SULTAN Vs. HARDHIYAN

JUDGEMENT

(1.) The facts in the suit under which this appeal arises, afford a good illustration of the difficulty to which a person may be put when he is endeavoring to enforce a document, which he holds against the heirs of a deceased executant.

(2.) The plaintiffs father, Surja, had transferred property on more than one occasion. In 1897 he executed a mortgage in favour of a certain Bakhshi. In 1900 he executed a usufructuary mortgage of the same property in favour of Hardhiyan, the present defendant-respondent. It is not clear how the mortgage of 1897 was satisfied, but it apparently was satisfied, for we hear no more of Bakhshi. Surja, although he executed the deed of usufructuary mortgage, did not give up the possession of the property, and executed another deed in 1905 by which his retention of possession was regularised and by which he mortgaged his equity of redemption under the deed of 1905 in security for the re-payment of the rent due upon the property, the satisfaction of which formed the consideration of the deed of 1905. It will thus be seen that ha executed the deed of 1905, in payment of amounts that were actually due by him by way of rent and that, had he not executed that deed, he would have been liable to ejectment from the property in respect of which he had already executed a deed of usufructuary mortgage. Surja then died and Hardhiyan instituted a suit upon this deed against the present plaintiffs appellants, who are Surja's sons and who were then minors. It is Hardhiyan to whom I referred as the plaintiff who has had trouble in obtaining satisfaction of the amount due on his deed after the death of the executant.

(3.) When he instituted his suit in 1909, he nominated the defendants mother as their guardian ad litem. As far as I can gather, she was the most suitable person to be nominated for that position and there does not appear to have been anybody else who could have been nominated. A notice was served on her personally, to which she did not pay the slightest attention. It appears to me that the plaintiff knew no other relation or friend who could be appointed guardian ad litem. Then the plaintiff came to the Court to appoint the Nazir of the Court as guardian ad litem. It is palpable that a Nazir of Judge's Court is not usually a very suitable person to appoint as a guardian ad litem of a minor; but the question, which few Courts appear to have tackled in the past is, what has the plaintiff to do when the person, who ought to be guardian ad litem, refuses to accept the responsibility without any reason at all? The plaintiff has in these circumstances, to seek the assistance of an officer of a Court.