BIMAL KUMAR HUI Vs. SMPURNIMA DASI

JUDGEMENT

(1.) The point for decision in this appeal is fairly simple. The plaintiff-respondent is a minor. On 21 April 1934 she purchased a certain jama from the pro-forma defendant 3. The principal defendants 1 and 2, who are the appellants before this Court, were the landlords of this tenancy. After her purchase the plaintiff took the usual steps under Section 26-C, Ben. Ten. Act. The landlords then applied under Section 26-F, Ben. Ten. Act, for pre-emption and gave notice to the plaintiff. The plain-tiff did not appear in the pre-emption proceedings and the Court passed an order granting the appellants prayer for preemption. This order was passed on 16 February 1935. The plaintiff then raised the present suit. She alleged that she was a minor on the date of the pre-emption proceedings under Section 26-F, Ben. Ten. Act, and that she was not represented in those proceedings by any guardian. She claimed -that the order of pre-emption was null and void and that her rights in the property were not affected by the order passed in those proceedings. She prayed for a declaration of her title and for khas possession. "There were two further allegations that the notice which should have been served on her had been fraudulently suppressed and that the deposits required to be made by the landlords under Section 26-F, Ben. Ten. Act, had not been made. These last two allegations need not be considered now as they have been decided against the plaintiff in both the Courts below and they have been abandoned here. Both Courts have held, however, that the order granting the landlords prayer for pre-emption is null and void inasmuch as the plaintiff was a minor when the pre-emption proceedings had been instituted and inasmuch as no guardian was appointed for her therein. On those grounds the suit has been decreed; and defendants 1 and 2 appeal.

(2.) That the plaintiff was a minor at the time of the preemption proceedings is now admitted. It is also admitted that no guardian was appointed on her behalf in those proceedings. The question for determination is whether in the circumstances mentioned above the order for preemption is a nullity. In my opinion, there can be only one answer to this question and that is that the order is a nullity. By virtue of the provisions of Section 141, Civil P.C., and Section 143 (2), Ben. Ten. Act, the provisions of Order 32, Rule 3, Civil P.C., would apply to proceedings under Section 26-F, Ben. Ten. Act, which are in the nature of suits. In a suit, if the defendant be a minor, the appointment of a guardian ad litem is mandatory and a decree passed in a suit against a minor where no guardian is appointed is a nullity. Authority for this proposition is hardly necessary, but if authority be needed I would refer to the case in Monmohini Das V/s. Behari Lal and to the case in Chundi Churn Law V/s. Abbas Ali Bhuya which is relied upon for other reasons by the appellants themselves. In the pre-emption proceedings, the plaintiff of this suit was in the position of a defendant and she being a minor and not represented by a guardian in the proceedings the order for pre-emption is a nullity and not binding on her.

(3.) Learned advocate for the appellants seeks to meet this position in two ways. First he says that the plaintiff is estopped from raising the question of her minority as she represented herself to be a major both in the kobala whereby she purchased the property and in the notice of her purchase issued under Section 26 (c), Ben. Ten. Act. The short answer to this argument is that the plaintiff did not make any such representation. In the kobala there is no statement that she is a major nor is there any such statement in the notice. All that can be said is that the plaintiff did not proclaim the fact that she was a minor. There is no duty upon the minor to make any such declaration and it cannot be said that there has been any misrepresentation or concealment amounting to a misrepresentation. It is unnecessary therefore for me to deal with cases cited by the learned advocate for the appellants to illustrate the effects of misrepresentation made by a minor regarding her minority. Further these cases dealt with misrepresentations made by a minor to a person with whom the minor was entering into a contract. Here the plaintiff was not entering into any contract with the appellants.