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Aramita Lisboa De'Souza Guido Vs. Audithrao Waghoji Raje Shirke (11.01.1926 - BOMHC) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 974 of 1924
Judge
Reported inAIR1927Bom613; (1927)29BOMLR1357
AppellantAramita Lisboa De'Souza Guido
RespondentAudithrao Waghoji Raje Shirke
Excerpt:
civil procedure code (act v of 1908), order xxxii, rules 3, 4-suit against minor-notices to the minor and his guardians-ex parte decree against minor-substantial prejudice to minor-setting aside of ex parte decree;a suit was filed against several defendants, one of whom was a minor. the minor had properties both in baroda and in bombay. as regards the baroda properties, the baroda court appointed the suba of baroda as guardian. the bombay high court appointed the official receiver as guardian of the bombay properties, and the minor's mother as guardian of the person of the minor. in the suit, notices of the application for appointment of the guardian ad litem wore given to the official receiver, and to the mother and minor. the official receiver declined to act; but the attorneys for the..........it is provided first by rule 3 that notice should be given to the minor and to any guardian of the minor appointed or declared by an authority competent in that behalf, and, where there is no such guardian, to the father or other natural guardian of the minor, or, where there is no father or other natural guardian, to the person in whose care the minor is. the object of giving notice to the minor is that the person may not be a minor at all, and the plaintiffs may have by mistake sued him as a minor. so, if notice is given to that person, he can appear before the court and show that he is not a minor, and the suit would then be prosecuted against him personally. then notice to the guardian of the minor, appointed or declared by an authority competent in that behalf, and in default to.....
Judgment:

Taraporewala, J.

1. This rule is taken out by the Suba of Baroda for setting aside the ex parte decree obtained by the plaintiffs in this suit. The ground on which the decree is sought to be set aside is that the first defendant was admittedly a minor when the suit was filed, and he was not properly represented in this suit inasmuch as a guardian ad litem was appointed for him in this suit without giving notice to the Suba of Baroda, who has been appointed a guardian of the properties of the minor situated in the Baroda State, and further that no proper notice of the suit was served on the mother of the minor or on the minor himself as required by law, and that a person, who had been given a power of attorney by the mother for managing her own affairs before she was appointed guardian of the person of the minor, had purported to instruct the attorneys in Bombay on behalf of the mother without her knowledge and consent and that the appointment of the mother as guardian on the consent of the said attorney was not a proper appointment at all.

2. This suit was filed by the plaintiffs as the purchasers of the right, title and interest of a sharer in the property in suit, which they purchased at a sale held under a decree obtained by the mortgagees of that sharer. A half share in the property is admittedly owned by the minor first defendant in this suit. The plaintiffs, therefore, filed this suit for partition of the property between the minor first defendant and the other sharer whose interest was represented by the plaintiff's as purchasers, and they prayed that the partition might be effected by the sale of the property as that was the beat method of partitioning between the plaintiffs and the first defendant. The second and third defendants were made parties to the suit as mortgagees of the share of the minor first defendant. Admittedly the minor defendant's share was mortgaged to the second and third defendants.

3. Sometime prior to the suit there was a suit as to the appointment of a guardian of the property and the person of the minor in Bombay. The Suba of Baroda applied to be appointed the guardian of the person of the minor and of property in Bombay; the mother of the minor opposed the application, and ultimately by consent, Mr. Moos was appointed guardian of the property of the minor in British India and the mother was appointed guardian of the person of the minor.

4. When this suit was filed, the plaintiff's gave notice of the application for the appointment of the guardian ad litem of the minor defendant to Mr. Moos who was the guardian of the property in British India. Mr. Moos declined to act as guardian ad litem. Notice was also sent to the mother and the minor addressed to their place of residence at Baroda. It appears that the solicitors on behalf of the mother put in an appearance and consented to the appointment of the mother as guardian of the minor defendant. She was so appointed. Thereafter the guardian took no steps to defend the suit and did not appear at the hearing, and so far as the minor is concerned, an ex parte decree was passed in favour of the plaintiffs. The other two defendants did appear at the hearing and so far as they were concerned, the decree was not ex parte.

5. There are two grounds on either of which if proved the decree would be set aside. The first is whether the order appointing the mother guardian ad litem is illegal and consequently there was no representation in law of the minor defendant in the suit at all, and if that be so, there is no doubt that the decree must be set aside. After a careful, consideration of the very interesting arguments advanced by Sir Chimanlal Setalvad on behalf of the plaintiffs as to the construction of Order XXXII, Rules 3 and 4, and on a consideration of the authorities which are not quite directly in point but which have a bearing on the question, I have come to the conclusion that the want of notice to the guardian appointed by the Baroda Court is not an illegality, but at the most it is an irregularity. The object of Order XXXII, Rules 3 and 4, is to provide that the minor's interest should not suffer and that he should be properly represented in a suit filed against him. For that purpose it is provided first by Rule 3 that notice should be given to the minor and to any guardian of the minor appointed or declared by an authority competent in that behalf, and, where there is no such guardian, to the father or other natural guardian of the minor, or, where there is no father or other natural guardian, to the person in whose care the minor is. The object of giving notice to the minor is that the person may not be a minor at all, and the plaintiffs may have by mistake sued him as a minor. So, if notice is given to that Person, he can appear before the Court and show that he is not a minor, and the suit would then be prosecuted against him personally. Then notice to the guardian of the minor, appointed or declared by an authority competent in that behalf, and in default to other persons as mentioned in Order XXXII, Rule 3, is required to be given for the reason that a person, who is appointed a guardian either by a competent authority or who is a, natural guardian or in whose custody the minor is, is the person best fitted to represent the interests of the minor and who would also be in a position to know the facts and to give proper instructions as to the defence of the minor. It is obligatory on the Court that no order should be made appointing a guardian ad litem unless and until the necessary notices under Order XXXII, Rule 3, have been given.

