BHUTNATH NAG AND ON HIS DEATH HIS HEIRS AND LEGAL REPRESENTATIVES RAMESH CHANDRA NAG Vs. SATYA KINKAR NAG AND ON HIS DEATH HIS HEIRS AND LEGAL REPRESENTATIVES NIRMALA DASI

JUDGEMENT

(1.) This appeal arises out of a suit for a declaration that the decree obtained by the defendant No. 1 in a contribution suit was void and inoperative as against the plaintiffs and that the sale held in execution of that decree was not binding upon them.

(2.) In that suit the present plaintiffs were desorbed as minors represented by their certificated guardian, the defendant No. 2. It appears, however, that when the defendant No. 2 applied for certificate of guardianship, the Court ordered that he might be appointed guardian provided he furnished security to the extent of Rs. 2,000. This security was never furnished by defendant No. 2, nor did he ever take out a certificate of guardianship. The defendant No. 2 was not appointed a guardian ad litem. The question is whether under these circumstances the plaintiffs can be said to have been properly represented by defendant No. 2 in that suit J The Courts below have concurred in answering the question in the negative and the defendant No. 1 has appealed to this Court.

(3.) Two contentions have been raised in this Court. First, it is contended that the mere fact that security had not been furnished or that the certificate had not been taken out does not go to show that the defendant No. 2 was not the certificated guardian. Reliance has been placed on the judgment of the Judicial Committee in the case of Mungniram Marwari v. Gursahii Nand 17 C. 347 : 16 I.A. 195 (P.C.) 5 Sar P.C.J. 462.