
the case. It is abundantly clear in this case that Munna Das P basad
D.
was not a proper person whom the Court, if it had been made MUHAltMAD
aware of the facts, would have appointed as guardian. la the I sh aq.
1905 mere irregularity under section 578 of the Code of Civil Pro
H ah um an
cedure and not an error fatal to the suit. Their Lordships in
PKASAD their judgment say (at p. 103.1 of the report) as follows :—■
■0 .
M uham m ab “ The present plaintiffs were substantially sued in the former
I shaq.
suit and the alleged fraud has been negatived. It appears to
their Lordships that they were effectively represented in that
suit by their mother and with the sanction of the Court, and for
the reasons given by the first Court their liordships attach no
importance to the certificate of Diirga Dutb. There is nothing to
suggest that their interests were not duly protected. The only
defects which can be pointed out are that no formal order
appointing the mother of the plaintiffs to be their guardian ad
litem is shown to have been drawn up j and that it is not defin
itely shown that any attempt was made to serve the summons
in the former suit upon the infants perrionally or upon their
mother^ a parda-nashin lady^ befcxe serving it upon Gajadhar,
the only adult male member and the kwrta of the family. It
has not been shown that the alleged irregulaiities caused any
prejudice to the present plaintiffs ; nor indeed could there well
be any, since it has been found that the original debt was one
for which the present plaintiffs were liable.”
It is clear from this language that what their Lordships held
was that where orders were passed appointing a guardian ad
but suck order.^ were not drawn, up, the omission to draw
up formal orders was a mere irregularity, and that, it appearing
that there had been effective representation of the nunors in the
suit by their mother, and there being nothing to Huggest that
their interests were not protecte<l, and in view of the fact that
they were liable for the debt »ued for, the irregularity would
not be fatal to the pale. Now, in the case before us we find
that the debt in Respect of which the suit was brought was a
debt of the uncle, and of the uncle alone.
We find that the uncle did not eff*ectivcly defend the
interests of the plaintiff appellant, but, on the contrary, acted
dishonestly and improperly in bringing in his nephew into a
suit with which he had originally no concern wliatcvor, and
entirely neglected his duty towards his nephew and allowed
a decree by default to be passed. We may further point out,
VOL. x x v i i i . ] A L L iflA B A D SERIES. 141
in answer fco the contention that has been strenuously urged by 1905
Mr. Baldeo Ram on behalf of the respondent in regard to the Hvkumak
non-observance of the imperative provisions of section 443 of the PBABA.B
V.
Code, that there is a recent pronouncement of their Lordships M uham m ad
1895
the provisions of section 566 of the Code oi Civil ProcediirG,
remit to the lower appellate Court tlie following issue for deter
H ahttm an
F r a SAD m ination D id the house mentioned in the pleadings belong
V.
.M u h a m m a d to Munna Das or to the plaintiff appelhint, Ilauuman Prusad,
I sh aq.
on the 18th of June 1891, the date of the mortgage by Munna
Das to Ajudhia and Munni L:il?
This issue will be determined upon the evidence already
before the Court. On return of the finding the parties will
have the usual ten days for filing objeclionB.
Issue referred.
(1) (1890) I. L. ll„ 2li Mml, 210. (3) (18;jG) I. L. 11., 18 All,, 303.
(2) (1002) 4 Uombay Law Koporlci'j 750. (■I.) Weekly No lea, 1904, p. 171