6. Assuming, however, that notice was not given to the minor, would the order made without such notice be illegal There is the authority of the Privy Council for holding that even if notice is not given to the minor, where the minor is properly represented in the suit, the absence of notice is merely an irregularity and not an illegality: see Mussammat Bibi Walian v. Banke Behari Pershad Singh 5 Bom. L.R. 822.

7. Then as to the notice to the guardian of the minor, if notice is given, as in this case, to a guardian of the property of the minor appointed by this Court, in my opinion, the object of Order XXXII, Rule 3, is served, because the reason of the rule is that a person in a position to represent the interest of the minor properly should be given notice before any other person is appointed guardian ad litem, and in this case Mr. Moos the guardian appointed by the Court was such a person. Mr. Moos was appointed guardian of the properties of the minor in British India by consent of the mother of the minor and the petitioner the Suba of Baroda; so that, so far as the properties in Bombay were concerned, Mr. Moos was the proper person to represent the interest of the minor, and notice was admittedly given to him. He declined to act as guardian ad litem. The mother was appointed guardian of the person of the minor by this Court by consent of the petitioner the Suba of Baroda at the same time as Mr. Moos was appointed guardian of the properties of the minor in British India. The minor lived with her. Notice was sent to her at Baroda. She has made an affidavit that she was at that time in Poona and did not receive the notice. The minor also says that he never received the notice and never had any knowledge of the suit. So far as the mother's denial is concerned, I have no hesitation in rejecting it. Even assuming that she was at Poona at the time, it is inconceivable that her constituted attorney, who is supposed to have received the notice, should go to the length of instructing solicitors on her behalf as he purported to do without her knowledge and consent. It is not shown, and I do not believe that this constituted attorney acted fraudulently and kept the mother and the minor in ignorance and allowed the plaintiffs to snatch a decree.

8. I am not quite sure, and I do not wish to express any opinion on the point, whether under the aforesaid circumstances a notice to the Suba of Baroda was at all necessary under Order XXXII, Rule 3. But I hold that even if notice to the Suba of Baroda, who has been appointed by competent authority guardian of the properties of the minor in the Baroda State, was necessary, the want of such notice was an irregularity and the order made in the suit is not illegal.

9. The mother was appointed guardian ad litem,. She did not appear at the hearing and she did not defend the suit and the decree was passed ex parte.

10. The next question, therefore, for me to consider is whether by reason of the minor not being represented by the guardian ad litem at the hearing, there was any prejudice to the interest of the minor. If there was, I would have no hesitation in setting aside the ex parte decree. Even though the order may not be illegal in the first instance, if it is shown that the guardian negligently did not appear and defend the interest of the minor and that the decree has in fact prejudiced the interests of the minor, the Court would be bound to sat it aside. On this question, it is not merely some speculative prejudice to the interest of the minor that the Court has to consider. On the facts as disclosed in the affidavits of the mother and the attorney of the Suba, all that is alleged is that if the Bombay property alone had not been ordered to be partitioned and that if the Court had ordered that all the properties in British India should be partitioned, it might have been that this property might not have had to be sold and that in that case the minor would not have suffered the loss, which the petitioner alleges he has in fact suffered, by reason of the property having been sold at an undervalue. Now there is no doubt that although in the first affidavit of the constituted attorney it is stated that the property was worth rupees one lac, the property fetched the best possible price at the sale. The Commissioner fixed a reserved bid, as he always does in these cases, and he knocked down the property to the plaintiffs for a price of Rs. 45,000 which must have been at least not under the reserved bid. In my opinion there is nothing to show that a fair price was not fetched. The pro. perty market in Bombay was not then and is still not favourable, but the Court has not to speculate whether if this property had not been sold, it might have proved more valuable at some future date. lt may bo that the property may deteriorate further and might depreciate in value and may fetch less than the price obtained at the sale. The prejudice to the minor, if any, by the sale is not such as would induce the Court to set aside the decree in the interests of the minor. In my opinion, the re-opening of the decree would really mean putting the moneys of the minor in the pockets of the lawyers. The question of partition of all the family properties in British India would open up a vast field for the lawyers to litigate upon and to make costs, and ultimately the party suffering would be the minor. In any event, I do not see any probable gain to the minor, by the re-opening of the decree.

11. Under the circumstances, I hold that the petitioner has not made out a case for the setting aside of the decree. The rule must, therefore, be discharged with costs, to be paid by the petitioner personally.


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