Patna High Court
Ramachandra Pd. Singh And Ors. vs Rampunit Singh And Ors. on 17 April, 1967
Equivalent citations: AIR1968PAT12, 1968(16)BLJR658, AIR 1968 PATNA 12
JUDGMENT Tarkeshwar Nath, J.
1. This appeal by defendants 1 to 10 (defendants 1st party) arises out of a suit for a declaration that the mortgage bonds dated 18-9-1925, 2-11-1928 and 4-1-1929 were forged, fraudulent, fictitious, without valid necessity and consideration and were not genuine and binding against the plaintiffs and the debts alleged to have been incurred were illegal and immoral. The two plaintiffs further wanted a declaration that the preliminary and the final decrees in Mortgage Suit No. 72 of 1938 obtained on the basis of those bonds were illegal and invalid and the auction sale dated 8-9-1942 and the delivery of possession dated 10-1-1943 in Mortgage Execution Case No. 203 of 1941 were altogether null and void and ineffective and they were not at all binding on the plaintiffs. They wanted a further declaration that all the processes of the rent suit and the execution case were suppressed and the possession of defendants 1st and 2nd parties in respect of the lands described in Schedule 1 of the plaint were illegal. The plaintiffs further made a prayer for a decree for recovery of possession in respect of those properties described in Schedule 1 of the plaint and a decree for confirmation of possession in respect of the properties described in Schedule 2 of the plaint. There was still a further prayer for mesne profits to the tune of Rs. 603 besides the mesne profits pendente lite and future.
2. According to the genealogical table given in the plaint, one Badri Singh had two sons Rambhagat Singh and Sahdeo Singh (defendant 3rd party). Rambhagat Singh had two sons Rameshwar Singh and Kishore Singh. Mt. Ramnagina Kuer (plaintiff No. 2) is the widow of Rarneshwar Singh, whereas Rampunit Singh (Plaintiff No. 1) is the son of Kishore Singh. Plaintiff No. 1 was a minor and he was represented in the suit by his mother Mt. Ramjati Kuail Sahdeo Singh was impleaded as defendant No. 15 but after his death his heir was substituted while the suit was pending in the trial Court. The case of these two plaintiffs was that Rameshwar Singh and Kishore Singh were separate in mess and business from Sahdeo Singh. Kishore Singh and Rameshwar Singh had more than sufficient income from the properties and they had no necessity to take any loan. Defendants 11 and 14 (defendants 2nd party) filed Mortgage Suit No. 72 of 1938 in the court of the Subordinate Judge at Darbhanga against the plaintiffs, defendant 3rd party and other co-sharers on the basis of those three bonds, the first one alleged to have been executed by all the three, viz., Sahdeo Singh, Kishore Singh and Rameshwar Singh and the other two executed by Rameshwar Singh and Kishore Singh only and defendants 2nd party obtained a fraudulent ex parte decree on 13-7-1939 by suppressing the processes. Thereafter defendants, 2nd party in collusion and concert with the defendants 1st party got the said fraudulent ex parte decree made final by taking illegal steps and they filed Execution case No. 203 of 1941. The processes of the execution case also were suppressed and the properties described in Schedule 1 were sold on 8-9-1942 and purchased by the defendants 2nd party themselves but in the names of defendants 1st party who were their close relations. Plaintiff No. 1 was a minor and was under the guardianship of his mother Mt. Ramjati Kueri and plaintiff No. 2 was a purdanashin lady. Taking advantage of this, defendants 1st and 2nd parties took all the steps illegally and the plaintiffs came to know of those proceedings regarding auction sale and delivery of possession on 15-12-1942 through one Rambadan Thakur and thereafter they filed Miscellaneous Case No. 7 of 1953 but it was dismissed for default and an application to restore that case also was rejected summarily. The mortgage bonds in question were fraudulent and without consideration and the debts, if any, were incurred for immoral purposes and were entirely abyavaharik. In fact the father and grand-father of plaintiff No. 1 did not take any loan from the defendants 2nd party either alone or along with defendant 3rd party, nor there was any necessity for the loan, The name of plaintiff No. 2 was Mt. Ramnagin Kuari but she was described as Mt. Chandramaula Devi (Chandra Kala) and the Minor plaintiff No. 1 was put under the guardianship of Sahdeo Singh in the mortgage suit and that by itself was sufficient to indicate the fraud committed by the mortgagees and the auction purchasers. Notice on Sahdeo Singh was not served and ultimately a pleader was appointed as guardian-ad-litem for minor plaintiff No. 1 but he also did not take proper steps to protect the interest of the minor and, therefore, the decree and the sale were null and void. Defendants 1st and 2nd parties in collusion and concert with one another illegally dispossessed the plaintiffs by force from the lauds described in Schedule 1 on 15-2-1943 and they interfered with the possession of the plaintiff with regard to the lands described in Schedule 2 of the plaint. The plaintiffs requested defendants 1st and 2nd parties to give up their illegal possession and not to interfere with the possession in respect of the lands described in schedule 2 but they paid no heed and hence the plaintiff instituted the suit on 7-9-1945 for the reliefs already indicated. Schedule J contains a description of the proprietary interests in various villages which belonged to the plaintiffs at one time. Schedule 2, however, is in respect of 2 kathas of land from the south out of 4 kathas on which the plaintiffs had their residential house. Defendants 1 to 4 and 10 filed a written statement and their case was that there was no fraud and collusion as alleged in the plaint. According to them, the processes in the suit and in the execution case were served properly and there was no fraud at all by the decree holders or the auction purchasers either in the aforesaid suit or execution case. The three mortgage bonds which were the basis of Mortgage Suit No 72 of 1938 were genuine, for considerations and the loans were taken for legal necessity and family benefit. The executants of the bonds were not of bad character and the debts were incurred not for immoral purposes. They asserted to be the bona fide purchasers of the lands in suit for value and they were not the benamdars of defendants 2nd party. The name of plaintiff No. 2 had been correctly mentioned in the plaint of the mortgag suit and summons had been served on her properly. The minor plaintiff No. 1 was placed under a proper guardian and ultimately the pleader guardian ad litem appointed for him had properly watched the interests of that minor and as such the decree and the sale were quite valid. No prejudice was caused to the plaintiffs and they were not entitled either to possession or mesne profits.
3. This suit had a chequered career. The suit was first dismissed by the trial court by judgment dated 23-12-1947 and the court then came to the following findings:
1. Plaintiff, No. 2 was described in mortgage suit by correct name of Chandra Kala Kuar and the summons in the mortgage suit had been properly served on her.
