Patna High Court
Lala Rampirit Prasad And Ors. vs Babu Thakur Saran And Ors. on 21 June, 1921
Equivalent citations: 63IND. CAS.484, AIR 1921 PATNA 293(1)
JUDGMENT Coutts, J.
1. This was a suit for a declaration that a certain mortgage-decree, which had been obtained by the defendant No. 1 against the plaintiff and his brother, was not binding on the plaintiff.
2. The main question in the case, and the only point which is before us, is whether the plaintiffs, who were minors at the time the mortgage decree was obtained, were properly represented. Both the lower Courts have agreed that no guardian was appointed for the plaintiffs, nor was the fact that they were minors even mentioned in the order sheet. It appears, however, that in the execution proceedings of the mortgage suit the plaintiffs' mother appeared as guardian of the plaintiff and his brother, who were both minors at the time, and filed an application for the sale of a certain property before the other properties were put up for sale. From this both the Courts below have deduced that the plaintiffs' mother must have known of the mortgage suit, and have represented the minors in that suit. With this view I am unable to agree. They have some to this conclusion because they say that they are satisfied that the minors had no defence in the mortgage suit, and that if their mother had not in fast represented them, she would have made an objection on this ground as soon as she knew of the decree, which was certainly before the time when she made the application for the sale of the property. It is possible that this reasoning might be correct. But there are very many other reasons which can be conceived of why the minors' mother should make no objection to the decree on the ground that the minors were not represented. Apart from this, however, there is the finding of both the Courts that no guardian was appointed of the minors and that the Court had no knowledge that, the plaintiffs were minors, and although it has been decided in many awes and it is settled law that even if there has been no formal appointment of a guardian ad litem where the Court by its action has given its sanction to the appearance of the guardian, the absence of formal order of appointment is not necessarily fatal to the proceeding, there is no case that I am aware of in which, when there has been no formal appointment and no appearance on behalf of a minor, it has been held that the minor has been properly represented. In the present case there was no appointment of a guardian and no appearance of the guardian, and under these circumstances it is impossible to say that the minors had been represented. Now the minors not having been represented in the mortgage suit, the decree against them was a nullity and the plaintiffs in this we are entitled to succeed.
3. I would accordingly set aside the decree of the lower Appellate Court and would decree this appeal with costs. The parties are relegated to the same position as they were in before the decision of the mortgage suit.