1. This is an appeal by the minor defendants 4 and 5.
2. The facts briefly are these: A suit for sale was brought by one Lala Bithal Das against the mortgagors and two persons, Baidy Ram and Munni, as subsequent transferees. When Baidy Earn died, his sons Earn Kishen and Lachman, the present appellants, were brought on the re-cord. The plaintiffs applied that Chunna Ram, the paternal uncle of the minors, Ram Kishen and Lachman, should be appointed their guardian for the suit.
3. A notice was issued to Chunna Ram to state to the Court whether he was willing to accept the appointment or not, and he was to appear on 15th August 1927. The notice was served on Chunna Ram on 5th August 1927, but he did not appear on 15th August 1927. On the latter date the Courtdirected that the case should proceed ex parte against the minors, Ram Kishen and Lachman. There is no formal order appointing Chunna Ram as the guardian for the suit of the minor defendants.
4. On 15th August 1927, it was reported to the Court that the original plaintiff, Bithal Das had died leaving a will, and it would require some time to bring his legal representatives on the record. The learned Judge granted time, and the case was adjourned for three months.
5. On 8th November 1927, an application was made to the Court to substitute the names of two persons as the legal representatives of the deceased plaintiff, Bithal Das. On this application being made, an order was passed to the effect that two notices should issue to the defendants, one was a notice asking the defendants to say if they objected to the bringing on the record of the two persons as the legal representatives of the plaintiff, and the other notice was to the effect that the 23rd January 1928 had been fixed for the hearing of the case.
6. On 23rd January 1928 Chunna Ram appeared before the Court of first instance and made an application (No. 65-C) asking the Court to make him a party. He said that the mortgage by virtue of which Baidy Ram had been made a defendant, was the joint family property of himself and Baidy Ram, that he had an interest in the bond and that on that ground he should be made a party. This application was rejected on that very day, on the ground that application had been made, too late.
7. Thereupon Chunna Ram made an application to the Court saying that so far no guardian had been appointed for the minors, that he did not want, to act as the guardian of the minors and some other person should be appointed. The learned Munsif rejected this application on the ground that the notice of appointment of guardian had been served on the application on 5th August 1927, and if a second notice had been issued to Chunna Ram, it was issued by mistake of the office.
8. Thereupon a third application was made by Chunna Ram on behalf of his minor nephews and this time it was for adjournment. He said that he had been appointed a guardian against his will, that he had no previous information of the case, that he applied for summoning a record (on 18th January 1928) in the impression that he was a party to the suit and that in the interest of the minors an adjournment should be granted. The learned Musif rejected this application and proceeded to hear the case.
9. The case was heard, and a few days-later judgment was pronounced. It was found that the minor defendants, Ram Kishen and Lachman, had failed to prove that they held any priority over the mortgage in suit. We may mention here that this was the only point taken on behalf of the minors that really affected the case. Their case was that the mortgage in favour of their father, although of a date subsequent to the date of the mortgage in suit, had been executed to pay off a decree (No. 131 of 1916) passed on a mortgage of 1905, and that therefore they had priority over the plaintiff's mortgage.
10. Chunna Ram filed an appeal before the learned District Judge, and it was heard by the Additional Subordinate Judge of Muttra. The learned Subordinate Judge dismissed the appeal. He was of opinion that the allegations of Chunna Ram that his interests were adverse to those of the minors was without force, that the repeated applications and the allegations made in them by Chunna Ram were made and done with the sole object of obtaining an adjournment and that the Munsif was right in refusing to allow an adjournment, The learned Subordinate Judge agreed with the contention of the minors before him that there could be no appointment of a guardian against his will, but he observed:
But the question is, if he fails to object to his appointment within 15 days of the service of notice on him, and the Court passes orders behind his back, is he competent to retire at his own sweet will and force the Court to stop proceedings at any time he chooses to do so.
11. These observations are very pertinent, but they would be good only if they tallied with the circumstances of the case.
12. As we take it, it is the duty of the Court to protect the interests of a minor. A guardian is appointed for that purpose, and for that purpose alone. If the Court finds that the guardian is pot acting properly, it would be the duty of the Court to remove him and to see that the interest of the minor is protected. When a person who has been properly appointed guardian of a minor has taken proper steps to safeguard the interests of the minor, and then for some reason or other, wants to force the hands of the Court by preferring a resignation, it would be the duty of the Court to see whether the resignation should be accepted or not. If the minor concerned is not likely to be prejudiced thereby the Court may decline to remove the guardian. Such a cape arose in Narender Singh v. Chatrapal Singh : AIR1926All437 . It was laid down in that case that a guardian appointed by the Court for the protection of a minor's interest has no absolute right to remove himself from the litigation and force the hands of the Court at his own sweet will. The learned Judges who decided the case took considerable pains to discover whether the minor's interest was suffering or not. They came to the conclusion that the minor's interest did not suffer, and that the only object of the application on the part of the guardian asking for her retirement was to delay the trial of the suit.
