These two second appeals arise out of a suit brought by the first respondent in these appeals for a declaration of tenancy right and for possession in regard to 2B 4K. 7 lechas of land on the ground that the plaintiff Bhagaban Chandra Choudhury had purchased the said land along with other lands on 5-6-67 under a sale deed executed in his favour by one Mustt. Sabitri Bala Dasya, widow of late Golok Chandra Das and mother of pro forma defendant No. 8 Tankeswar Das and pro forma defendant No. 9 Ratneswar Das, who are minors In the suit pro forma defendant No. 10 contended that there was no legal necessity for the sale and that no consideration had passed and to a similar effect was the written statement filed by the Court guardian appointed for the minors. 2. On trial the Munsiffs' Court at Bar peta decreed the suit in regard to the share of Sabitri Bala Dasya pro forma defendant No. 10 in the suit properties He. however, dismissed the suit against the share of the minors pro forma defendants 8 and 9, holding that the sale was in violation of Section 8 (3) of the Hindu Minority and Guardianship Act. 195R 3. The plaintiff in the suit preferred an appeal against this judgment and decree of the Munsiff and this appeal was numbered as Title Appeal No. 74/61 and this appeal was preferred mainly against the minors who are shown as represented by their natural guardian, the mother Sabitri Bala Dasya pro forma defendant No. 10. It may be noticed that the main contention in this appeal was that the Court below should have granted a decree not only in regard to the share of the mother pro forma defendant No. 10, bxit also in respect of the shares of the two minors-pro forma defendants 8 and 9. 4. The widow, daughters and two sons of late Balak Chandra Kalita defendant No. 1 as heirs and legal representatives of defendant No. 1, and defendants Nos. 2 and 3, who are also sons of defendant No. 1, who died during the pendency of the suit, preferred an appeal against the judgment and decree of the Munsiff in the above suit and this appeal was numbered as Title Appeal No. 76/6!.
2 and 3, who are also sons of defendant No. 1, who died during the pendency of the suit, preferred an appeal against the judgment and decree of the Munsiff in the above suit and this appeal was numbered as Title Appeal No. 76/6!. In this appeal they claimed that they were not given an opportunity to produce the original partition deed under which Balak Chandra Kalita, the predecessor-in-interest of the appellants in Title Appeal No. 76/61 and Golok Chandra Das, husband of pro forma defendant No. 10 and father of minor pro forma defendants 8 and 9, had divided their family properties and that if that deed had been allowed to be produced, it would have shown that the suit property fell to the share of Balak Chandra Kalita and not to the share of Golok Chandra Das, so that there could be no decree against them in regard to the suit property. 5. Both these appeals came up for hearing before the Subordinate Judge, Lower Assam Districts at Gauhati, who by one and the same judgment dismissed Title Appeal No. 76/61 and allowed Title Appeal No. 76/ 61. Second Appeal No. 91/64 has been preferred by the minor pro forma defendants Nos. 8 and 9, represented by the Court guardian, against the judgment and decree passed by the Subordinate Judge in Title Appeal No. 74/ 61 and Second Appeal No. 92/64 was filed by the widow, daughters and sons of defendant No. 1, as also by the defendants Nos. 2 and 3 against the judgment and decree of die Subordinate Judge passed as regards Title Appeal No. 76/61. 6. So far as Second Appeal No. 92/64 filed by defendants Nos. 1 to 3 is concern-«d. the matter could be disposed of easily When these defendants applied to be given time to produce the partition deed and time was not granted by the learned Munsiff, it was open to these defendants to have applied under O. 41 R. 27, Civil Procedure Code in the appeal before the lower appellate Court pointing out that the Subordinate Judge may be pleased to permit additional evidence being recorded, which had not been permitted in the trial Court. This opportunity was not availed of.
