Venkatasubba Rao, J.
1. The decree of the lower Court directs that the suit lauds shall be partitioned into four equal shares and one of them shall be allotted and delivered to the plaintiffs. The decree also gives the latter mesne profits. The 1st, 2nd and 11th defendants hare filed this appeal.
2. The facts relevant for determining the points that arise in the appeal lie within a very narrow compass. I find it, however, necessary and useful, on account of the judgment of the lower Court and the arguments advanced, to refer to and state the facts of the case fully.
3. One Govindappa had two sons, defendants Nos. 12 and 13. The plaintiff is the son of the 12th defendant. These formed members of a joint Hindu family and owned valuable land of the extent of about 340 acres. They executed a simple mortgage (Ex. B of 19th February, 1898) in favour of defendants Nos. 1 and 2 and one Ramanathan Chetty the deceased father of the 4th defendant for securing re-payment of Rs. 60,000. Previous to this mortgage a lease had been executed in favour of the 6th defendant for a period of five years (Ex. A, 28th April, 1897). On 31st July, 1899, Annamalai Chetti, the agent of Ramanathan Chetty aforesaid, obtained a transfer of the lessor's interest in the lease (Ex. C). On 4th May, 1900. Ramanathan Chetty and the 1st defendant obtained an assignment of the lessee's (8th defendant) interest (Ex, F), The effect of these two assignments was to enable two of the mortgagees, the 1st defendant and Ramahathan Chetty, to get possession of the properties mortgaged to them by way of simple mortgage. 1 may mention in this connection that the 2nd defendant is a High Court, Vakil and that the 1st defendant is his clerk. The next step taken by the mortgagees was to file a suit on 24th September, 1900, in the Negapatam Sub-Court (O.S. No. 38 of 1900) for the recovery of the amount due under Ex. B. It is sufficient to say that on 19th June, 1901, a decree was passed in this suit.
4. Alongside of these events there was another set of transactions that I must now refer to. On 24th August, 1898, Govindappa and one of his sons, the 13th defendant, executed in favour of Ramanathan Chetty and two others a promissory-note for Rs. 200. A suit was filed (S.C. No. 2632 of 1899) in the Kumbakonam Sub-Court and a decree was obtained by the payees under the note against Govindappa, his sons defendants Nos, 12 and 13, and his grandson, the present plaintiff. The decree is Ex. D dated 11th December, 1899. It is worthy of note that the present 2nd defendant acted as the Vakil for the plaintiffs in that suit. The present plaintiff being then a minor, an officer of the Court was appointed as his guardian ad litem in the suit (Ex. D-1). The decree-holders got the decree transferred for execution on 25th January, 1900, to the District Munsif's Court, Tiruvalur, then attached the judgment-debtor's equity of redemption in 33 items (suit items) out of 34 items mortgaged under Ex. B, brought the said equity of redemption to sale and in the Court-auction it was purchased by the 9th defendant, another clerk of the Vakil, the 2nd defendant, for Rs. 287-12-0. The date of this sale is 9th July, 1901. It is admitted that the 9th defendant obtained this sale benami for defendants Nos. 1 and 2.
5. It is these transactions that took place between 1899 and 1901 that are now impeached by the plaintiff. The suit though filed in 1916 has been held to be in time as the plaintiff had only recently attained majority. The lower Court set aside the sale of the 9th July, 1901, on the ground inter alia that it is vitiated by fraud.
6. [After considering the evidence on the point his Lordship held that the finding of fraud cannot be supported.]
