KUBER UPADHIA Vs. RAMAKAR DAT UPADHIA

JUDGEMENT

(1.) This appeal arises out of a suit brought by Kuber Upadhia, a minor, for a declaration that the decree in suit No. 308 of 1912 was not binding on him because he was not properly represented in that suit. That suit was brought on a mortgage bond executed by Muasi, the father of the plaintiff-appellant and Hanuman, Muasi's brother. The plaintiff in that suit joined the two minor sons of Muasi, one of them being the plaintiff, as defendants and proposed that Muasi should be appointed their guardian ad litem, As a matter of fact, Mt. Sonbarsa Kunwar, the mother of the plaintiff, was appointed guardian by the Court, in spite of the fact that when notice was served on her inviting her to become guardian she refused to accept the notice. At the hearing the father filed a written statement contesting the suit on his own behalf and on behalf of his sons and he defended the suit. The suit was decreed and the father did not appeal.

(2.) In this suit as brought the allegation in the plaint was that the father's failure to appeal from that decree was gross negligence, and that therefore, the decree should not be held binding on the plaintiff. A further allegation was made in the plaint that the father had actually colluded with the plaintiff.

(3.) The trial Court decreed the suit holding that the minor plaintiff was not properly represented in the former suit and that, therefore, the proceedings as against him were void. On appeal the learned District Judge reversed this decree. He held that although the proceedings as to the appointment of a guardian were irregular nevertheless the father had, in fact, acted as guardian and defended the suit and that his interests were in no way adverse to his sons who were born after the mortgage was made, (so that no question of legal necessity arose), and that the sons had been in no way prejudiced.