KUNWAR PARTAB SINGH Vs. BHABUTI SINGH

JUDGEMENT

(1.) The suit in which this appeal from a decree of the Court of the Judicial Commissioner of Oudh has arisen was brought by Kunwar Partab Singh and Kunwar Ahbaran Singh in the Court of the Subordinate Judge of Sitapur against Bhabuti Singh and others on the 22nd February 1908. The plaintiffs, who are the appellants here, sought by their suit to have it declared that a decree which was made on the 15th December 1899 in a suit for preemption which had been brought by Bhabuti Singh, who is respondent here, on the 26th June 1899, against certain vendees and others, and in which the appellants, who were then minors, had been added as defendants, was not binding as against them. The plaintiffs- appellants also sought in this suit to have a decree set aside which had been made on the 15th December 1899 in a suit for preemption which had been brought on the 27th July 1899 by them under the guardianship of one Hari Pershad against vendees and others and in which Bhabuti Singh had been added as a defendant, and they claimed to be restored to the position which they had held prior to the 15th December 1899 and such other relief as they were entitled to.

(2.) The material facts which their Lordships find are briefly as follows: The plaintiffs were the sons of Raja Balbhaddar Singh who died on the 27th December 1897. The property of the joint family consisted of, amongst other things, shares in Mahal Ismailganj and Mahal Khushalpur, in respect of which Raja Balbhaddar Singh was at his death recorded in the Revenue Papers as the proprietor. After the death of Raja Balbhaddar Singh the defendant-respondent, Bhabuti Singh, assuming to act as the guardian of the plaintiffs and as the manager of their property, obtained in April 1898 mutation of names in the Revenue Papers in their favour. Syed Mohammad Ismail, Syed Idur Hasan and Syed Mohammad Sadig on the 3rd August 1898 sold certain shares in Mahal Ismailganj and Mahal Khushalpur to Munshi Niaz Ahmad, Babu Ram and Bhagwan Das. It was in respect of that sale that the suits for preemption of the 26th June 1899 and the 27th July 1899 were brought. The vendors and the vendees were original defendants to these suits. Bhabuti Singh had a right of preemption equal but not superior to the right of pre- emption of Partab Singh and Ahbaran Singh in respect of the shares which were sold in Mahal Khushalpur, and he had a right of pre-emption inferior to theirs in respect of the shares which were sold in Mahal Ismailganj. It is obvious that the interests of the minors Partab Singh and Ahbaran conflicted with the interests of Bhabuti Singh. On the 26th June 1899 Bhabuti Singh on his own behalf brought a suit to pre-empt the shares which had been sold in the two Mahals, and made the vendors and vendees defendants to the suit. On the 5th August 1899 Bhabuti Singh caused Partab Singh and Ahbaran Singh, who were then minors, to be added as defendants to that suit. According to the amended plaint, Partab Singh and Ahbaran Singh, minors, under the guardianship of Hari Pershad, were added as defendants under an Order dated 5th August 1899. The Court appears to have made an Order on the 5th August 1899 that Partab Singh and Ahbaran Singh should be added as defendants, but it does not appear that the Court had ordered that they should be added as defendants under the guardianship of Hari Pershad. The amendment of the plaint adding Partab Singh and Ahbaran as defendants was not attested by the signature of the Judge. No Order appointing Hari Pershad as a guardian for the suit for Partab Singh or Ahbaran Singh was applied for or was made. By Section 443 of the Code of Civil Procedure, 1882, it was enacted that:- Where the defendant to a suit is a minor, the Court, on being satisfied of the fact his minority, shall appoint a proper person to be guardian for the suit for such minor, to put in the defence for such minor, and general by to act on his behalf in the conduct of the suit.

(3.) By Section 441 of the same Code it was enacted that:- Every application to the Court on behalf of a minor (other than an application under Section 449) shall be made by his next friend, or by his guardian for the suit.