2. Plaintiff No. 1 was under the guardianship of Sahdeo so long as the latter was alive and plaintiff No. 1 was properly represented by the guardian ad litem in the mortgage suit.
3. The said guardian ad-litem took proper steps on behalf of the minor and he was not guilty of fraud or collusion and as such the decree was binding on plaintiff No. 1.
4. The mortgage bonds which were the basis of the mortgage suit were genuine and for consideration.
5. Rameshwar Singh and Kishore Singh, who were the executants in the three mortgage bonds, were men of good character and the debts in question were not incurred for illegal or immoral purposes.
6. The processes in the mortgage suit and in the execution case were duly served and no fraud was committed in those proceedings. The date of knowledge as given in the plaint was false
7. Defendants 1st party were bona fide purchasers of the lands described in Schedule 1 which were sold in the execution case and the sale could not be set aside.
8. Plaintiff No. 1 was not competent to challenge the decree on the ground that the three bonds in question were illegal for the reason that plaintiff No. 1 was not born or begotten when the bonds were executed and he could not object to the validity of the bonds executed by his father.
9. The suit was bad for defect of parties.
(4) The plaintiffs being aggrieved by the dismissal of their suit filed a first appeal, No. 30 of 1950 in this court and one of the points raised was that there was non-compliance with the provisions of Order 32 Rule 3 (4) of the Code of Civil Procedure and therefore, the failure to comply with that mandatory provision made the decree passed in the suit null and void. Another contention was that there was gross negligence on the part of the guardian ad-litem of minor plaintiff No. 1 in the said suit because he did not appear at the hearing of the suit and he did not contest it. It was also urged that the said guardian-ad-litem did not make a prayer for the payment of the dues by instalments. Another contention was that the suit was not maintainable at the instance of plaintiff No. 1 of the mortgage suit and there was defect of parties in the mortgage suit. Apart from the points mentioned above, no other point was taken in the first appeal and the findings of the trial court on other questions were not challenged; in other words, the other findings of the court below on other points regarding service of processes in the execution case etc. were not challenged. Raj Kishore Prasad J, by judgment dated 23-3-1958 allowed the appeal, set aside the judgment and decree of the trial court and remanded the suit to the trial court for consideration of the following points:
" 1. If (whether) there was a failure to comply with the provisions of Order 32, Rule 3 (4) of the Code of Civil Procedure, and if there was such a failure, what is its consequence on the decree passed in such a suit ?.
2. Was the guardian-ad-litem appointed by the court, even assuming that he was validly appointed, guilty of gross negligence, and, if the minor has been prejudiced thereby?.
3. Is the suit maintainable at the instance of the plaintiff No. 1 ?.
4. Is the suit bad for defect of parties ?.
5. Ts the suit barred by limitation ?"
His Lordship directed the trial court to decide the points referred above on the materials on the record after hearing the parties and then to dispose of the suit in accordance with law.
5. Parties were again heard and after remand learned Additional Subordinate Judge held that plaintiff No. 1 could maintain the suit on the ground of non-compliance with the provisions of Order 32, Rule 3 (4), Civil Procedure Code, but he could not maintain the suit on the ground that the bonds in question were illegal inasmuch as he was neither born nor begotten at the time of the execution of the mortgage bonds in question. The guardian-ad-litem who represented the minor plaintiff No. 1 in the suit and in the execution case was not guilty of any gross negligence and no prejudice was caused by his action to the interest of the said minor. The mortgage suit was not bad for defect of parties. The suit of plaintiff No. 2 was obviously barred by limitation but since she had no interest in the property in question because she became widow before the year 1936 the question whether the decree could be given in favour of plaintiff No. 1 was not affected. The suit of plaintiff No. 1 was not burred by limitation. The mother of plaintiff No. 1 was the natural guardian but the notice was neither issued nor served on the mother. Notice even on Sahdeo Singh who was described as the guardian of minor plaintiff No. 1 was not served as required by Order 32 Rule 3 (4) of the Code of Civil Procedure. The report of the peon Ext. A (17) did not show that the notice on the said minor plaintiff No. 1 was tendered to any guardian of the minor and in that view of the matter there was no service of the notice under Order 32, Rule 3 (4) of the Code of Civil Procedure on the minor. The consequence of the non-compliance with the provisions of Order 32, Rule 3 (4) of the Code of Civil Procedure was that the decree in the mortgage suit and the sale in execution of that decree were void go far as the interest of the minor plaintiff No. 1 was concerned.
It appeared that the interest of plaintiff No. 1 which was 8 annas and the interest of Sahdeo which was 8 annas in the property in suit were sold but so far as 8 annas interest of plaintiff No. 1 was concerned the sale was void because there was no decree against (sic) of the Bihar Land Reforms Act inasmuch as Schedule 1 contained four touzis and the claim of the plaintiffs was for recovery of possession in respect of those touzis. After the remand the plaintiffs made an attempt to substitute the bakasht lands of those touzis and wanted a decree for recovery of possession in respect of those lands but there was resistance on the part of the defendants and the prayer for amendment of the plaint was rejected by the trial court as the High court had directed the trial court to decide the suit on the materials already on the record. The trial court thus held that after the vesting of the four touzis in the State of Bihar in accordance with the provisions of the Bihar Land Reforms Act the plaintiffs could not claim recovery of possession of the proprietary interests in those touzis. The court thus held that even plaintiff No. 1 could not get a decree for recovery of possession in respect of the lands of Schedule 1 but he was entitled to the declaration that he had subsisting title in respect of the properties described in Schedule 1 of the plaint on the date of the suit and also till the vesting of those totizis in the State of Bihar. He allowed mesne profits to plaintiff. No. 1 in respect of those four touzis as against the auction purchasers (defendants 1st party) upto the date of vesting of those touzis in the State of Bihar. So far the land described in Schedule 2 of the plaint was concerned, the trial court passed a decree in favour of plaintiff No. 1 for confirmation of possession in respect of that land. In the result, he decreed the suit of plaintiff No. 1 in part on contest against defendants 1st party and ex parte against the rest allowing full costs to that plaintiff as against defendants 1st party. He declared that the decree passed in mortgage suit No. 72 of 1938 and the sale held in execution case No. 203. of 1941 were not binding on plaintiff No. 1 and the same had not affected the interest of plaintiff No. 1 in the properties in suit. In other words, he declared the title of plaintiff No. 1 to the extent of his share in the properties described in Schedule 1 of the plaint upto the date of the vesting of the estate but his claim for recovery of possession in respect of those properties was disallowed. Plaintiff No. 1 was given a decree for mesne profits, both past and future upto the date of the vesting of such estate in the State of Bihar as against defendants 1st party who were the auction purchasers and the amount was to he determined in a subsequent proceeding by a pleader commissioner to be appointed by the court. He further declared the title of plaintiff No 1 and confirmed his possession in respect of the lands described in Schedule 2 of the plaint and dismissed the claim of plaintiff No. 2 in toto.
