SOHANLAL Vs. BABULAL

JUDGEMENT

(1.) THIS second appeal has been preferred by Sohanlal, who was one of the defendants in the suit, as he has been unsuccessful in both the courts below.

(2.) THE basic facts of the case are not in dispute. Defendants Hastimal, Mangilal brought a suit (No. 365 of sec. 2004) against Mangilal for the realisation of Rs. 874/-, in the court of Munsiff, Rajsamand. Mangilal died soon after and the plaintiffs in that suit made an application that his son Babulal, the present plaintiff, who was less than two years old at that time, may be brought on the record as his legal representative and that his mother Smt. Daya Bai may be appointed his guardian-ad-litem. THE Munsiff thereupon issued notice, Ex. A. 1 in May, 1949, to Babulal, through his mother as guardian, stating that the plaintiffs had applied for (i) making him a party to the suit as the legal representative of Mangilal deceased and (ii) the appointment of Babulal's mother as his guardian-ad-litem because of his minority, and that, if there was any objection, it may be filed on August 10, 1949, in the Munsiff's court. THE notice was served on Smt. Daya Bai and her brother Devilal on June 3, 1949, at village Oda, where the minor and his mother were living with the mother's brother Devilal ever since the death of Mangilal. No one appeared in the Munsiff's court on the appointed date. THE court passed on order (Ex. 1) on August 13, 1949, making Babulal a party to the suit, as the legal representative of his father Mangilal, with his mother Smt. Daya Bai as his guardian-ad-litem. At the same time, it directed the issue of a notice to the newly appointed guardian to file a written statement. Notice Ex. A. 2 was thereupon issued to Smt. Daya Bai fixing August 18, 1950 as the date of the hearing. Its service was effected personally on her on July 31, 1950, but no one appeared in the trial court. An order (Ex. 2) was then made that as the minor's guardian did not appear inspite of service, the case may proceed ex-parte against him. It resulted in an ex-parte decree on August 19, 1950. In the decree-sheet (Ex 4) it was clearly stated that the decree had been passed against the minor under the guardianship of his mother Smt. Daya Bai. THE decree-holders applied for execution and attached the house of Mangilal in village Amet. Notice Ex. A. 3 dated March 20, 1952 was issued under Order, XXI rule 66, Civil Procedure Code to the minor, under the guardianship of his mother, and it was served on her and her brother Devilal on July 19, 1952. No objection was filed and the house was sold on January, 1955. It was purchased by decree-holder Hastimal, through Chunilal defendant No. 3. THEreafter, an objection was filed by Babulal through his mother Smt. Daya Bai under Order XXI, r. 100, Civil Procedure Code, but it was dismissed by order Ex- 3 dated April 8, 1954. Almost an year thereafter, the present suit was filed by Babulal on February 21, 1955, in the Munsiff's court at Rajsamand, with Devilal as his next friend. At that time Babulal was 7 years old. Sohanlal was arrayed as a defendant in the suit for he claimed to be in possession of the suit house. THE suit was based on the pleas that Babulal was not bound by the ex parte decree dated August 19, 1953 because (i) his mother had been appointed his guardian (for the suit) without her consent, and (ii) he was a minor and no one appeared in the trial court to represent him. It was therefore prayed that a declaration may be given that the decree in suit No. 365 of sec. 2004 was void and ineffective against him, that the sale of the house to Hastimal in the execution proceeding was also void and ineffective, that the plaintiff was entitled to possession of the suit house and that he was also entitled to mesne profits for its use and occupation by the defendants.

(3.) THE remaining case on which reliance has been placed by Mr. Parakh is Khiarajmal vs. Daim (21 ). That is a judgment of their Lordships of the Privy Council and dates back to 1904. But it was quite a different case because the judge below had accepted without question the statement on record that one Amir Bux was the legal representative of Naurez and Alahnawaz was his guardian and had not applied his mind to the question of the minor's representative because the proceedings were cut short by an agreement to refer the case to arbitration. This was why their Lordships held that the estate of Naurez was not really represented in law or fact.