This opportunity was not availed of. It is, there-tore, not open to the appellants to contest in second appeal that certain evidence had been shut out and on that ground this Court should interfere with the judgment and decree of the first appellate Court. No other ground has been urged in support of the appeal and, therefore, the appeal fails and is dismissed. 7. The point for consideration in Second Appeal No. 91/64 is whether the Title Appeal No. 74/61, which was filed against the minor pro forma defendants 8 and 9, had been properly filed and whether the minors could be said to have been properly re presented in their appeal and whether the judgment arid decree passed by the lower appellate Court could be supported on the materials placed on the record. The main point that Mr. Bhattaeharjee, the learned counsel for the appellants sought to urge is that as the minors were represented in the trial Court by a guardian-ad-litem appointed by the Court, whose appointment continues throughout the proceedings in appeal as well, and as this guardian-ad-litem has not been impleaded in the appeal itself before the lower appellate Court to represent the interests of the minors, as it should have been, the minors must be held not to have been represented at all in the appeal. Mr. Bhattacharjee further contended that not only there was no representation, but there has been no proper filing of the appeal itself against the minors, as the appeal was not filed against the minors represented by the Court guardian. In support of this contention Mr. Bhattacharjee placed reliance under Order 32 R. 3 (5) of the Code of Civil Procedure, which runs as follows:- "A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any Appellate or Revisional Court and any proceedings in the execution of a decree' . From this it is contended that the only person that could represent the minors once a guardian-ad-litem is appointed, is that guardian and no other, and if the minors are not represented by him, it must be deemed that the minors had not been represented at all in the litigation.
From this it is contended that the only person that could represent the minors once a guardian-ad-litem is appointed, is that guardian and no other, and if the minors are not represented by him, it must be deemed that the minors had not been represented at all in the litigation. In this context sub-rule (1) of Rule 3 of O. 32 and sub-rule (4) of Rule 3 of Order 32 may be noticed. Sub-rule (1) provides : "Where the defendant is a minor, the Court on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor". 8. Sub-rule (4) provides : "No order shall be made on any application under this rule except upon notice to the minor and to any guardian of the minor appointed or declared by an authority com- patent in that behalf, or, where there is no such 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 per son served with notice under this sub-rule". From this sub-rule it follows that no order shall be made on any application under this rule except upon notice to the minor and to any guardian-ad-litem of the minor appointed or declared, and sub-rule (5) follows it up by making the continuance of an appointment of a guardian-ad-litem throughout the proceedings obligatory even in the appellate and revisional stages. 9. It is not disputed in this case that Title Appeal No. 74/61 was filed against the minors, without their being represented by the guardian-ad-litem, who had been appointed in the suit representing their interests in the litigation. On the other hand, contrary to the provisions of the Civil Procedure Code, the mother of the minors was shown as the person in whose custody the minors are and who is supposed to represent them as such in the appeal. Thus sub rule (5) of Rule 3 of Order 32 has not been complied with in this case. The question that falls to be considered consequently is what is the effect of such non-compliance. In this context Dr.
Thus sub rule (5) of Rule 3 of Order 32 has not been complied with in this case. The question that falls to be considered consequently is what is the effect of such non-compliance. In this context Dr. Medhi, the learned counsel for the plaintiff respondent No. 1 placed reliance on a number of decisions, namely,(1907) ILR 29 All 290, Dammar Singh v. Pirbhu Singh. (1908) ILR 30 All 55, Rup Chand v. Dasodha, AIR 1948 Bom 180, Onkar Bhika v. Vithal Onkar and AIR 1954 Pat 349 , Krishna Behari v. Kedar Nath. In (1908) ILR 30 All 55, where a guardian-ad-litem of a defendant respondent was not made a party to an appeal filed by the plaintiff until after the period of limitation for filing such appeal had expired, it was held that the appeal was not for this reason time-barred. It is not clear from this decision how the minor was represented if the guardian-ad-litem had not been impleaded as a party. Apparently as the appeal in that case had been preferred against the minor, the elementary precaution of making the guardian-ad-litem of the respondent a party representing the interest of the minor had been overlooked. However, in the absence of any clear indications on the facts of this case, this decision is not of much assistance. The decision in (1907) ILR 29 All 290, is also to the similar effect. It must also be noticed that this decision was of the year 1907, that is, before the present Civil Procedure Code had been enacted. In AIR 1948 Bom 180, the question arose as regards the determination of a guardian in a subsequent suit. Obviously sub-rules (4) and (5) of Order 32, Rule 3, Civil Procedure Code deal with cases of the same proceedings or subsequent proceedings arising out of the initial proceedings.