Being aggrieved by this decree, the defendants 1st party nave filed this appeal.
6. Learned counsel for the appellants urged that the non-compliance with the provisions of Order 32, Rule 3 (4) of the Code of Civil Procedure was a mere irregularity and even if the notice on Sahdeo Singh, the proposed guardian of minor plaintiff No. 1, was not served the decree passed in the mortgage suit and the sale in the execution case were not void. Ha further urged that the pleader who was appointed guardian-ad-litem of minor plaintiff No. 1 had sent a postcard to Sahdeo Singh, filed a written statement and taken all steps to protect the interest of the minor and as such it could not be said that he was negligent in any manner. There can be no doubt that Mt. Ramjati Kueri, the mother of Rampunit Singh, minor plaintiff No. 1, was alive and in fact she was the guardian of the minor plaintiff in the present suit. Learned counsel for the appellants conceded that after the death of Kishore Singh, the father of minor plaintiff No. 1, the mother was the natural guardian. But in the mortgage suit the said minor was not placed under the guardianship of the mother and on the other hand Sahdeo Singh, defendant 3rd party (since deceased) was made the guardian or the said minor.
It appears from the order-sheet of mortgage suit No. 72 of 1938 (Ext. I) that suit was filed on 24-5-1938 and a petition supported by an affidavit was filed indicating as to who were the natural guardians of the minor defendants. The plaint was registered on that date and subsequently orders were passed to issue summons and notices to the defendants and the proposed guardians. Order No. 7 dated 21-7-1938 indicates that the plaintiffs filed proof of service and a petition praying for appointment of a guardian ad-litem by court. Order No 8 dated 1-8-1938 shows that notices to the minor defendants and to their proposed guardians and summons to all the defendants were served. The court noted that service was not properly proved and defendants 4 to 7 did not take any step. Order No. 11 dated 24-8-1938 indicates that service was proved and plaintiffs had already applied for appointment of a guardian ad-litem by court. Order No. 13 dated 6-9-1938 shows that guardian's cost was deposited and copies of plaint and cards were filed and then Babu British Chandra Ghosh. Pleader, was appointed guardian ad-litem of the minor defendants. It appears that there were minor defendants in the categories of defendants 1st party and defendants 2nd and 3rd parties of that mortgage suit and hence the court directed on 12-9-1938 that the said pleader should remain guardian ad-litem of the minor defendant who was in the category of the 1st party only. The said guardian ad-litem filed a written statement.
A preliminary mortgage decree (Ext. H) was passed on 13-7-1939 and it indicates that Rampunit Singh, minor son of Kishore Singh deceased (defendant No. 2 of that suit) was under the guardianship of Babu British Chandra Ghosh, Pleader guardian-ad-litem. Sahdeo was defendant No. 1 and Chandra Kala Devi, widow of Rameshwar Singh, was defendant No. 3 in that suit. These three were defendants 1st party in that suit.
7. Thes finding of the trial court that the notices under Order 32 Rule 3 (4) of the Code of Civil Procedure: were not served on Sahdeo who was proposed as the natural guardian of minor plaintiff No. 1 and also on the said minor was arrived at on a proper consideration of the evidence and this finding was not challenged by learned counsel for the appellants. But he contended that even if there was no compliance with the provisions of Order 32 Rule 3 (4) it did not make the decree passed in the mortgage suit void. To begin with, the father of minor plaintiff No. 1 having died Ramjati Kuari, the mother of the said minor, was the natural guardian but she was left out and in her place Sahdeo Singh, the grand uncle, was mentioned as the guardian of the said minor. Then came the question of serving the notice on Sahdeo and the minor before appointing guardian ad-litem to represent the interest of the said minor. Order 32 Rule 3 (4) of the Code provides:
"No order shall be made OH any application declared by any authority competent in that under this rule except upon notice to the minor and to any guardian of the minor appointed or behalf, or where there is no such guardian, upon notice to the father or other natural guardian of the minor, or, where there is no fattier or other natural guardian, to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notices under this sub-rule".
The trial court relying on a Division Bench decision of this Court in Ramchandar Singh v. B. Gopi Krishna Dass, AIR 1957 Pat 260 held that the non-compliance with the said provision was fatal and the decree and sale did not affect the interest of minor plaintiff No. 1 and the decree and sale so far the interest of that minor was concerned were void. On a review of a catena of decisions, Raj Kishore Prasad, J., who delivered the leading judgment in that case, summarised the principles of law inter alia as indicated below:
"Order 32, Rule 3 (4) of the Code is mandatory and imperative, and, its terms must be strictly complied with. Unless notices in terms of Order 32, Rule 3 (4), are served on the minor and his guardian, and, when in spite of service of such notice they do not choose to appear, only then, and then only, the court gets jurisdiction to appoint a guardian-ad-litem for such a minor. But, even then, before appointing a guardian for the minor the court must, as required by Order 32, Rule 4 (3) obtain consent of the person proposed to be appointed guardian for the minor.
Disobedience of these mandatory provisions leads to the consequence that there is no proper party to the suit, in the eye of law, and the minor is not a party to the suit, or proceeding, notwithstanding that his name appears on the record, and, as such, ho must be deemed in law to be wholly unrepresented, and, consequently, the jurisdiction of the court to proceed against such a minor will be ousted, and, the court will have no jurisdiction to render any judgment or pass any order against such a minor, and, when such a minor is not a party to an execution proceeding, the execution court also has no jurisdiction to sell his property, because the court has no jurisdiction to sell the property of a person, who is not a party to the suit, or the execution proceeding. The mere fact that a pleader guardian-ad-litem has been appointed by the court without complying with the mandatory provisions of Order 32, Rule 3 (4) of the Code, and, the further fact that such a pleader guardian has acted on behalf of such a minor, cannot clothe him with the power to act as such on behalf of such a minor, and, he must be considered to be disqualified from acting as such guardian under the express provisions of Order 32, Rule 3 (4) of the Code, and, therefore, in such a case also, the minor is not properly a party to the proceeding and the judgment rendered or any order passed against him is without jurisdiction, and null and void, and the court will have no jurisdiction in such a case also to proceed to sell his property".
