JINNAT ALI Vs. KAILAS CHANDRA CHOWDHURY

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Newbould in a suit for recovery of possession of land upon establishment of title.

(2.) The suit was dismissed by the trial Court and that decision has been successively affirmed in the District Court and in this Court. The disputed land belonged originally to the father of the plaintiffs and was sold in execution of a mortgage-decree when it was purchased by the defendants who were strangers to the proceeding. The only question is whether the sale so held was a nullity. The case for the plaintiffs is that after the decree had been obtained against their father, their father died. Execution was thereupon taken out against their mother as also against themselves represented to be under the guardianship of their mother. They urge that this was not a proper representation for the purpose of the execution proceedings and that consequently the sale has not affected their right, title and interest in the property. This contention has been negatived by all the Courts. We have examined the relevant papers and come to the conclusion that in the application for execution relief on the footing of the mortgage decree was sought against the widow and her infant sons represented by her.

(3.) No order can be traced for the appointment of the widow as the guardian ad litem for the purposes of the sale. But it has been shown that long after the sale had been held on the 13th September 1909, the widow did, on the 13 March 1916, apply on her own behalf and as guardian ad litem of her infant children to have the sale set aside. That application was considered on the merits and was dismissed on the 10 January. This order of dismissal was confirmed on appeal on the 21 April 1917. Thereafter the present suit was instituted on the 22nd December, 1917. In these circumstances, it is plain that the sale cannot be treated as a nullity, in view of the decision of the Judicial Committee in Malkarjun V/s. Narahari [1900] 25 Bom. 337. This is not a case, where there has been no representation of an infant in the suit so as to make it impossible for the plaintiff to obtain a valid and operative decree against him, as had happened in Khairajmal V/s. Dim [1904] 32 Cal. 296, Narasingh V/s. Jahi [1911] 15 C.L.J. 3, Jadow V/s. Chhagan [1881] 5 Bom. 306, Sajjal Hussain V/s. Sakal Rai A.I.R. 1922 Patna 442, Hatli Jha V/s. Lal Singh [1914] 21 C.L.J. 454; sea also Sarat Chandra V/s. Bibhabati A.I.R. 1921 Cal. 584, Rani Chhatrakumari V/s. Panda Radhamohan A.I.R. 1922 Patna 291, Muralidhar v. Pitambar A.I.R. 1922 All. 91. Reference may in this connection be made to the decision of the Judicial Committee in Krishna Pershad Singh V/s. Moti Chand [1913] 40 Cal. 635. In that case, the sale had been set aside by the primary Court on the ground that there were material irregularities which had resulted in substantial injury. On appeal to this Court the sale was confirmed on the ground amongst others that the mother was not competent to act as guardian on behalf of her infant son. The Judicial Committee held that this view was erroneous and that the mother was competent to institute proceedings to have the sale vacated. The Judicial Committee no doubt referred to the circumstance that there had not been a proper representation of the infant; but the sale was not set aside on that ground alone. This is clearly not explained in the judgment of this Court in case of Fani Bhusan V/s. Surendra Nath A.I.R. 1921 Cal. 476, where reference is made to the decision of White, C.J., in Ramaswami v. Oppilamani [1909] 33 Mad. 6.