YAKUB CHRISTIAN Vs. PATRAS MUNDA

JUDGEMENT

(1.) The suit out of which this appeal arises was instituted for partition by three plaintiffs, Soma Munda, who apparently for this purpose represented his own sons together with two minors, grand-nephews of Soma Munda, represented by Soma Munda as their next friend. The suit was decreed by the Subordinate Judge and the defendants appealed to the Judicial Commissioner of Chota Nagpur. During the pendency of the appeal Soma Munda died, and the appellants obtained substitution in his place of the names of his sons. These sons of Soma Munda were cousins of the fathers of the minor respondents; but no step was taken to appoint a guardian-ad-litem for the minor respondents for the appeal. This ought to have been done by the Court under Order 32, Rule 11, Civil P.C. The Judicial Commissioner in due course heard the appeal in the absence of a guardian-ad- litem for the minor respondents with the result that the decision of the Subordinate Judge was reversed and the appeal was decreed. Plaintiffs now come up in second appeal from that decision.

(2.) It is argued that the absence of a guardian-ad-litem for the minor respondents at the time of the hearing of the appeal in the Court of the Judicial Commissioner renders the appeal of no effect against these respondents; and as the suit is one for partition, the result would be to render the decree altogether ineffectual. It is suggested on behalf of the defendant-respondents to this appeal that it has not been proved that Dayal Munda and Johan Munda were minors at the time of the hearing of the appeal in the Court of the Judicial Commissioner; but they were so described in the defendants memorandum of appeal in that Court; and it has never at any time been suggested that they were then other than minors. The order which must be made in this appeal is an order similar to that which was made in Jagarnath V/s. E.I. Ry. Co. 1928 Pat 168. The decree of the lower appellate Court must be set aside and the appeal must be remanded to that Court for rehearing according to law. It was not strictly speaking the duty of the appellants in that Court to appoint a guardian ad litem for the minors, and so they should not properly be made responsible for the costs of the appellants in the second appeal in this Court. The result is that the appeal is allowed, the decree of the Judicial Commissioner is set aside and the appeal is remanded to him for disposal according to law. Each party will bear his own costs in the second appeal in this Court. Costs of the suit and costs of the lower appellate Court will abide the final result. Rowland, J.

(3.) I agree.