In AIR 1948 Bom 180, the question arose as regards the determination of a guardian in a subsequent suit. Obviously sub-rules (4) and (5) of Order 32, Rule 3, Civil Procedure Code deal with cases of the same proceedings or subsequent proceedings arising out of the initial proceedings. It is observed in this case that where a guardian of a minor has been appointed by the Court but in a subsequent suit against the minor on a mortgage, another person is appointed as the minor's guardian-ad-litem, the previous appointment not having been brought to the notice of the Court, and such a person defends the suit and decree is passed and property sold in execution, the passing over of the certificated guardian is no more than a mere irregularity and would not of itself vitiate either the decree or a sale consequent upon such a decree. It was further held that in the absence of any allegation of fraud or prejudice to the minor caused by such an irregularity, the proceedings must be regarded as valid and the auction sale upheld. But the learned Judge in that case apparently did not consider the provisions of sub-rule (5) of Rule 3 of Order 32, Civil Procedure Code, which dealt with the appointment of a guardian for the suit and his continuance during the stages of appeal and revision arising out of that suit. The decision in AIR 1954 Pat 349 , cannot be of much assistance, as it is based on the amendment of Rule 4 (4) of Order 32 by the Patna High Court, with which we are not concern ed in this case. 10. The Code of Civil Procedure enjoins under Order 32 R. 3 (5) that once a person is appointed a guardian-ad-litem, he should continue to represent the minor's interest throughout the litigation, in which the appointment of the guardian-ad-litem is made. As the decree in favour of the minors was passed by the trial Court with the guardian ad-litem representing them, whereas the appeal against that decree of the trial Court was filed without the minors being represented by a guardian-ad-litem, the appeal before the lower appellate Court cannot by any stretch of imagination be held to have been properly filed.
As the decree in favour of the minors was passed by the trial Court with the guardian ad-litem representing them, whereas the appeal against that decree of the trial Court was filed without the minors being represented by a guardian-ad-litem, the appeal before the lower appellate Court cannot by any stretch of imagination be held to have been properly filed. Again it is clear that the trial Court had taken all the trouble of appointing a guardian-ad-litem for the litigation and all the care which the law bestowed in protecting the interest of the minors in a litigation is, as it were, thrown to the winds by the guardian-ad-litem not being impleaded to represent the minors before the lower appellate Court. If some unconnected, or otherwise irresponsible person is shown as a guardian to represent the minors, it is not difficult to hold that the minors' interest had not been represented at all in the litigation. All this would be academic in view of the plain language of sub-rule (5) of Rule 3 of Order 32, Civil Procedure Code, which enjoins that when in a litigation a guardian-ad-litem is appointed, he and he alone could represent the interest of the minor. In this view the position comes to this that when an appeal had been preferred against the minors to get rid of a decree passed in favour of the minors without the minors being represented by the guardian-ad-litem and the decree is reversed by the appellate Court, injustice and prejudice would be writ large in these proceedings, and no further proof is really necessary to show that the minors' interest must necessarily have been prejudiced. It is because of the fact that the minors have not been represented that the learned Subordinate Judge did not care to go even to the most vital question, namely, whether there was legal necessity or not to support the alienation made by the natural guardian. Dr. Medhi's placing reliance on the appellants not pressing other issues before the lower appellate Court has no relevance as the minors were not represented and there was nothing that they could press in regard to the issues in which the decision of the trial Court was in their favour.
Dr. Medhi's placing reliance on the appellants not pressing other issues before the lower appellate Court has no relevance as the minors were not represented and there was nothing that they could press in regard to the issues in which the decision of the trial Court was in their favour. Taking all facts and circumstances into consideration, I am satisfied that there has been no valid appeal preferred before the lower appellate Court against the minors, pro forma defendants, Nos 8 and 9 and, therefore any decree passed in such an appeal cannot stand the scrutiny of law. 11. Dr. Medhi contended that as the lack of representation of the minors is a kind of irregularity, the whole matter should be regarded on that footing and could be set right by a remand, so that proper steps may be taken to have the minors represented by the Court guardian and the appeal proceeded with for hearing. This would amount to giving a new lease of life to an ^appeal, which had ceased to exist by efflux of time and nothing can be more prejudicial to the interest of the minors than extending such a privilege to a negligent party, who did not take necessary steps or procedure in filing an anneal against the minors appellant. 12. In the result, therefore. Second Appeal No. 92/64 is dismissed and the judgement and decree of the Court below in Title Appeal No. 76/61 are confirmed and Second Appeal No. 91/64 is allowed and the judgment and decree of the Court below in Title Appeal No. 74/61 are set aside. The judgment and decree of the trial Court are thus confirmed in their entirety. 13. In the circumstances, there should be no order as to costs in both Second Appeal No. 91/64 and Second Appeal No. 92, 64 Ordered accordingly