ONKAR BHIKA Vs. VITHAL ONKAR

JUDGEMENT

(1.) This appeal arises out of a suit to recover possession of survey No. 1. plot No. 2, of the village Valwadi, purchased by the plaintiff at an auction held in execution of his own mortgage decree against the minor defendant. The defendant's father mortgaged the land to the plaintiff in 1921 and died in April 1929, leaving behind his old mother Zumkabai, his young wife Sonabai, aged about 17 or 18, and a minor son, the defendant. The land was then transferred in the Record of Rights to the name of the minor defendant, represented by his grandmother Zumkabai as his guardian. His mother's brother Badhu made an application to the District Court that Zumkabai was too old to manage the property, and he was appointed as the defendant's guardian in December 1929. One Bhivsan stood surety for him and the guardian certificate was duly granted to him, but Zumkabai continued in possession of the defendant's property, as Badhu lived at Pasthe, 45 miles away from Valwadi, In 1932 Zumkabai applied to the District Court to cancel the appointment of Badhu as the defendant's guardian as he was a man of vices, and lived far away from Valwadi where the minor's property was situated, but her application was rejected. Yet she continued in possession as before. In 1935 the plaintiff filed Suit No. 259 of 1935 against the minor defendant to recover his mortgage amount. In that suit Zumkabai was appointed the defendant's guardian ad litem and she defended the suit on behalf of the minor defendant. The suit ended in a decree for the plaintiff, and in execution of that decree in darkhast No. 759 of 1938, the plaintiff himself purchased the mortgaged land with the permission of the Court on June 23, 1939. In the execution proceedings also Zumkabai acted as the defendant's guardian ad litem. About a month later, on July 17, 1939, Badhu applied to the District Judge that as he had not been able to get possession of the minor's property, the Deputy Nazir of the District Court should be appointed as the minor's guardian in his place. Accordingly the Deputy Nazir's appointment was made on August 8, 1939. He obstructed the plaintiff when he proceeded to take possession of the land which he had purchased at the auction. Hence the plaintiff filed the present suit and the Deputy Nazir contended on behalf of the minor defendant that the appointment of Zumkabai as the defendant's guardian ad litem in the plaintiff's suit No. 259 of 1935 and darkhast No. 759 of 1938 in contravention of the mandatory provisions of Order XXXII, Rule 4(2), of the Civil Procedure Code, was illegal, and all those proceedings being thus vitiated, the plaintiff acquired no title to the land in suit by his auction purchase. The trial Court held that the appointment of Zumbakai as the defendant's guardian ad litem, when Badhu was his appointed guardian, was only an irregularity, and as it had caused no prejudice to the defendant, the auction sale was valid and binding on the defendant. The plaintiff was, therefore, given a decree for possession and mesne profits. But in appeal the learned Assistant Judge took a different view. He held that it was not a mere irregularity, but an illegality which vitiated the proceedings and that the auction sale was void. He, therefore, allowed the appeal and dismissed the suit with costs.

(2.) In this second appeal by the plaintiff, the short question for decision is whether the auction sale is void by reason of the appointment of Zumkabai as the defendant's guardian ad litem in violation of the provisions of Order XXXII, Rule 4(2), of the Civil Procedure Code. That sub-rule says: Where a minor has a guardian appointed or declared by competent authority, no person other than such guardian shall act as the next friend of the minor or be appointed his guardian for the suit unless the Court considers for reasons to be recorded, that it is for the minor's welfare that another person be permitted to act or be appointed, as the case may be.

(3.) There is a sharp conflict of judicial opinion regarding the effect of disregarding the provisions of this sub-rule. According to the High Courts of Allahabad, Calcutta and Patna, the violation of this provision is only an irregularity, and does not, by itself, vitiate the decree, in the absence of any proof of prejudice to the minor. The High Court of Madras has, on the other hand, held that in such a case the appointment is illegal and the decree obtained against the minor and all subsequent proceedings in execution of that decree are void. The trial Court adopted the former view while the learned Assistant Judge preferred the latter.