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Kumara Kangaya Goundar Vs. Arumugha Goundar and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 1328 of 1964
Judge
Reported inAIR1970Mad179
ActsCode of Civil Procedure (CPC) , 1908 - Order 32, Rules 1, 3(1), 3(5) and 3(7)
AppellantKumara Kangaya Goundar
RespondentArumugha Goundar and ors.
Appellant AdvocateK. Sarvabhauman and ;T.R. Mani, Advs.
Respondent AdvocateS. Mohan, Adv.
Disposition Appeal dismissed
Cases ReferredIn Rarichan v. Manakkal Raman
Excerpt:
.....be taken care by adult whose interest is not adverse with that of minor - no omission on part of grandfather that has prejudiced interest of minor - failure to record reasons under rule 4 clause 2 was only an irregularity and will not by itself vitiate decree if minor was properly represented by guardian appointed by court. - - the defence in the mortgage suit failed in the trial court and in appeal, and the second appeal therefrom failed at the admission stage itself. he concludes that he was satisfied on the evidence adduced in the case that there was nothing to establish that any prejudice was caused to the appellant by any omission on the part of the guardian ad litem appointed in the case, he remarks that the guardian had done everything which he could reasonably be expected..........guardian was available and in every way interested in his welfare as his only son, his paternal grandfather was appointed as guar-dian and the gross negligence of this guardian in the conduct of the suit resulted ia a decree being passed against him. 2. first the relevant facts of the case may be set out briefly. the properties in dispute in this suit belonged to one palaniswami goundan. he settled the suit properties on his granddaughter, the second defendant in the suit and one muthuswami who had been proposed as her husband, both of them minors, under the settlement deed dated 13-5-1936, conferring absolute rights in the properties on the second defendant and her proposed husband. the second defendant was represented for the settlement by her mother valliammal as guardian and the.....
Judgment:

Natesan, J.

1. The substantial point in this second appeal is whether the decree in O. S. 386 of 1953 on the file of the Sub Court Coimbatore is vitiated and a nullity as against the plaintiff for want of proper and effective representation therein of the plaintiff who was a minor during its pendency. The plaintiff who seeks to have the decree against him set aside contends that, when his father as his natural guardian was available and in every way interested in his welfare as his only son, his paternal grandfather was appointed as guar-dian and the gross negligence of this guardian in the conduct of the suit resulted ia a decree being passed against him.

2. First the relevant facts of the case may be set out briefly. The properties in dispute in this suit belonged to one Palaniswami Goundan. He settled the suit properties on his granddaughter, the second defendant in the suit and one Muthuswami who had been proposed as her husband, both of them minors, under the settlement deed dated 13-5-1936, conferring absolute rights in the properties on the second defendant and her proposed husband. The second defendant was represented for the settlement by her mother Valliammal as guardian and the proposed husband Muthuswami was represented by his father Ponnuswami as guardian. Along with the settlement, a maintenance deed came to be executed by the guardians for maintaining the settlor Palaniswami, The marriage of the second defendant with Muthuswami as proposed took place shortly after and the plaintiff is the child bora to them on 30-10-1940.

Disputes arose between the two grandsons, the plaintiffs paternal grandfather Ponnuswami and the plaintiffs maternal grandmother Valliammal, bringing about estrangement between the second defendant and her husband. The plaintiff's mother the second defendant, who had a half share in the properties under the settlement deed, usufructuarily mortgaged the same to the third defendant in the present suit under the original of Ex. B-8 on 30-6-1943 for Rs. 2,000. The family dispute finally got settled in a way and the second defendant and her husband, as the father and mother of the plaintiff, executed the settlement deed Ex. A-6 on 10-7-1943 in favour of their son, the present plaintiff. But the settlement deed had to be compulsorily registered. For the purpose of this settlement, the present plaintiff who was a minor then was represented by his paternal grandfather Ponnuswami as guardian, The first defendant got an assignment of the mortgage above referred to and filed the suit O.S. No. 386 of 1953 for recovery of the mortgage amount against the present second defendant and her minor son, the plaintiff, the settlee under Ex. A-6. The second defendant remained ex parte in that suit and in that mortgage suit the present plaintiff was represented by his paternal grandfather Ponnuswami as guardian ad litem.