13. That being the principle, we have to see whether in this particular case before us the Court should have accepted the application of Chunna Ram either to let him retire from the office of guardian, or to grant him time to prosecute the interest of the minors.
14. We are not laying any particular stress on the fact that there is no order for the appointment of Chunna Earn as the guardian of the minors. We assume that a formal order will not be important, if the minors' interests have been duly protected. But we find in this case that the written statement discloses a case which, on the face of it, has some force. At least, it is a case which was well worth being put before the Court. When the applications of Chunna Ram Were rejected, he I filed a' written statement and he filed certain documents, but these could not be proved because he did not summon any witnesses for the minors' case. The documents produced required formal evidence in order to be proved. In the circumstances, the learned Munsif could have easily seen that the interest of the minors had not been protected. The man who had been appointed guardian had filed a written statement, but had taken no steps to summon witnesses. We may note that there was no hearing at all before 23rd January 1928, the date of the hearing when Chunna Ram appeared and declined to act. He said that his interest was adverse to that of the minors. It has been argued that if he was a member of a joint Hindu family with the minors, it would be to his interest to prosecute the defence on behalf of the minors. The question whether Baidy Ram was joint or not with Chunna Ram has not been gone into, and we need not express any opinion on the point. But it is clear that when Chunna Earn claimed a half-share in the property which stood in the name of the minors' father, on the face of it, at any rate, he was claiming an interest which was adverse to that of the minors:
Claiming an interest adverse to that of the minors does not mean that the minors and Chunna Bam were fighting or were actually on inimical terms.
15. The expression is an expression of law, and it means that the interest of the minors cannot be safe in the hands' of Chunna Ram. There was the assertion on the part of Chunna Ram that his interest was adverse to that of the minors. The trial Judge ought to have accepted this statement as correct in the interests of the minors, even as a matter of precaution and extra care for the benefit of the minors. Then Chunna Ram definitely declared that he was not going to act for the minors. It was not a case like the one already quoted by us, in which the guardian had taken every step to protect the interest of the minors. So far Chunna Ram had done nothing whatsoever to protect the interests of the minors. As we have said, he did not file a written statement till the eleventh hour and he had not summoned witnesses. It has been argued that he was taking all the interest that was possible for him to take in the minors but was neglectful of his duty and that he had neglected to summon witnesses, and that was why he was asking for time. If that was sq, the interests of the minors were in the hands of a man who had admittedly neglected to protect those interests. In the circumstances, it was the duty of the Court below to remove Chunna Ram from the guardianship, if he had already been appointed, or to decline to appoint him guardian, if there was no formal order for his appointment. We are clearly of opinion that the interests of the minors have suffered in the present litigation at the hands of Chunna Ram. We are therefore of opinion that the appeal should be allowed
16. It has been argued on behalf of the plaintiffs-respondents that if the Court be inclined to allow the appeal, the costs which have been thrown away should be paid by Chunna Ram personally, because, after all he alone is responsible at least, mainly responsible for all that has happened. We think there is force in this contention. Chunna Ram was twice served with notice and it was his obvious duty if he was not going to act as the guardian of his minor nephews, to come before the Court and say so.
17. The counsel for respondent 6, Munnii has argued that he should have his costs, because there is no contest between him on the one hand, and the appellants on the other, and he was unnecessarily brought before this Court.
18. It was argued on behalf of the appellants that the appeal had arisen out of a mortgage suit, and it was necessary that all the parties to the suit should be before this Court. If that was so, the plaintiffs made respondent 6, Munni, a party in their own interest, and therefore they are bound to pay his costs.
19. In the result, we allow the appeal, set aside the decree of the Courts below and remand the suit to the Court of first instance for trial according to law. The learned trial Judge will now appoint a fresh guardian for the appellants and pass a proper order for the appointment. The costs here and hitherto as between the plaintiff's, on the one hand, and the minor defendants 4 and 5 (Ram Kishen and Lachman) on the other, will abide the result. The costs will include counsel's fees in this Court on the higher scale. As Chunna Ram has been mainly responsible for the throwing away of so much costs, the plaintiffs will be entitled to recover their costs, excepting the court-fee paid paid by them from Chunna Ram, include ing costs in it he Courts below and. in this. Court. If the plaintiffs recover their costs which have been thrown away from Chunna Ram, they will not be entitled to recover the same from Lachma and Ram Kishen again, in case the plaintiffs succeed after, trial.