8. Learned counsel for the appellants made strenuous efforts for our taking a view different from the one taken in the said judgment and he submitted that the earlier decisions of this court which were to the contrary should be followed and the question as to what was the effect of the non-compliance with the provisions of Order 32 Rule 3 (4) should be referred to a larger Bench. He relied on Pande Satdeo Narain v. Ramayan, AIR 1923 Pat 242 (2). The plaintiff there was cited as the third defendant in the previous mortgage suit and was described in that case as the minor son of Lalta Kuar, daughter of Babu Bissesswar Prasad Singh through his father and guardian Hardeo Narain. The order-sheet of the mortgage suit shows that on the 20th April, the court directed notice to issue for the appointment of guardian, and that on the 12th May 1909, the court appointed Hardeo Narain as the guardian ad-litem for the minor defendant, the plaintiff in the subsequent suit. There was, however, no appearance on behalf of the minor defendant, and, on the 23rd December, 1909, the court passed a mortgage decree in favour of the plaintiff of the mortgage suit. The mortgaged properties were then put up for sale and were purchased by the decree-holder. The plaintiff through his father as guardian failed in his attempt to get the sale set aside and then the suit giving rise to that appeal was instituted on 10-7-1916 for setting aside the ex parte decree dated 23-12-1909 and the sale held in compliance of that decree and for consequential reliefs. The contentions in that appeal were that notice for the appointment of a guardian in the suit was not served on the minor and upon the guardian of the minor in terms of Order 32 Rule 3 (4) of the Code; and secondly, that there was a distinct violation of the statutory provisions contained in Order 32, Rule 4 (3) of the Code in so far as Hardeo Narain was appointed guardian for the suit without his consent. On the evidence it was impossible to say that the notices were, or could have been, served upon the minor and upon the guardian for the minor in terms of Order 32, Rule 3 (4) of the Code. Das J. observed that the mere fact that the court disobeyed any particular provisions of the statute was not sufficient to establish that there was no jurisdiction in the court to render judgment in the case. But where the disobedience led to the result, that, as a consequence of the disobedience there was no proper party to the suit, the case was different.
His Lordship referred to the view of the Judicial Committee in Walian v. Banke Behari Pershad Singh, (1903) 30 Ind App 182 (PC) and referred to the facts of that case. In that case, no formal order appointing Moti Rani Koer as guardian for the minors was drawn up by the court and there was no appearance in the suit itself by Moti Rani Koer on behalf of the minors. On 29-10-1881 Mahammad Zaharul Haq obtained a mortgage decree and subsequently purchased the share in execution of his decree. In 1897, the persons who were sued as minors in the mortgage action instituted a suit for a declaration that the mortgage decree and the sale held in pursuance of decree were null and void as against them and for recovery of possession of the share which had passed at the auction sale. The Judicial Committee agreed with the view of the High Court that the rules laid down in Section 443 of Civil Procedure Code, (1882) should be strictly followed but it did not agree with the view that a defect in following those rules was necessarily fatal to the proceedings. While dealing with the argument that the minors were not properly represented the Judicial Committee said as follows:
"It appears to their Lordships that they were effectively represented in that suit by their mother, and with the sanction of the court ..... .There is nothing to suggest that their interests were not duly protected. The only defects that can he pointed out are that no formal order appointing the mother of the now plaintiffs to be their guardian ad litem is shown to have been drawn up. It has not been shown that the alleged irregularities caused any prejudice to the present plaintiffs; nor indeed could there be any since it has been found that the original debt was one for which the present plaintiffs were liable. Their Lordships are of opinion that the defects of procedure alleged in this case are at most irregularities which, under Section 578 of the Civil Procedure Code, would not have furnished ground for reversing the proceedings in the former suit, if they had been raised upon appeal in that suit."
Das J. regarded the said decision of the Judicial Committee as establishing that the failure to comply with the provisions of Section 443 of the old Civil Procedure Code was a defect of procedure which would not be fatal to the suit, unless it was shown that the defect or irregularity in the proceedings had affected the merits of the case. His Lordship posed the question that the Judicial Committee having held that the failure to comply with Section 443 of Act 14 of 1.882 corresponding with Order 32 Rule 8 (1) was not fatal to the suit, on what ground could it be urged that the failure to comply with the provisions of Order 32 Rule 3 (4) and Order 32 Rule 4 (3) would render the decree null and void, although it was shown that the failure to comply with these provisions had not affected the merits of the case? His Lordship held that all the different provisions, stood on the same footing and weir intended to secure a fair trial of the case, where a minor was party to the suit and overruled the contention that the non-compliance with the provisions of Order 32 Rule 3 (4) or Order 32 Rule 4 (3) would render the decree null and void.
Learned counsel for the appellants submitted that this Division Bench decision of Das and Adami JJ. should be followed and not the one in the later case of AIR 1957 Pat 260. But in this later decision Raj Kishore Prasad J. has fully dealt with the earlier decision of Das and Adami JJ. in AIR 1923 Pat 242 (2) and has further referred to the case of (1903) 30 Ind App 182 (PC) and has distinguished both the cases. His Lordship pointed out that Walian's case, (1903) 30 Ind App 182 (PC) was decided on the basis of the Code of Civil Procedure of 1882 and their Lordships of the Privy Council had to construe section 443 of the Code. I can usefully refer to the observations of Raj Kishore Prasad J:
"The first part of Section 443 corresponds to the present Order 32, Rule 3 (1), whereas its second part corresponds to the present Order 32, Rule 4 (2). Present Order 32, Rule 3 Clauses (2) and (3) correspond to the first part of Section 456 of the Old Code. Order 32, Rule 4 (1) corresponds to Section 445, and Order 32, Rule 4, Clause (4) corresponds to the second part of S 456.
We, therefore, find on a reference to Sections 443, 445 and 456, and the other sections mentioned in Chapter XXXI, which deals with suits by and against minors and persons of unsound mind, and which contains Sections 440 to 464 of the Code of 1882, that therein there was no provision similar to either Order 32, Rule 3 (4) or Order 32, Rule 4 (3). They arc new provisions, which were introduced for the first time in the Code of 1908.