The suit was hotly contested on behalf of the present plaintiff, the main plea in the mortgage suit on behalf of the plaintiff being that the mortgage was a sham and nominal transaction, not supported by consideration and had been antedated, having been executed after the present second defendant had parted with the title to the property under the settlement deed Ex. A-6 in favour of present plaintiff. The defence in the mortgage suit failed in the trial Court and in appeal, and the second appeal therefrom failed at the admission stage itself. It is seen from the records that senior advocates had been engaged on behalf of the present plaintiff at all stages. At the stage of the second appeal, the grandfather Ponnuswami was dead and the father Muthuswami himself preferred the second appeal as guardian ad litem of his minor son. And so the suit to set aside the decree.

3. In this suit for setting aside the mortgage decree by the plaintiff after coming .of age on the substantial issue of fact whether there was gross negligence on the part of the guardian at litem of the plaintiff in the conduct of the suit and the appeal therefrom, the learned District Mun-sif, Dharapuram, in a carefully considered judgment, finds against the plaintiff. He holds that there was no gross negligence on the part of the guardian of the plaintiff in the conduct of the suit and the appeal. This finding has been confirmed by the learned Subordinate Judge in appeal. He remarks that he cannot find anything in the oral evidence adduced in the case to show as to what facts or documents were omitted to be placed before the Court and as to what acts or omissions on the part of the guardian amounted to gross negligence. He concludes that he was satisfied on the evidence adduced in the case that there was nothing to establish that any prejudice was caused to the appellant by any omission on the part of the guardian ad litem appointed in the case, He remarks that the guardian had done everything which he could reasonably be expected to do in the interests of the minor. This issue being a finding of fact, naturally the learned counsel confined his challenge of the judgments of the Courts below to the question whether the minor plaintiff was properly represented in the mortgage suit.

4. The objection to the representation put forward by the plaintiff is that when there was available his father, the natural guardian, he should have been appointed and in his presence the paternal grandfather was incompetent to act as his guardian ad litem. It is said that there was no need for the Court to overlook the natural guardian and appoint the paternal grandfather as the guardian. It is urged that the appointment of a proper person as guardian ad litem of a minor defendant is imperative, and, in the absence of due representation of the minor, the decree does not bind him and cannot be enforced against him. There can be no doubt and it is not questioned that a decree passed against a minor properly represented is binding upon him as much as a decree passed against an adult, and that when there has been proper representation, the minor, to avoid the decree, may show that his guardian was guilty of gross negligence in the conduct of the suit. The question, therefore, is whether there was proper representation of the minor in the former suit,

5. The rules relating to the appointment of guardian pendente life for a minor defendant are to be found in Order 32, Civil P.C. Under Order 32, Rule 3 (1), any person who is of sound mind and has attained majority may act as his guardian for the suit, provided that his interest is not adverse to that of the minor. Rule 3 (2) which is important in the context of the present contention may bo set out:

'Where a minor has a guardian appointed or declared by competent authority, no person other than the guardian shall act as the next friend of the minor or be appointed as his guardian for the suit unless the Court considers for reasons to be recorded, that it is for the minor's welfare that another person be permitted to act or be appointed, as the case may be.' Rule 3 (4) requires that an application for the appointment of a guardian taken out by the plaintiff shall set forth in the order of suitability a list of persons who are competent and qualified to act as guardian for the suit for the minor defendant, the Court, for reasons to be recorded, being empowered to exempt the applicant from furnishing such a list. Rule 3 (5) sets out the particulars required in the affidavit in support of the application for appointment of guardian. This sub-rule does not indicate that before anybody else is considered, the claims of the guardian appointed or declared by Competent Authority, the natural guardian or the de facto guardian must be considered--see the requirement in Rule 3 (5) (c) for particulars of names and addresses of persons, if any, who in fie event of either the natural or de facto guardian or the guardian appointed or declared by competent authority, not being permitted to act, are by reason of relationship or interest or otherwise, suitable persons to act as guardians for the minor in the suit. Rule 3 (7) may also be set out--.

