RAJ BAHADUR Vs. MTJAMNA KUER

JUDGEMENT

(1.) The facts out of which this appeal has arisen are fully stated in the judgment of the Court below. The plaintiff is the stepmother of the defendant. On the death of the defendant's father there-was a dispute between the parties with respect to the mutation of names in the revenue papers. The defendant at the time was a minor and was represented by Sobha Ram who was appointed a guardian by the District Judge under Guardians and Wards Act. The dispute ended in a compromise. In this compromise it was agreed that the name of the plaintiff would be recorded in the village records with respect to one-fourth share in a certain village. It was further stipulated that the defendant would give a sum of Rs. 200 per annum in lieu of profits to the plaintiff regardless of the actual income realized from the share allotted to the plaintiff. There were certain other stipulations in the deed which are not relevant for the purposes of this suit. This compromise was entered into in 1920 and was acted upon on behalf of the plaintiff during his minority and by the plaintiff himself since he attained majority. The plaintiff brought the suit for recovery o? the arrears of profits for the years 1339, 1340 and 1341 and Kharif 1342 Fasli. The suit was contested on several grounds. Only one of them is pressed before me by learned Counsel for the appellant. It is contended that the compromise was inoperative as the mandatory provision of Order 32, Rule 7 was not followed. The Courts below have repelled this plea and have held that the compromise was for the benefit of the defendant and was acted upon for a number of years.

(2.) The first question to be determined is whether the disability imposed by Order 32, Rule 7 applies to a guardian appointed by the District Judge under Guardians and Wards Act, or is limited in its operation to guardians appointed for the suit. As stated above the defendant in the present case was represented by Sobha who was a guardian appointed by the District Judge. Under Order 32, Rule 4 where a minor has a guardian appointed by a competent authority no person other than such guardian shall act as the next friend of the minor or be appointed as guardian for the suit un less the Court considers for reasons to be recorded, it is for the minor's welfare that another person be permitted to act or be appointed as the case may be Sobha admittedly was appointed to act as guardian for the suit In my opinion there is no sufficient ground to hold that when a nature guardian or a guardian appointed by the Court is appointed a guardian under Order 32 Rule 7 the provisions of Rule 7 will not be applieable to him. In Ganesha Row V/s. Tulja Ram Row (1913) 36 Mad. 295 in a suit for partition by a member of a joint family the father was made defendant 3 and his son, a minor, was made defendant 6 and the Court appointed the father guardian. ad-litem of the minor; the question was whether the power of the father as the natural guardian was controlled by Section 462, Civil P.C., (Act 14 of 1882). Their Lordships of the Judicial Committee held that the powers of the father were controlled by the provisions of Section 462 of the Code and he could not, without leave of the Court, do any net in his capacity as father, or managing member of a joint family which he was debarred from doing as guardian-ad-litem. To hold otherwise would be to defeat the object of the enactment. Another case cited is Marvadi Vanhaji V/s. Ranga Rao (1937) 24 A.I.R. Mad. 446. In this case a learned single Judge held: The disability imposed by Order 32, Rule 7, Civil P.C., will apply only to a father who is also the guardian-ad-litem for his minor son in a suit. Where the minor defendant is represented not by the father but by a Court guardian and where no attempt has been made to show that the compromise entered into by the father on behalf of the minor is improper or prejudical to his interest, the Court is not justified in extending the provisions of Order 32, Rule 7 either by analogy or on considerations of policy.

(3.) It will be observed that in that case the compromise was not entered into by the guardian-ad-litem. How far this case enunciates the correct rule of law is not necessary to be considered as it is conceded that in the present case it was the guardian-ad-litem who entered into a compromise on behalf of the minor. Having regard to the language of the rule and the observations of their Lordships of the Judicial Committee I must hold that even if a certificated guardian appointed by the District Judge is appointed guardian-ad-litem he is bound by the provisions of Order 32, Rule 7. The next question for determination is whether Order 32, Rule 7 applies to proceedings under the Land Revenue. Act. As stated above the compromise was entered into in mutation proceedings. The provisions of the Code of Civil Procedure are not applicable en bloc to proceedings under the Land Revenue Act. Certain Secs.of the Code have been made applicable and express provision to that effect is to be found in several Secs.of the Land Revenue Act, e.g. Secs.194, 199 and 204, etc. Under Section 234, Land Revenue Act, the Local Government is empowered to make rules consistent with the Act. In Circular No. 6 of the Board of Revenue, Department 2, certain rules have been made affecting the procedure of Revenue Courts. Rule 10 of the aforesaid rules runs thus: Previous to appointing a guardian-ad-litem under the provisions of Order 32, Rule 5 of 1905 the Court shall ascertain whether the person who it is proposed to appoint is willing to act.