Under Section 443, there tore, no notice either to the minor or to his guardian as contemplated now by Order 32, Rule 3 (4), nor, any notice as now required under Order 32, Rule 4 (3) was necessary before appointing a guardian for any minor Section 443 only required that where the defendant to a suit was a minor, the court, on being satisfied of the fact of his minority, bad to appoint a proper person to be guardian for the suit for such minor, and generally to act on his behalf in the conduct of the case. We, therefore, find that in the Code of 1882, there was no provision either for notice to the minor or his guardian or to obtain the consent of the proposed guardian, before appointing him guardian for the minor. In such circumstances, Walian's case. (1903) 30 Ind App 182 (PC) cannot be of any guide in construing Order 32, Rule 3 (4) or even Order 32, Rule 4 (3) of the present Code".
Another reason why Walian's case, (1903) 30 Ind App 182 (PC) could not apply was pointed out by Raj Kishore Prasad J and it was that in that case the only defect was absence of a formal order appointing guardian. Under those circumstances, their Lordships of the Judicial Committee held that the above defects were mere defects of procedure, which were at most irregularities which under Section 578 of the Code of Civil Procedure of 1882 which corresponds to Section 99 of the present Code, would not have furnished ground for reversing the proceedings in the former suit. Raj Kishore Prasad J. further pointed out that Walian's case, (1903) 30 Ind App 182 (PC) was the sole basis and the foundation of the decision in Satdeo Narain's case, AIR 1923 Pat 242 (2), but the facts of Walian's case (1903) 30 Ind App 182 (PC) were completely different. Das J. however had pointed out in Pande Satdeo Narain's case, AIR 1923 Pat 242 (2) that where the record of the case showed that the minor was not represented by a guardian for the suit, or was represented by a guardian disqualified, under the express provision of the statute, from acting as guardian, the position was the same as if the minor were not a party to the suit, and the judgment rendered by the court was without jurisdiction and null and void. This observation as well was quoted by Raj Kishore Prasad J. and I am of the opinion that on substantial grounds the Division Bench distinguished in Ramchandar Singh's case, AIR 1957 Pat 260 the earlier decision in AIR 1923 Pat 242 (2) which had followed Walian's case, (1903) 30 Ind App 182 (PC).
9. The view taken by the Division Bench in AIR 1957 Pat 260 has been followed by a Division Bench of the Calcutta High Court in Nirmal Chandra v. Khandu Ghose, AIR 1965 Cal 562. That second appeal arose out of a suit brought by the respondents who were minors, for a declaration that the ex parte decree for rent obtained by the appellants against them and their co-sharers was not binding upon the respondents inasmuch as the respondents were, in that suit, impleaded as represented not by their mother who was their natural guardian, but by their brother, who was defendant No. 12 in the suit. The question of law which arose was whether the minors were properly represented by their brother who was not their natural guardian, so as to make the decree in the suit binding upon the minors. The Munsif relied upon the doctrine of 'effective' or 'substantial' representation and answered this question in the affirmative and dismissed the suit for declaration, but his decision was reversed by the lower appellate court holding that there was no representation under the law, by the brother, and in this view, the suit brought by the respondents was decreed. The defendants filed an appeal and the case was referred to a Division Bench for disposal. The question raised was examined from a two-fold approach, namely, from the point of view of the Code of Civil Procedure and of the Bengal Tenancy Act. The reason was that while the general law relating to the representation of a minor defendant was provided in Order 32 of the Code of Civil Procedure, a special procedure was laid down in Section 148 (h) of the Bengal Tenancy Act which had to be complied with by a landlord who, instead of being contended with a money decree for his arrears of rent under the general law, was anxious to have a rent decree, with all its larger benefits under Chapter XIV of the Bengal Tenancy Act. Their Lordships referred to the decision of the Privy Council in Walian's case, (1903) 30 Ind App 182 (PC) and D. Basu J observed thus:
"It should be mentioned in this context that in AIR 1923 Pat 242 (2) a Division Bench of the Patna High Court had held that the procedural requirement of Sub-rule (4) of Rule 3 was not mandatory and that its contravention might be regarded as a mere irregularity. But, as pointed out by the later Bench in Ramchandar's case, AIR 1957 Pat 260 the earlier Bench in Satdeo's case, AIR 1923 Pat 242 (2) founded their decision upon Mt. Ribi's case, (1903) 30 Ind App 182 (PC) without noticing that there was no provision in the Code corresponding to Sub-rule (4) of Rule 3 when the decision of the Privy Council in Mt. Bibi's case, (1903) 30 Ind App 182 (PC) had been pronounced, and without noticing a- number of earlier decisions of the Patna High Court to the contrary. We are in complete agreement with the view taken by the Patna High Court in this later decision of 1957, namely, that the provisions of Sub-rule (4) of Rule 3 are mandatory, in the same manner as those of Sub-rule (3) of R. 4, as to which we have direct decisions of our own Court, as we shall presently see. We are inclined to prefer this view not merely because of the word 'shall and the negative language used in both these sub-rules, but because the contrary view would defeat the very object of 0. 32, namely, that because a minor is incapable of defending a litigation, the Court should appoint person competent and willing to protect his interests, having regard to the wishes of the minor and of the person who has the custody of his person, and the interests of the minor as such. Without considering all these aspects, neither the plaintiff in the suit nor the Court can be allowed to thrust a so-called guardian-ad-litem upon the minor simply for the sake of an idle formality. To treat these sub-rules as merely directory would, therefore, defeat their purpose and we cannot make such a construction.
When, therefore, there is contravention of such a mandatory provision, it constitutes not merely violation of a rule of procedure, but a matter going to the root of the Court's jurisdiction, because no Court is competent to make a decree against a minor who is not represented according to law, any more than against a dead man (of AIR 1924 All 892 at p. 896).
We are also of the opinion that any extension of the principle evolved by the Judicial Committee in Mt. Bibi's case (1603) 30 Ind App 182 (PC) beyond what was actually decided therein should not be readily made in disregard of the object and utility of the provisions of Order 32 of the Code as a whole."
Ultimately their Lordships held that the respondents (plaintiffs) were entitled to a decree setting aside the rent sale, in so far as it affected their interest and injuncting the contesting defendants from interfering with their possession.
