1. This is a first appeal by the defendants from an order of remand by the lower appellate Court. The plaintiffs sued for redemption of a usufructuary mortgage and mesne profits and the Court of first instance decreed redemption but dismissed the suit for mesne profits. The lower appellate Court has granted the claim for mesne profits and remanded the case to the Court of first instance for the determination of the amount of damages payable to the plaintiffs from Jait 1925 to Jait 1928. It was pointed out by the learned counsel for the appellants that in any case the claim for those three years, i.e., up to Jait 1928, is in excess of the claim in the plaint. The plaint was filed on 25th May 1927 and the claim for mesne profits therefore would only be put to Jait 1927 and not up to Jait 1928.
2. The main question before us is whether the plaintiff is entitled to mesne profits in view of the fact that when the plaintiff made his deposit under Section 83, T.P. Act, no formal order was passed appointing guardians for three minor defendants. The order sheet shows that the plaintiff did apply for the appointment of guardians and notices were issued to the mothers of these minor defendants to show cause why they should not be appointed guardians. At the same time that notice issued, another notice also issued addressed to the mothers as guardians under Section 83, T.P. Act, to withdraw the deposit and hand over possession of the property. The notices on the mothers were not served and eventually the Court ordered service by proclamation. The service by proclamation was made but no formal order was recorded appointing the mothers as guardians.
3. We consider that it is not correct to order substituted service on a person to show cause why he should not be appointed guardian. In fact, under a more recent rule of this Court, it is now provided in Order 32, Rule 4-A (3) that refusal to accept notice shall be presumed to be refusal to act as guardian. Accordingly, when summons was returned unserved, the plaintiff should have applied for other persons to be appointed guardian. It is always open to a plaintiff to ask the Court to appoint an officer of the Court or a vakil of the Court to act as guardian and pay the necessary fees.
4. We have been referred for respondents to William v. Banke Behary  30 Cal. 1021 where there was no formal order appointing the mother to act as guardian-ad-litem of her minor sons. But in that case the mother of the minor defendants appeared throughout the proceedings and acted as their guardian. The case therefore is widely different from the present case where the mothers did not appear and did not act for the appellants. We are referred by appellants' counsel to various rulings among which we may mention the case of Bhura Mal v. Har Kishan Das  24 All. 383 where a notice was issued for appointment of guardians to a minor but there was no formal order. It was held that in default of a formal order the minors were entitled to get the decree set aside. A similar rule was laid down in Hanuman Prasad v. Mahomed Ishaq  28 All. 137 and Ghampi v. Tarachand A.I.R. 1921 All. 892. In another set of rulings Kannu Mal v. Indarpal Singh A.I.R. 1923 All. 183 and Gokul Kalwar v. Chandar Sekhar : AIR1926All665 it was held that a mortgagor to save the payment of interest after the deposit of mortgage money in Court has to see that a proper guardian is appointed for minor mortgagees. We consider that the case of a claim for mesne profits should be governed by the same rules as the case of the saving of interest. Therefore we consider that it is necessary for a proper guardian to be appointed, that is for notice to be served not by substituted service, but by ordinary service on a person who is capable of becoming a guardian and who agrees expressly or by indication to become a guardian.
5. Accordingly, we allow this appeal and we set aside the order of remand of the lower appellate Court and we restore the decree of the Court of first instance. The defendants will receive costs in the lower appellate Court and in this Court.