7. The facts that have a bearing on the real point to be decided in this appeal, I shall now proceed to state. When the decree-holders applied (as I have said) on 18th March, 1901, for sale of the property, the executing Court made the following order: 'For sale of attached properties. Notice to 15th April.' Notice was taken out, but none of the defendants was served. The Court guardian of the present plaintiff (the 3rd defendant in that suit) declined to accept service. The grounds of his refusal were, that he was an officer of the Kumbakonam Court, that he was appointed guardian only for the suit and as execution was proceeding in a different Court, another guardian should be appointed in his place for the minor. The return of the process-server and the endorsement of the Nazir are dated 15th April, 1921. When the matter was taken up on that date by the Court, it passed the following order: 'Not served. Fresh notice to 30th instant.' We must take it that the words 'not served' were intended to refer to all the defendants and that fresh notice was directed to be taken out as against all of them including the minor 3rd defendant (the present plaintiff). It is difficult to say how the Court disposed of the objection of the Court guardian. From what appears on the record it passed no orders in that respect, with the result that the same person continued to remain on the record as the minor's guardian. When in the case of the process-server's endorsement the Court directed fresh notice to the minor defendant, it means and implies that the Court did not feel called upon to remove the guardian on the record and appoint another in his stead. This view receives support from the fact that in subsequent proceedings the minor is described as being represented by the same Court guardian. (See Exs. II, I-A and 4). For the plaintiff it is contended that subsequent to 15th April, 1901, the proceedings were bad, because he was not represented on the record at all. It is urged that when the guardian ad litem declines to act, he automatically ceases to hold the office of guardian and from that moment the minor must be treated as unrepresented. In my opinion, this is the only contention that can be urged in the appeal having regard to the pleadings and the issues. Before dealing with this point, however, I must refer to another contention that has been raised. On the 30th of April the Court made the following order: 'Served. Absent, Proclaim and sell. Sale 8th July.' It is urged that the minor's guardian was not served at all and that the note of the Judge 'served' is a mistake. Parts of the record were produced at the trial and they show that the adult defendants were served. There was no paper forthcoming to show that the minor was served. We are asked to infer from these facts that the Court's attention was not directed to the existence of the minor and that when it made a note 'served' it had in mind only the major defendants. It seems to me that this is not a question raised in the suit and that we cannot properly go into it. The plaintiff's allegations in the plaint in this respect are:
(1) The Court guardian declined to act in the execution proceedings.
(2) That thereupon the Tiruvalur Munsif's Court ordered the appointment of a fresh guardian.
(3) The decree-holders, however, wilfully omitted to get a fresh guardian appointed.
(4) Irrespective of any order of the Court it was the duty of the decree-holders to have the minor properly represented on the record; and
(5) Omission in that respect renders the sale null and void (see para. 3 (p) of the plaint).
8. The complaint thus is that no steps were taken to get a fresh guardian appointed. It is not suggested that notice was not properly served on the guardian on the record. The defect pleaded being, want of a fresh appointment, the allegation implies that the proceedings were not defective in regard to the service of the guardian on the record. The issue framed accordingly reads thus:
Whether there has been no representation, at least no proper representation of the minor in execution proceedings in S.C. No. 2632 of 1899 in the Tiruvalur District Munsif's Court.
9. This issue relates to representation only and raised no point regarding service of the notice. There is a presumption in favour of the regularity of the proceedings of a Court, but the plaintiff asks us to say that the Court made a wrong note that the parties were served when one of them was not and we are asked to say this, after the lapse of about 20 years front the date of the order. It is unsafe to surmise or speculate in a matter like this. When the defendants had no notice that they were to meet such a case, the Court would not be justified in recording a finding in the absence of an averment and in the absence of an issue. In this case there can be no possible excuse for the plaintiff asking us to read more into the plaint than is actually alleged in it; for when he applied to sue in forma pauperis, the High Court by its judgment (dated 14th October, 1919) directed rum to amend his plaint in such a manner as to make his allegations clear on the basis of which he contended that the sale did not affect his interest. The plaint, as I have shown, does not contain any allegation that the sale is bad on account of non-service of notice on his guardian on the record.
10. [A] Having thus disposed of matters which, in my opinion, are irrelevant in this appeal, I shall now deal with the question of law raised, namely, whether when a guardian ad litem refuses to act, he by force of his own refusal ceases to be the guardian and the minor thereafter is unrepresented in the proceedings.