10. Learned counsel referred to an earlier decision of this Court in Ram Asray Singh v. Sheonandan Singh, AIR 1916 Pat 267 (FB). But in that case there was no formal order appointing a guardian-ad-litem but all the same there was a formal application for the appointment of a guardian-ad-litem of the minor respondents concerned and a guardian was proposed to represent theft interest and the proposed guardian who was the elder brother of the two minors was allowed to represent the respondents at the trial. That being the position, it was held that the absence of a formal order appointing a guardian ad litem was not fatal to the suit. Learned counsel referred to a decision of this Court in Mohammad Abdus Salam v. Kamalmukhi, AIR 1918 Pat 520, but that was with reference to the provisions of Order 32 Rule 4 (2). He then referred to Rani Drigraj Kuer v. Amar Krishna Narain Singh, AIR 1960 SC 444, but that case also was with reference to the provisions of Order 32 Rule 4(2) of the Code of Civil Procedure. He referred to Kaushalya Devi v. Baijnath Sayal, AIR 1961 SC 790 but in that case their Lordships were dealing with the effect of the non-compliance with the provisions of Order 32 Rule 7 (1) of this Code of Civil Procedure.
11. In the present case, notices to the proposed guardian Sahdeo Singh and to the minor not having been served the appointment of the guardian ad litem of minor plaintiff No. 1, who was defendant No. 2 in Mortgage Suit No. 72 of 1938, was without jurisdiction and I am in complete agreement with the view expressed in Ramchandar's case. AIR 1957 Pat 260, and learned counsel was not able to point out that a different view was taken by this Court in course of the last 10 years after the decision in Ramehandar's case, AIR 1957 Pat 260. That decision is binding on us and there is absolutely no necessity to make a reference to a larger Bench for the decision of the question raised by learned counsel for the appellants. The result is that the findings of the trial court that the decree and sale were void so far as minor plaintiff No. 1 was concerned and that they did not affect his interest must be affirmed.
12. Next question raised by learned counsel was that there could be no decree for mesne profits against the defendants 1st party and he submitted that they were bona fide purchasers for value and they were not at all responsible for any irregularity or illegality either in the appointment of the guardian ad litem or any defect in the decree or in the execution sale. He made a distinction between the decree-holder auction purchaser and a stranger auction purchaser and submitted that the decree-holder auction purchasers might be liable for mense profits but the latter one would in no event be liable for mesne profits as the possession of the latter was in no event wrongful. Section 2 (12) of the Code of Civil Procedure provides as follows:
'mesne profits ot property means (hose profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession."
He pointed out that the finding oi the trial court was that defendants 1st party were bona fide purchasers for value and the sale price was neither low nor inadequate and they were not creatures of the mortgagees defendants 2nd party. He relied upon Nawab Zain-ul-Abdin Khan v. Muhammad Asghar Ali Khan, (1887) 15 Ind App 12 (PC). In that suit, giving rise to that appeal, the plaintiff sued several defendants claiming to set aside certain auction sales which had taken place under a decree of the Subordinate Judge of Moradabad, and for an order that the plaintiffs be put into absolute possession of the properties which were sold. In the schedule of the plaint the properties and the purchasers were separately described. Some of the defendants were in the decree-holders but the others in that category were not the decree-holders but merely purchasers under execution and strangers to the decree upon which the execution issued. The Subordinate Judge held that the defendants were bound to restore the property on a reversal of the earlier decree; not only to the decree-holders who had purchased, but the defendants who had purchased bona fide, not being parties to the decree. The defendant Asghar Ali and the three added defendants, none of whom was a party to the decree in execution of which the sales were effected, appealed to the High Court. When the case came before the High Court they reversed the decision. They passed two decrees, one as regards the three appellants who were the added defendants and the other as against Asghar Ali, but they were both in similar words. The High Court look the view that both the appeals must be decreed with costs and the decision of the Subordinate Judge was reversed and the plaintiff's claim was dismissed. Their Lordships of the Judicial Committee pointed out that according to the strict grammatical construction of the decrees the plaintiff's claim was dismissed, not only as regards the defendants who had appealed, but as regards the others who had not appealed, and as such the decrees must however, be construed as applicable only to the defendants who had appealed and whose appeals were decreed, and not to the defendants who had not appealed, and who were not before the Court, and had not objected to the decision of the subordinate Judge. An observation was made in that judgment that there was a great distinction when the decree-holders who came in and purchased under their own decree, which was afterwards reversed on appeal, and the bona fide purchasers who came in and bought at the sale in execution of the decree to which they were no parties, and at a time when that decree was a valid decree, and when the order for the sale was a valid order. The actual effect of the decision of the Privy Council was that decrees of the High Court were applicable only to the defendants who had appealed and not to the defendants who had not preferred an appeal.
13. Learned counsel for the appellants referred to Chota Nagpur Banking Association v. G. T. M. Smith, AIR 1913 Pat 825. But the appeal there arose from an order passed by the Subordinate Judge in a proceeding under section 144 of the Code of Criminal Procedure. Fazl Ali, C. J. observed that it was true that a stranger to the decree was not bound to enquire into the, merits of the plaintiffs claim or into the validity of the decree and, therefore, ordinarily the presumption was that such a person was unaware of these matters, but where there was clear and cogent evidence that he was fully aware of the merits of the controversy in regard to the property purchased by him and was also aware that the validity of the decree was under challenge, there was no room for that presumption. The Banking Association was the mortgagee of the very property which was purchased by it and it was held that the said Association must he deemed to have known all about the property and the said Association could not invoke the benefit of the doctrine which applied only to a bona fide purchaser for value.
Learned counsel referred to Tribeni Pd. Singh v. Ramasray Prasad, AIR 1931 Pat 241 (FB). The decision in Nawab Zain-ul-Abdin Khan's case, (1887) 15 Ind App 12 (PC) was referred to by Jwala Prasad J. and his Lordship observed that the rights of decree-holder purchaser and those of a third party purchaser were not invariably the same and in a suit brought by the judgment-debtor for restoration of the property sold, the purchase by the stranger was not affected, whereas that by the decree-holder was affected and the judgment-debtor was entitled to the properly purchased by the decree-holder being restored and not that purchased by the stranger in which case he had to content himself with the value of the property fetched at the auction sale. He then referred to another decision of this Court in Gopi Lal v. Jamima Prasad, AIR 1934 Pat 36. In that case the question of restitution arose under section 144 of the Code of Civil Procedure and their Lordships held that there could be no order of restitution in that case, since a portion of the property had already gone into possession of third parties, and there was no material on the record to suggest that the third parties concerned were not bona fide purchasers for value or that they had notice of the compromise order passed on 15-12-1941, by the High Court.