'No order shall be made on any application under Sub-rule (4) above except upon notice to any guardian of the minor appointed or declared by an authority competent in that behalf or where there is no guardian upon notice to the father or other natural guardian of the minor, or where there is no father or other natural guardian, to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule. . .'

It is seen from the records that in the mortgage suit the plaintiff therein, while applying for the appointment of a guardian for trie minor, proposed the minors father Muthuswami and his paternal grandfather Ponnuswami for the guardianship. Both the proposed guardians expressed their willingness to act as guardian and thereupon the Court appointed Ponnuswami, that is the paternal grandfather, as guardian, observing that 'Ponnuswami alias Subbaraya Goundan is willing to be guardian and is appointed guardian as he is already acting as guardian'. One must here bear in mind that Ponnuswami, the paternal grandfather, has been shown as the guardian of the minor in the settlement deed, Exhibit A-6. The father of the plaintiff in the present case in his evidence has stated that for the registration of the settlement deed Ex, A-6 (it was not registered on its execution and it was not compulsorily registered), though he was present, his father conducted the whole proceedings and that he and his wife, viz., the other defendant in the mortgage suit, recognised Ponnuswami as the guardian of his son in the settlement deed Ex. A-6. He went to the extent of stating that till his death he continued to be the guardian.

It is not contended that the procedure prescribed for the appointment of a guardian under Order 32, Civil P.C., was not followed in this case. I find nothing in Order 82 making it mandatory on the Court to appoint the natural guardian where he expressed his willingness to be appointed as guardian ad litem and not exercise its discretion if it so considers and appoint another person as guardian ad litem for the suit. It is not the case for the plaintiff that any one has been appointed or declared as guardian by Competent Authority for him when he was a minor, to compel the Court to appoint such person as guardian ad litem, unless the Court considered that it was for the minor's welfare that another person should be appointed, Then the Court is enjoined to record its reasons. Rule 3(7) of Order 32, Civil P.C., provides for notice of the application to be given to the father or other natural guardian of the minor where there is no guardian appointed or declared by Court. In this case notice went both to the father, the natural guardian and to the paternal grandfather and both expressed willingness. The records do not show any claim being pressed by the father against the grand-father or any objection being urged against the appointment of the grandfather as guardian ad litem. The Court has given reasons for its choice.

The circumstances of the case show that there would not have been any objection and it looks as if the father gave place for the grandfather. The essential requirement is that the person who is appointed as the guardian must be (1) a person of sound mind, (2) a major and (3) he must have no interest adverse to that of the minor in the matters in controversy, The Courts below find that no adverse interest has been made out in this case; and the trial Court has even indicated why the paternal grandfather was appointed guardian ad litem. The settlement deed by the father and mother was put in issue in that case as having preceded the mortgage sued upon, and Ponnuswami, the paternal grandfather, who was shown as the guardian of the minor by both father and mother in the settlement deed was chosen to represent the minor. It is one thing if a minor defendant is not represented at all, or a person appointed guardian ad litem whose interests were adverse to the minor. If a minor is not properly represented in the Suit, he can contend that he cannot be considered to have been a party to the suit. But that is not the position here.

6. Learned counsel for the appellant referred to Jivan Krishna v. Sailendranath, AIR 1946 Cal 272. But this case has absolutely no relevance to the matter under consideration now, That is a case under the Guardians and Wards Act and with reference to that Act it was there pointed out that the appointment of a person as guardian other than natural guardian, under Section 7(1) of the Guardians and Wards Act, implied under Section 7(2) of the Act, the removal of the natural guardian and that such a removal under Section 7(2) resulted in a permanent cessation or his powers under Section 41. Having regard to the provisions of the Guardians and Wards Act it was said that the appointment of a guardian by Court operated as a supersession of the natural or de facto guardian of a minor. Such a result does not follow on the appointment of a guardian ad litem for a minor defendant by the Court under the provisions of the Civil Procedure Code.

