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Kunndan Lal and anr. Vs. Gajadhar Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1907)ILR29All728
AppellantKunndan Lal and anr.
RespondentGajadhar Lal and anr.
Excerpt:
civil procedure code, section 457 - guardian ad litem--appointment of married woman whose husband is alive. - .....distinguish this case from those cases on the ground that in neither of them was a married woman a guardian appointed by an authority competent to appoint a guardian. musammat jamna kunwar is a guardian appointed by competent authority to kundan lal and balbhadra prasad while they were minors. our attention is called to the provisions of section 443 of the code of civil procedure, also to the ruling in kachayi kuttiali haji v. udumpumthala kunhi puttra (1905) i.l.r., 29 mad., 58. looking, however, to the plain words of section 457 we hold that in no case can a married woman be appointed as guardian ad litem. inasmuch as she is so disqualified, any apparent appointment of her as guardian is not a mere irregularity.2. we decree the appeal, set aside the decree of the court below and grant.....
Judgment:

Knox, Acting, C.J. and Dillon, J.

1. The point which we have to consider in this appeal is whether the decree, dated the 16th of November 1900 is a nullity as against the plaintiffs as they were not represented in the suit in which the said decree was made by a legally appointed guardian. The plaintiffs up to the time when the suit was brought which resulted in the decree of the 16th November 1900 were, and one of them still is a minor. In the former suit they were arrayed as defendants under the guardianship of Musammat Jamna Kunwar, their mother and certificated guardian, but no application was made to the Court to have Musammat Jamna Kunwar appointed as guardian ad litem nor was any formal order at any stage in the suit to that effect passed. It is contended by the learned advocate for the appellants that in any case, looking to the language of Section 457 of the Civil Procedure Code, Musammat Jamna Kunwar could not have been appointed guardian ad litem, she being a married woman with her husband still alive. It is true that the husband is said to be more or less non compos mentis but the words used in Section 457 are very clear and emphatic; they are in no way hedged or limited by any qualifying word, and according to them a married woman cannot be appointed guardian ad litem. This was the view taken by this Court in Sham Lal v. Ghasita (1901) I.L.R., 23 All., 459 and this case is followed in an unreported case, S.A., No. 1234 of 1905, decided on the 1st of February 1907. On behalf of the respondents an attempt was made to distinguish this case from those cases on the ground that in neither of them was a married woman a guardian appointed by an authority competent to appoint a guardian. Musammat Jamna Kunwar is a guardian appointed by competent authority to Kundan Lal and Balbhadra Prasad while they were minors. Our attention is called to the provisions of Section 443 of the Code of Civil Procedure, also to the ruling in Kachayi Kuttiali Haji v. Udumpumthala Kunhi Puttra (1905) I.L.R., 29 Mad., 58. Looking, however, to the plain words of Section 457 we hold that in no case can a married woman be appointed as guardian ad litem. Inasmuch as she is so disqualified, any apparent appointment of her as guardian is not a mere irregularity.

2. We decree the appeal, set aside the decree of the Court below and grant the plaintiffs a declaration to the effect that decree No. 77, passed by the Subordinate Judge on the 16th of November 1900, and the decree in appeal be discharged. The plaintiffs will get their costs in both Courts.


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