11. The provisions of law applicable are Sections 458 and 459 of the Civil Procedure Code, 1882. They provide that if a guardian of a minor defendant fails to do his duty or if other sufficient cause is made to appear, the Court may remove him and if he is removed, the Court shall appoint a new guardian in his place. These sections do not give any countenance to the idea that a guardian duly appointed, by his declining to act as such, automatically ceases to be a guardian. The provision in the present Code is even more explicit. Order XXXII, Rule 11, reads thus: 'Where the guardian for the suit desires to retire or does not do his duty, or where other sufficient ground is made to appear, the Court may permit such guardian to retire or may remove him, and may make such order as to costs as it thinks fit.'
12. The only difference between the two provisions is this, that whereas the old Code does not expressly refer to the case of a guardian desiring to retire, the present Code contains an express provision in that respect. It gays that if he desires to retire, the Court may permit him to do so. If the plaintiffs argument is correct, it is unnecessary for the Court to remove a guardian, whereas Section 459 contemplates such removal. If a mere statement of a guardian that he declines to act results in an automatic removal, what is the effect of the section which says that the Court may remove him. Is the plaintiff in a case to judge for himself whether a guardian properly appointed has ceased to be such? Taking Section 458, it may with equal reason be contended, that when a guardian fails to do his duty, in that case also, by force of his own default he ceases to be a guardian. Is a plaintiff in an action to decide in each case at his peril, whether on the facts and in law, a guardian does or does not continue to act? This falls within the functions of the Court and is not left to be decided by one of the parties to the action.
13. In C.M. As. No. 188 and 224 of 1920, Spencer and Ramesam, JJ., took the same view. They observe:'The 3rd defendant's guardian applied under Order XXXIII, Rule 11, of the Civil Procedure Code, to retire on the ground that the minor had attained majority, but his discharge was not complete until the permission of the Court, which is part of the procedure prescribed by Rule 11, was given. The sale was closed on the 4th of August, 1919, and on the same day the Court passed orders on the guardian's application refusing to permit him to retire. The result was that he continued to represent the 3rd defendant and the execution proceedings were not affected by any irregularity in the representation of the parties.'
14. In Narender Singh v. Chatrapal Singh : AIR1926All437 a Bench of the Allahabad High Court was of the same opinion. The learned Judges in that case held that a guardian ad litem does not cease to be a guardian merely because he expresses a desire to retire from his office and that it is open to the Court to permit, or to refuse to permit him to retire.
15. In the present case the Court guardian states thus: 'As I was appointed guardian of the minor during the trial of the suit as an officer of this Court and as the decree has been sent to that Court for execution where proceedings are now being taken, I beg that another guardian may be appointed for the minor.'
16. This is a mere suggestion to the Court and there is nothing in it to show that if the Court did not permit him to retire, he would decline to act. It is not unlikely that the Court thought that the reason given was not a sufficient reason to permit the guardian to retire. There is thus absolutely no justification for holding that after the 15th April, 1901, the plaintiff must be treated as having been unrepresented in the proceedings. [A].
16. Krishna Prasad Singh v. Moti Chand : (1913)15BOMLR515 relied on by the plaintiff's learned Vakil is clearly distinguishable. In that case, it was held that the mother of the infant was competent to make an application on his behalf to set aside a sale when a Court guardian duly appointed who was on the record, refused to continue to act in that capacity. It is one thing to say that when the minor's interests are not being safeguarded, somebody other than the guardian on the record can take steps to protect those interests; but it is quite a different thing to hold that an order of Court made in the presence of a guardian not duly removed is invalid and of no effect, merely on the ground that the guardian had previously intimated that he was unwilling to act. This objection of the plaintiff, therefore, fails.
17. In the result, the appeal is allowed and the suit is dismissed.
18. As regards costs, I do not think in the circumstances that I can allow the 1st and the 2nd defendants any costs. The order of the lower Court directing the 1st and the 2nd defendants to pay the plaintiff his costs of the suit is not disturbed. The suit dismissed with costs throughout of the 11th defendant (3rd appellant). Under Order XXXIII, Rule 11, I direct that the plaintiff shall pay Court-fees payable to the Government on the plaint.
19. I agree.
20. The memorandum of objections is dismissed but without costs.