MUBARAK Vs. DEPUTY DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) THE only question involved in this writ petition is whether the compromise decree entered into on behalf of the minor by a guardian who had not been so appointed under Order 32 Rule 3(3) of the Code of Civil Procedure is void. The relevant facts for deciding the said controversy are as under.

(2.) THE land admittedly belonged to one Bunda. He had two wives. One of them was Smt. Waziran. She executed a sale deed of her one half share in the property, left by Bunda, in favour of Mubarak and Smt. Foojan. After the execution of the aforesaid sale -deed a suit was filed in the year 1958 in the Civil Court for the cancellation of the aforesaid sale -deed. Smt. Foojan as well as Mubarak were impleaded as parties in the aforesaid suit. Mubarak was admittedly a minor at that time but was over ten years of age. Shakir, the father of Mubarak, was mentioned by the Plaintiff of the aforesaid suit for being appointed as the guardian of the minor. The notices were issued on the aforesaid application for the appointment of the guardian, but before the notices were returned a compromise was entered into in the suit and Shakir, the father of the Petitioner signed the said compromise on behalf of the minor. As a result of the aforesaid compromise the claim of the Petitioner to the extent that he had purchased under the saledeed, was given up. He was given along with his sister Smt. Foojan only an area of six bighas and odd.

(3.) LEARNED Counsel for the Petitioner contended that the Deputy Director of Consolidation committed a mistake apparent on the face of the record in holding that the said compromise was binding on the Petitioner. He invited my attention to Order 32 Rule 3 of the Code of Civil Procedure. He urged that unless an order of appointment of guardian ad litem is made in accordance with the provisions of Order 32 Rule 3 of the Code of Civil Procedure no one is authorised or entitled to function as a guardian of the minor. The submission of the learned Counsel for the Petitioner appears to be well founded. The provision of Order 32 Rule 3 of the Code of Civil Procedure as to the appointment of a guardian ad litem are imperative. In order to pass a valid and binding decree it is necessary that the appointment of guardian as contemplated by the aforesaid order has been duly made. If such an order has not been made the decree would be ineffective and not binding on the minor. A reference be made to the amendment made by the Allahabad High Court to the aforesaid Order 32(3) of the Code of Civil Procedure by which it has been directed that in every case where a minor is of over ten years of age a notice of the appointment of the guardian shall be issued to the minor as well. In the instant case I have already mentioned above that Mubarak, the Petitioner was admittedly over ten years' of age at the time when the aforesaid suit was filed. As a matter of fact a notice of the appointment of guardian had also been issued to him but without waiting for the service or return of the aforesaid notices the compromise was entered into on 4 -10 -1968. Consequently I find that when the service of notice on the minor Defendant had not been made and there was no order appointing a guardian it must be held that the compromise decree entered into was void as against him. A reference may be made to the authorities reported in Nathu Mal v. Mohammad Nazir Beg : AIR 1955 All. 534 in which it was held that a decree without the appointment of guardian is a nullity and void. Dealing with the same controversy in the case of an insane, where a guardian is required to be appointed under Order 32(15) of the Code of Civil Procedure the Supreme Court held that when no guardian of an insane was appointed and a decree was passed without such an order of appointment the decree was a nullity. The said case is reported in Ram Chand Arya v. Bhan Singh, AIR 1966 SC 594.