A RAMASWAMI CHETTY Vs. DORAISAMI ALIAS LATCHUMAN CHETTY

JUDGEMENT

(1.) This Second Appeal arises from a suit for partition by the plaintiffs against their father, the 1 defendant and the 2nd and 3 defendants, 2nd defendant being an alienee of certain property under a decree against the 1 defendant and the plaintiffs. The question is whether that decree binds the plaintiffs, in as much as it is said that it was obtained against them, when they were minors in circumstances which make it invalid. Those circumstances were set out in the plaint as being that the decree was obtained by fraud and was not binding on the minor plaintiffs.

(2.) The fraud in question was not further specified in the plaint. Primarily however we are concerned with the grounds, on which the lower appellate Court has given judgment in the plaintiff's favour. Those grounds are not that there was generally any fraud in the obtaining by the 3 defendant of the decree or in the purchase by the 2nd defendant at the subsequent Court sale but that the 2 to 5 defendants then in that suit (plaintiffs) were not represented by any guardian legally appointed, the Head Clerk of the Court, who was on the record as their guardian, not having been legally appointed as such. The lower appellate Court held that the plaintiffs were not properly represented and the proceedings are not binding on them. It therefore went on to retry the issues in the previous case on their merits.

(3.) The objection to the appointment of the Head Clerk which the lower appellate Court has sustained, was (as we understand it) that there was no affidavit alleging there was no other person fit and willing to act as the guardian of the plaintiffs and no attempt was made to appoint the uncle of the plaintiffs as their guardian ad litem. "Though evidence was taken for the purpose of passing a decree against the plaintiffs also the plaintiffs were practically undefended, for, no evidence was tendered on their behalf after 1 defendant's oath was accepted. Even the evidence then on record throws a certain amount of suspicion on the claim then made. Merely because another was appointed the guardian of the plaintiffs in the place of 1 defendant who refused to act it cannot be said that the plaintiffs had been properly represented in that suit. "This satement of the grounds of the lower appellate Court's decision is taken from its judgment. But it is a little difficult to understand the reference to the absence of any evidence adduced for the defence in the previous suit, especially in view of its finding that the guardian appointed was careful and diligent and properly conducted the defence and was not negligent. We shall however return to that point in the sequel.