The rules under Order 32, Civil P.C., clearly contemplate the appointment of a person other than the natural guardian also as guardian ad litem. Order 82, Rule 7, (Rule 3 (7), (Mad.)?) is very clear on this point. It only provides that no order shall be made on any application for the appointment of a guardian ad litem except upon notice to the guardian appointed and declared by Court and where mere is no such guardian upon notice to the father or other natural guardian of minor. No doubt, the father would have a preferential right when there is no guardian appointed or declared by Competent Authority. Objections have to be heard which may be urged on behalf of any person served with notice under the Sub-rule 3 (7) of Order 32, Civil P. C. and reasons have to be given if a preferential claim is overruled for another. But it does not follow that every irregularity in the appointment without more will vitiate the appointment.

7. A reference to Kalachand Basak v, Amulyadhan Banerji, : AIR1934Cal474 , would show that the appointment of a person as guardian ad litem in the presence of the natural guardian does not vitiate the representation of the minor in the proceedings. In that case in an earlier litigation, the defendant in that suit died leaving his wife and three infant children. The attorney for the opposite party. intimated the widow that she must get herself appointed as guardian ad liteni of her minor sons and that otherwise he would get an officer of the Court appointed as guardian. For the wife intimation was sent that she was in mourning on account of the then recent bereavement and that the matter may stand over for a fortnight. But the defendant in the latter suit was appointed guardian ad litem after the Court was satisfied that he had no interest adverse to the minors. When the defendant wanted instructions from the widow, she intimated that she was herself willing to act as guardian and that the defendant could acquaint the Court of the fact. The defendant did inform the Court of the widow's willingness; but tbe widow took no further steps to substitute herself as a guardian ad litem, and Panckridge J., in the circumstances, remarked that he cannot see anything irregular in the appointment.

8. If a guardian ad litem has been appointed for a minor defendant and the minor's interests have been duly looked after in the litigation, mere irregularities in the appointment of the guardian cannot render the decree nugatory against the minor. The minor, to avoid the decree, must further prove that he was not effectively represented in the suit and that he was prejudiced by the failure of the guardian to take pleas that could have been validly raised on his behalf.

Law insists that the minor's interests in the litigation should be taken care of and the minor represented in the litigation by an adult whose interests are not adverse to that of the minor. The minor's interests in the litigation should not be neglected or prejudiced, and Courts have to be jealous in observing the requirements of the law in this regard in letter and spirit. All the same when it is found that the guardian who had been acting for the minor in the suit had not let down the interests of the minor and when the minor was in no way prejudiced, it is immaterial if some irregularity in the appointment is found. If the purpose for which a guardian ad litem is appointed -- to put forward pleas properly available for the minor in the case and protect his interest in the litigation by necessary representation -- has been achieved, the minor cannot later, by another guardian or on becoming a major avoid the decree if it is against him, on the ground of some irregularity in the procedure adopted for appointing the guardian,

Here no procedural irregularity as such is alleged, but it is said that the father should have been appointed and not the grandfather. Even ignoring the fact that a reason has been given for the choice of the grandfather, on the findings of the Courts below, there has been effective representation of the minor in the suit and there has been no omission on the part of the guardian that has prejudiced the interests of the minor in the present suit. In Rarichan v. Manakkal Raman, : AIR1923Mad553 , while a contention was urged that a guardian appointed by a competent authority under the Guardians and Wards Act, had been improperly superseded and a Court guardian appointed without recording proper reasons under Order 32, Rule 4, clause (2), it was observed at p. 519 (of Mad LJ) = (at p. 555 of AIR):

'Now in the first place as I have already said it is not very clear that he was so appointed (appointed by Competent Authority) plaintiff's' own case being that he was not so appointed. But even if we take it that he had been so appointed, the failure to record reasons under Rule 4, Clause (2), is only an irregularity in my opinion and will not by itself vitiate the decree if the minor is in fact properly represented by a guardian appointee by Court.'

'It follows that the view of the Courts below that the plaintiff was properly represented in the suit, O.S, No. 386 of 1953, on the file of the Sub-Court, Coimbatore, is correct.

9. In the result, the second appeal fails and is dismissed with costs.


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