AYYA NADAN Vs. THANAMMAL

JUDGEMENT

(1.) The suit from which these revision petitions arise was brought by the plaintiff as the heir to the estate of one Chinna Nadar, alleging inter alia that the defendant, his widow, was a lunatic at the time the succession opened on his death and she was, therefore, disqualified under the Hindu Law from getting a widow s estate and that she was still a lunatic at the date of the suit. He, therefore, proposed that a guardian ad litem should be appointed for her for the suit. She denied the allegation of unsoundness of mind made against her, but the Court, after holding a preliminary enquiry, came to the conclusion that she was of unsound mind and that a guardian was necessary to protect her interests in suit. The matter was brought up to this Court and a Bench of this Court confirmed the order and appointed her brother as her guardian ad litem and the correctness of that order is, therefore, no longer open to question in these proceedings. It is, however, rightly conceded by the learned Advocate General for the plaintiff that that finding in no way affects the trial of the issue in the suit whether she was a lunatic when the succession opened.

(2.) To prove the defendant s lunacy the plaintiff applied to the Court to pass an order for her personal appearance in Court and the then Subordinate Judge, purporting to act under the proviso to Order III, Rule 1, of the Civil Procedure Code, gave directions to the defendant s guardian to have her produced in Court on the day of hearing. Though several adjournments were given for the purpose and though on one occasion the Vakil appearing for her guardian undertook to produce her, she was not produced in Court, nor did she appear herself. The guardian himself also failed to appear. Thereupon the Subordinate Judge acting under Order IX, Rule 12 read with Rule 6(1), decided to proceed with the suit ex parte against the defendant and adjourned the hearing of the suit ex parte to 27th August 1918. In doing so, he passed a long order wherein he considered the question whether the guardian was acting against the interests of the lunatic in not producing her and he thought, though there was no evidence for it, that the guardian was acting in what he considered to be or was advised to be in the interests of the defendant; and that, therefore, there was no ground for removing him and appointing a new guardian.

(3.) Before the case came on for hearing ex parte on the adjourned date, the defendant s mother put in an affidavit alleging negligence on the part of the defendant s guardian and prayed that he may be removed and that she may be appointed guardian of her daughter and that the order directing the suit to be heard ex parte may he set aside under Order IX, Rule 7, and that she may be allowed to defend the suit. This application came on for hearing before a new Subordinate Judge and he has allowed the petitioner s prayer. It is against his orders that the present revision petitions are filed under Section 115 of the Code of Civil Procedure and Section 107 of the Government of India Act.