KALACHAND BYSACK Vs. AMULYADHONE BANERJEE

JUDGEMENT

(1.) This is a suit of a somewhat unusual kind. There was a suit of 1904 relating to a certain debutter estate. It appears there were two families, each of which sought to have its members appointed as shebaits. One family may conveniently be referred to as the Bysacks, and the other family as the Setts. Litigation was prolonged, and in 1919 there was an appeal to the Privy Council. At that stage a gentleman named Atul Chunder Bysack was a defendant in the suit, and as such a respondent in the appeal. It is stated however that he took nO great interest in the litigation either when it was before this Court or when the appeal was pending before the Judicial Committee. He died in 1922, leaving him surviving his wife, a lady named Nandarani Dassee, and the three plaintiffs before me, all of whom were then infants.

(2.) In December 1922, Mr. J. C. Dutt, who was acting for one of the Sett family, took out notice of motion for delivery by certain of the Bysacks of the thakur to his client. This notice was served on the present plaintiff as the sons and heirs of Atul Chunder Bysack. On 5th January 1923, Mr. Dutt wrote to Nandarani that, unless she applied as natural guardian to have herself appointed as guardian ad litem of her minor sons, he would make an application to have an officer of the Court appointed as such guardian under Order 32, Rule 4(4). On 10th January 1923, Mr. C. C. Bose wrote on behalf of Nandarani to Mr. Dutt saying that owing to the fact that she was in mourning occasioned by the recent death of her husband, she was unable to consider her position and asking that the application should stand over for a fortnight. Apparently no notice was taken of this letter, and on 15 January 1923 an order was made by which the defendant was appointed guardian ad litem. The defendant states that he was orally examined to ascertain if he had any interest adverse to the minors, and he satisfied the Master on that point. It is not suggested that in fact he had any adverse interest. I here wish to draw attention to the fact that the defendant was in no way responsible for the fact that the lady's request contained in the letter to Mr. Dutt was disregarded. On 16th January the defendant wrote to the lady informing her of his appointment and asking for her instructions.

(3.) On 18 January the lady replied that she was herself willing to act as guardian, and that the defendant should acquaint the Court of the fact. The defendant states that he did inform the Court of the contents of the lady's letter as soon as he had the opportunity, and I see no reason to think he is not telling the truth. Although apprised of the appointment the lady took no steps to have it set aside or to substitute herself for the defendant. I myself cannot see that there was anything irregular in the appointment. A great deal has been said on the question of the terms of the appointment, and my attention has bean very properly drawn to the fact that it was of a limited character inasmuch as the summons only asked that the defendant should be appointed to represent, appear and act for the plaintiffs on the hearing of the application to be made on 15 January.