14. It is essential to keep in view one distinction which is obvious between the facts of the cases relied upon by learned counsel for the appellants and those of the present case. In all those cases the question arose as to what was the effect of setting aside the sale if the purchaser was a strange! one and not the decree-holder. In the present case, however, the decree and the sale were void so far as minor plaintiff No. 1 was concerned; in other words, his interest was not at all affected by the mortgage decree and his title remained in that throughout. In the present case, if the tauziz in question had not vested in the State of Bihar or his prayer for amendment of the plaint by substituting the bakasht lands in place of the tauziz would have been allowed, then plaintiff No. 1 would have been clearly entitled to a decree for possession as against the defendants 1st party. If he was entitled to a decree for possession, could it be said that he was not entitled to a decree for mesne profits and the ascertainment thereof from the time they (auction purchasers) took delivery of possession? The answer would definitely be in favour of plaintiff No. 1 that he would be entitled to a decree for mesne profits. None of the decisions relied upon by learned counsel was directly on this question.
15. Learned counsel for the appellants referred to Perumal Udayar v. Krishnama Chettyar, (1894) ILR 17 Mad 251. The defendants in that case were in possession as purchasers in a sale made under the Revenue Recovery Act. It was ultimately held in a suit brought by the plaintiffs that the sale was irregular, and they were restored to possession. They later on sued for their share of the mesne profits derived while the defendants were in possession. The Subordinate Judge found that they were entitled to recover the same, but, on taking accounts, it was found that defendants had realised no net profits, their expenses having exceeded their receipts and plaintiffs' claim was therefore dismissed. The first ground was that the defendants were in the possession as trespassers and wrong-doers, and were, therefore, liable to account to plaintiffs for such loss as they sustained by being kept out of possession, and the question was not what amount of profits the defendants had actually realised, but what they might and ought to have realised.
Reference was made to Dakshina Mohun Roy v. Saroda Mohun Roy, (1894) 20 Ind App 160 (PC;) where it was held that the party in possession was in bona fide possession because he was in possession under a decree of court, and, until that decree was reversed, he was in rightful possession. But even in that case their Lordships laid down the following rule:
"Of course he is bound to account for mesne profits for all rents and profits which he has received, or winch without wilful default he might have received. But if owing to circumstances beyond his control, and still more if in consequence of some wrongful conduct on the part of his opponent, he has received less than what he has had to pay for the preservation of the estate, it would seem to be in accordance with justice, equity, and good conscience there being no specific rule to the contrary that he should recover the difference on the final adjustment of accounts."
16. Learned counsel for respondent No. 1 (plaintiff No. 1) referred to a direct decision on this point in Ramnath Hajarimal v. Mohan Lal Radhakisan, AIR 1939 Nag 23. Vivian Rose, J.
(as he then was) referred to the decisions in (1887) 15 Ind App 12 (PC), (1894) 20 Ind App 160 (PC), Grish Chunder Lahiri v. Soshi Shikhareswar Roy, (1900) 27 Ind App 110 (PC) and (1894) ILR 17 Mad 251 and observed thus: "The real question for decision is whether the plaintiff is entitled to mesne profits. Defendant 1 contends that he took possession under the process of the Civil Courts; that he did nothing to initiate the proceedings; and that he purchased in good faith. Therefore he contends that his possession was not wrongful, at any rate till it was declared to be so by a court of competent jurisdiction. There can be no doubt that the essence of a claim to mesne profits is the wrongful possession of the defendant. It is not necessary to travel beyond the definition in Section 2 (12), Civil P. C., to determine that. Therefore, what we have to see is whether the possession of an auction purchaser is wrongful. I do not see what else it can be, for, otherwise the plaintiff would have no right to immediate possession. But it is argued, their Lordships of the Privy Council have decided in (1900) ILR 27 Cal 951 at p. 967 that mesne profits are in the nature of damages which the court may mould according to the nature of the case, and in another case, (1894) ILR 21 Cal 142 at p. 148 (PC) their Lordships laid great stress upon the question of good faith and based their decision upon justice, equity and good conscience, They also held that the plaintiff who was in possession under a decree of the court was in rightful possession so long as the decree stood. Therefore, it is urged the matter is concluded. But their Lordships also pointed out that as he had been wrongfully obstructed the balance of accounts was against him. In those circumstances their Lordships held that since there was no rule to prevent the plaintiff from recovering the loss he had suffered, the rules of justice, equity and good conscience should apply. But they also made it clear that though the plaintiff's possession was rightful in one sense of the term it was wrongful so far as mesne profits were concerned. It is true, they were not deciding this question there, and it is equally true that the plaintiff had conceded his liability to account but their Lordships' observations cannot be altogether ignored. Then again it must be remembered that those observations were made with reference to parties to the suit The contest there was between the same set of parties in both suits. The situation changes the moment the rights of strangers intervene. Possession which may be rightful for certain limited purposes as against the judgment-debtor may be wrongful as against third parties, and the mere fact that the possession was obtained through the instrumentality of the Courts will not avail either the decree-holder or the auction-purchaser as against persons who were not parties to the decree.
This clear-cut distinction between the parties and strangers is seen in an extreme form in the case of stranger auction-purchasers. Even if the decree under which the sale was held is afterwards reversed, the title of a stranger auction-purchaser is not affected as against a party to the suit; see (1887) ILR 10 All 166 at p. 172 and Rewa Mahton v. Ramkishun Singh (1887) ILR 14 Cal 18 at p. 25 (PC). But it avails him nothing as against persons who are not parties to the suit. So far as they are concerned, the rule of caveat-emptor applies and so the auction-purchaser, even though a stranger to the decree under which he purchased, would have to yield up possession to the true owner provided he also was not a party to the decree; see Umes Chunder Sirear v. Zahur Fatima, (1891) ILR 18 Cal 164 (PC). That being so, I cannot see how the rule about mesne profits can be any different. The ordinary rule is that an owner of property who is wrongfully kept out of possession is entitled to mesne profits and however rightful the auction-purchaser's possession may be as against parties to the suit, if it can avail him nothing as against third parties in regard to the right to possession, I do not see how it can avail him in respect of other matters which directly flow out those rights."
