1. This is a plaintiff's second appeal. It appears that there were five brothers, of whom one was Brij Nandan Lal and another was Raghunandan Lal. Raghunandan Lal was adopted by a man named Kewal Rai, whose widow is Mt. Anchu Devi. Bhagwati Prasad, the plaintiff to the suit out of which this appeal has arisen, is the grandson of Mt. Ancho Devi, being a son of Raghunandan Lal; and she was appointed guardian of the plaintiff under a certificate of guardianship, the plaintiff being then a minor. One of the aforementioned five brothers, whose name was Gopal Prasad, was fined Rs. 200 under the Salt Act, and for the realization of that fine a flour-mill and some furniture were attached by Government. Mt. Ancho Devi objected in the Court of the Additional Judge at Aligarh, under Order 21, Rule 58, Civil P. C, on behalf of the minor, but her objection was unsuccessful and the property was sold at auction on 11th August 1930. Thereafter Brijnandan Lal, on his own behalf and as next friend of Bhagwati Prasad, minor, instituted a suit in the Munsif's Court at Mahaban in the district of Muttra for a declaration that the property which had been sold belonged to them and not to Gopal Prasad: vide the copy of the decree of that suit on the record (No. 304 of 1930). That suit and a subsequent appeal were both dismissed for failure to make good the deficiency in court-fees, and the Secretary of State, who was defendant 1 to that suit, was awarded costs amounting in all to Rs. 202. This decree for costs was thereafter put into execution and the money was realized from Bhagwati Prasad, who then instituted the suit out of which this appeal arises for recovery of Rs. 202 plus execution costs from the Secretary of State. He pleaded fraud and mala fides and also want of authority on the part of Brij Nandan Lal to sue on his behalf. The trial Court decreed the suit, but the lower Appellate Court has reversed that decree and has dismissed the suit. Hence this appeal by the plaintiff. The learned Judge says:
The only evidence to prove that Mt. Anchu Devi was the certificated guardian of Bhagwati Prasad on the record is the certificate of guardianship itself.
2. In the absence of any plea of fraud in respect of the obtaining of the certificate of guardianship, the production of that certificate is all that is required to prove the fact of the appointment of Mt. Anchu Devi, as guardian, and learned Counsel for the defendant-respondent has not contested this point and does not challenge before me the factum of Mt. Anchu Devi's appointment by the District Judge as guardian of her minor grandson. The learned Judge then considers Order 32, Rule 4, Civil P. C, and rightly observes that the leave of the Court, as contemplated in Sub-section (1) need not necessarily be in writing and that the oral granting of leave may be inferred from circumstances. The learned Judge says:
All that was required in such a case was leave of the Court, not necessarily that leave to be in writing. There is nothing in the record to show that the Court had not granted, such leave. The case was filed and the only ground on which the suit was dismissed was deficiency o court-fees. It means and can safely be inferred that the Court had permitted Brij Nandan Lal to act as next friend of Bhagwati Prasad.
3. I find it somewhat difficult to follow this reasoning, for there is admittedly nothing on the record to show that the Court had any knowledge of the fact that Bhagwati Prasad had a certificated guardian. Learned counsel for the defendant-respondent relies on Section 114(e), Evidence Act, under which the Court may presume that judicial acts have been regularly performed; but there can be no presumption as regards knowledge of a fact which a judicial officer would not have unless that fact was intimated to him. Brij Nandan Lal was the uncle of the minor, and the Court might naturally regard him as the proper person to act as next friend, unless it was brought to the notice of the Court that some other person had been appointed as guardian by the District Judge. Not only is there nothing on the record to show that any such information was given to the Court, but there is a clear and unambiguous admission in para. 5 of the written statement to the effect that 'nobody brought it to the notice of the Court that the plaintiff had a certificated guardian.' The learned Judge of the lower Appellate Court has ignored this admission. In the circumstances, I am unable to hold that Raghunandan Lal was acting as next friend of Bhagwati Prasad, plaintiff, with the leave of the Court as contemplated by Order 32, Rule 4(1), Civil P.C. The plaintiff was thus unrepresented in that suit and the decree against him is a nullity.
4. It is argued by learned Counsel, for the defendant-respondent that the plaintiff's remedy is against Brij Nandan Lal and that he ought to have been impleaded as a defendant to this suit. I do not think that this plea can prevail. The plaintiff had a cause of action against the Secretary of State, who had taken out execution against him under a decree passed in a suit in which the plaintiff was not represented by his certificated guardian or by a next friend acting with the leave of the Court and was therefore not a party. The decree was against Brij Nandan Lal as well as against the plaintiff, and it was therefore open to the defendant-respondent under his decree to take out execution against the former as well as against the latter. For the reasons given above, I allow this appeal and set aside the judgment and decree of the lower Appellate Court and decree the plaintiff's suit with costs in all Courts. Leave to appeal under the Letters Patent is refused.