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Rup Chand Vs. Dasodha and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Judge
Reported in(1908)ILR30All55
AppellantRup Chand
RespondentDasodha and anr.
Excerpt:
guardian ad litem - appeal--guardian ad litem not made a party by appellant--limitation. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the..........hearing of this appeal, namely, that it is barred by limitation. the defendant respondent to the suit, musammat dasodha, is a minor and was represented in the court below by a guardian ad litem. in the memorandum of appeal which was filed the guardian ad litem was not made a party to the appeal. this it is said was due to the fact that in the copy of the decree which was furnished to the appellants the fact that there was a guardian ad litem was not stated. the memorandum of appeal was filed within time, but the application which was subsequently made to add the name of the guardian ad litem to the record was made some months after the expiry of the time allowed for the presentation of the appeal. it is now said that the appeal was not complete until the guardian ad litem was added,.....
Judgment:

John Stanley, C.J. and William Burkitt, J.

1. Mr. Moti Lal for the respondents raised a preliminary objection to the hearing of this appeal, namely, that it is barred by limitation. The defendant respondent to the suit, Musammat Dasodha, is a minor and was represented in the Court below by a guardian ad litem. In the memorandum of appeal which was filed the guardian ad litem was not made a party to the appeal. This it is said was due to the fact that in the copy of the decree which was furnished to the appellants the fact that there was a guardian ad litem was not stated. The memorandum of appeal was filed within time, but the application which was subsequently made to add the name of the guardian ad litem to the record was made some months after the expiry of the time allowed for the presentation of the appeal. It is now said that the appeal was not complete until the guardian ad litem was added, and that when that was done the appeal was barred by the Statute of Limitation. It has been decided in a case in this Court, namely, the case of Khem Karan v. Har Dayal (1881) I.L.R. 4 All. 87 that a suit may be brought against a minor before a guardian has been appointed and that limitation runs from the date of the plaint and not from the appointment of the guardian. We think that a memorandum of appeal should be governed by the same considerations. We may point out that a guardian ad litem is not a party to a suit or appeal. He is merely named in the record as the person appointed by the Court to look after the interest of the minor. We think that the memorandum of appeal was filed within time, and that there is no substance in the objection. We therefore disallow the objection.

2. We now come to the merits of the appeal. The plaintiff, Hup Chand, who is a grandson of one Narain Das, deceased, brought the suit out of which the appeal has arisen for a declaration that he and his uncle Hardwari Lal were beneficially entitled to all the ancestral property derived from Narain Das, on the allegation that the descendants of Narain Das formed a joint Hindu family, and that he, the plaintiff, and Hardwari Lal as the surviving male members of that family were now entitled absolutely to the entire property. The defendant Musammat Dasodha is the widow of Lalu Mal, deceased, who was a great-grandson of Narain Das. She claimed through her husband a life interest in one-fourth of the property of Narain Das. The parol evidence which was given in support of Musammat Dasodha's case was extremely unsatisfactory, in fact so weak as to be almost worthless, but a number of documents were adduced in evidence which satisfied the learned Subordinate Judge that prior to and at the death of Lalu Mal in July 1903, the family had ceased to be joint. We think it unnecessary to refer particularly to these documents. In the lengthy judgment of the Subordinate Judge they are referred to, but we may point out that one or two of these seem to form an insurmountable barrier to the granting of the relief which the plaintiff seeks. On the 30th of June 1902, a document which is called a deed of compromise was prepared between Musammat Gomi as the certificated guardian of Musammat Dasodha, the widow of Lalu Mal, which is signed by Hardwari Mal and also by Kedar Nath, a grandson of Narain Pas, in which the ancestral property was divided between the members of the family. Now the plaintiff Rup Chand was no party to this instrument, but we find that shortly after its execution, namely, on the 5th of July 1902, he executed a bond in favour of a creditor in which he hypothecated one-fourth of the property describing himself as being the owner of one-fourth. In that bond be gives an assurance to his creditor that he was the absolute owner of the one-fourth, without the participation of anyone else. A similar bond was executed by him on the 25th March 1903. In view of these documents, which are supported by a number of other documents to which we have not been particularly referred, we think that the family was not joint at the date of their execution and that the Court below could not have come to any other conclusion than that at which it arrived. We dismiss the appeal with costs.


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