INDER PAL SINGH Vs. BABU SINGH

JUDGEMENT

(1.) THIS is a plaintiff's appeal arising out of a suit for a declaration that the plaintiff was the owner of one-sixth share in a certain grove, for an injunction restraining defendants 1 and 2 from butting away the trees and for damages. The allegations were that the grove belonged originally to one Mt. Umeda Kuer who had got it by a gift deed dated 7-2-1898, and was thus the absolute owner of the grove. Mt. Umeda Kuer made a Will in favour of Gajraj Singh, the plaintiff's father, and Mullu Singh, her, brother. After Umeda Kuer's death the heirs of Gajraj Singh and Mullu singh inherited the property.

(2.) THERE was a decree against Mt. Umeda Kuer and it appears that it was put into execution and the grove was sold on 19-1-1943. The auction purchaser sold the trees to defendants 1 and 2 who started removing them and thereupon the plaintiff being aggrieved filed a suit claiming a declaration and an injunction as mentioned above and Rs. 117/- as damages by way of compensation for his share of the trees that had been cut and removed away.

(3.) THE suit was contested on various grounds. It was alleged that the grove did not belong to the plaintiff inasmuch as by reason of the auction sale in execution of the decree against the plaintiff's testator the entire property had been sold away and the above auction purchaser was perfectly entitled to sell away the trees to defendants 1 and 2. The main question that arose for decision was whether the plaintiff's share in the grove in suit had been validly sold away. Incidentally arose the question as to whether the plaintiff was properly represented in the execution proceedings in which the sale had taken place. The plaintiff alleged that his mother had been appointed a certificated guardian by an order dated 8-12-1938 and it was not open to the executing Court to appoint Brij Bhukhan Singh, the plaintiff's guardian-ad-litem while the certificated guardian was alive and had not been removed. The trial Court took the view that there was no valid appointment of a guardian of the plaintiff who was a minor in the, execution proceedings in which the sale of the grove had taken place. As such, the execution sale was not binding upon him. The trial Court also took the view that because the plaintiff derived his title under a will it was in the nature of an independent title and he was not a legal representative of Umeda Kuer and the property acquired under the sale by him could not be put to sale in the execution proceedings. The learned Munsif decreed the suit. On appeal the lower appellate Court held that the appointment of Brij Bhubhan Singh as guardian-ad-litem, while the plaintiff's mother was the certificated guardian was a mere Irregularity, and the execution proceedings could not be taken to be absolutely null and void. The Court further held that the view taken by the trial Court that the property which the plaintiff had derived under the will was not liable to sale in execution of a decree against Umeda Kuer his testator had no foundation in law. The lower appellate Court, therefore, allowed the appeal and dismissed the plaintiff's suit.