I can usefully refer to Suraj Ranjau v. Prem Chand, AIR 1918 Cal 360 (FB). In that case a question arose about the application of the provisions of Article 109 of the Limitation Act and it was held on considering the provisions of column 3 of that Article that even if the possession had been obtained under a decree of the court which was afterwards set aside on appeal the said Article would have applied; and the profits would have been said to have been wrongfully received. I would now refer to Ram Charan v. Bansidhar, AIR 1942 All 358. That appeal arose out of a plaintiff's suit for possession of certain buildings. Certain portions of them were purchased by strangers and not the decree-holders. A contention was raised 'hat those purchasers having come into possession by virtue of purchases made at auction sales held under the orders of a court, they could not be held to have appropriated the profits "wrongfully" within the meaning of Article 109 and therefore that Article was inapplicable and there being no other article which could be applied, the claim could come only under the residuary Article 120. But that contention was overruled.
I would refer to a Division Bench decision of this Court in Prithwinath Singh v. Suraj Ahir, AIR J966 Pat 254. The appeal there arose against an order passed under section 144 of the Code of Civil Procedure. The plaintiffs had instituted a suit in November 1946 for declaration of their title to, and recovery of possession in respect of certain lands along with mesne profits. Their allegation was that the defendants were mortgagees of the lands, and the plaintiffs had redeemed the mortgagee. The trial court dismissed the suit on 8-3-1948 and thereupon the plaintiffs filed First Appeal No. 143 of 1948 in this court Admittedly, the estate which included the lands in suit vested in the State of Bihar on 1-1-1956. This court by judgment dated 28-1-1958 allowed the appeal and decreed the suit for declaration of title and recovery of possession and mesne profits. The defendants filed Civil Appeal No. 533 of 1960 in Supreme Court. Meanwhile on 6-5-1959 the plaintiffs took delivery of possession of the lands in dispute. By a judgment dated 4-5-1962 the Supreme Court, while upholding the findings of the High Court that the lands in question were bakasht lands and the suit was not barred by limitation allowed the appeal, holding that the plaintiffs had by reason of the estate having vested in the State of Bihar and also by reason of the fact that the lands could not be deemed to have been settled with the plaintiffs under section 6 of the Bihar Land Reforms Act, 1950 as they were not a Khas possession on the date of vesting, lost the right to recover possession. The suit was thus dismissed. The plaintiffs, filed an application for review of judgment before the Supreme Court but they were unsuccessful. On 25-6-62 the defendants filed an application under Section 144 of the Code of Civil Procedure for (1) redelivery of possession of the lands in suit to them, (2) mesne profits for the period of the plaintiffs' possession i.e. from 6-5-1959 upto the date of delivery of possession, and (3) refund of the costs of the litigation realised by the plaintiffs from the defendants. The plaintiffs objected to the first two prayers for re-delivery of possession and mesne profits. The Sub-divisional Judge, however, allowed restitution and allowed the defendants' prayer for mesne profits. The plaintiffs thus filed a miscellaneous appeal in this court. A question arose in the appeal as to whether the defendants were entitled to mesne profits and their Lordships held that justice demanded that the plaintiffs must pay mesne profits to the defendants for the period during which they were in possession under a decree which had since been reversed, In that view of the matter, their Lordships directed that mesne profits for that period would be determined by the court in a separate proceeding and the plaintiffs would be liable to pay the same to the defendants. This was a case where the question of mesne profits arose after the reversal of the decree by the Supreme Court and even then mesne profits were allowed to the successful party. In the present case the position is that plaintiff No. 1 was not at all represented by a proper guardian ad litem and the decree and sale so far he was concerned were void and did not affect his interest. In this view of the matter, the possession of the defendants 1st party from the date of delivery of possession must be held to be wrongful and they are liable for the mesne profits. I would thus affirm the finding of the trial court that plaintiff No. 1 would be entitled to a decree for mesne profits both past and future from the dale of the delivery of possession upto the date of the vesting of the estate in the State of Bihar as against the defendants 1st party who were the auction purchasers and the amount of mesne profits would be ascertained in a separate proceeding.
17. After the close of argument, learned counsel for the appellants submitted that the decision in AIR 1939 Nag 23 should not be followed inasmuch as the question about the liability of mesne profits was decided in that case in a suit under Order 21, Rule 63. Civil Procedure Code and a suit under that provision was a continuation of the proceeding under Order 21, Rule 38 of the Code of Civil Procedure.
In support of it he referred to Madholal Damlal v. Gajrabi, AIR. 1951 Nag 194, Md. Hashim Ali Khan v. Iffat Ara Hamldi Begum, AIR 1942 Cal 180, Sardar Begum v. Harsukh Rai, AIR 1940 Lah 497, Mt. Anandei v. Lala Ram, AIR 1939 Oudh 178 and Keshav Narayan v. Ghasiram, AIR 1956 Madh Bha 226 but it is not necessary to consider these decisions, inasmuch as this court itself has laid down in Mt. Bas Kuar v. Gaya Municipality, ATR 1939 Pat 138 that a suit under Order 21, Rule 63 was a mere continuation of the claim proceeding under Order 21, Rule 58. The fact that the point in question was decided in a suit under Order 21, Rule 63 will not make any difference for holding as to whether a stranger purchaser was liable for mesne profits.
18. Learned counsel for the appellants urged that plaintiff No. 1 even if entitled to mesne profits should be directed to refund the price which the auction purchasers had paid for purchasing the property in question. He could, not refer to any principle of law on which plaintiff No. 1 should be saddled with that liability and the interest of plaintiff No. 1 not having been bound by the sale there is no justification for saddling him with that liability.
19. Learned counsel for the appellants finally urged that the mortgage suit having been instituted against the karta of the joint family consisting of minor plaintiff No. 1 and other members there was a pious obligation on the minor plaintiff No. 1 to pay the debts of his father and the decree and sale were quite valid. But the simple answer to this is that the mortgage suit was not instituted in a representative capacity and the plaintiffs in the mortgage suit chose to implead the individual members of the mortgagors' family as defendants in that suit. They never brought the suit as against one or other member on the footing that they happened to be the karta and represented the whole family. Besides this, this plea was not taken by the defendants 1st party in their written statement and the appellants cannot be allowed to raise this point at this stage. I thus do not find any merit in this contention and it must be overruled. No other point was raised by learned counsel for the appellants.
20. In the result, the appeal is dismissed with costs payable to plaintiff respondent No. 1 and the judgment and decree of the trial court are affirmed.
B.N. Jha, J.
21. I agree.