TRESA XAVIER Vs. MARY SIMON

JUDGEMENT

(1.) RP 667/2016: This review is pointing out an ad litem irregularity. The review petitioner was a minor in the proceedings before the District Court and became major before the disposal of the case before the District Court. The review petitioner was shown as a minor in the appeal under review as well. The records of the District Court show that there was no application for appointment of a guardian for the minor before the District Court nor had the Court appointed a guardian. The point that arises in this review is whether the decree passed against a minor without the minor being represented by a guardian, duly appointed by a Court, renders the decree as nullity. So also the dismissal of the appeal, overlooking the nullity of the decree passed by the District Court warrants a review at the instance of the minor.

(2.) The point of law arises in the context of Order 32 Rule 3 and Rule 3A of the Code of Civil Procedure, 1908 (CPC).

(3.) Brief facts are; one Thomman held properties in and around Ernakulam. He died intestate. Xavier and Antony were his sons. Mary was his only daughter. Xavier died on 12/1/1979. Xavier's wife Tresa Xavier filed O.S. No.112/84 for partition of the property that belonged to Thomman. Tresa claimed that her deceased husband Xavier inherited half share and another half share to his brother Antony. Overruling the claim of Tresa, a preliminary decree was passed allotting 1/3rd share to each child of the deceased Thomman. Tresa claimed that before the preliminary decree was passed, Antony, her husband's brother executed Ext.A10 Will on 3/4/1986. Antony died on 16/8/1994.