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Bhubaneswar Baidya and ors. Vs. Rabi Charan Baidya and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1948Cal149
AppellantBhubaneswar Baidya and ors.
RespondentRabi Charan Baidya and ors.
Excerpt:
- .....transferees as majors, but according to the defendants one of the transferees, sidheswar, was a minor. no guardian was appointed and the case proceeded to its conclusion before the learned munsif. the munsif held that in the circumstances there was no right to preempt; further that sidheswar was a minor and that the proceedings against him in any event would be null and void.2. the plaintiff appealed to the lower appellate court and that court came to the conclusion that the plaintiff had the right to pre-empt in the circumstances of the case. the court further held that if sidheswar was a major then the matter was ended, but if ho was a minor then the proceedings were to all intents and purposes null and void the lower appellate court pointed out that the learned munsif should have.....
Judgment:
ORDER

Harries, C.J.

1. This is a petition for revision of an order of a lower appellate Court remanding the case to the Court of a learned Munsif. An application was made in the Court of the Munsif for pre-emption of a certain sale. The plaintiff impleaded all the transferees as majors, but according to the defendants one of the transferees, Sidheswar, was a minor. No guardian was appointed and the case proceeded to its conclusion before the learned Munsif. The Munsif held that in the circumstances there was no right to preempt; further that Sidheswar was a minor and that the proceedings against him in any event would be null and void.

2. The plaintiff appealed to the lower appellate Court and that Court came to the conclusion that the plaintiff had the right to pre-empt in the circumstances of the case. The Court further held that if Sidheswar was a major then the matter was ended, but if ho was a minor then the proceedings were to all intents and purposes null and void The lower appellate Court pointed out that the learned Munsif should have decided the-question of the minority of Sidheswar immediately the question was raised and not at the conclusion of the trial. Where it is alleged that a person before a Court is a minor, the Court must ascertain the position, and if minority is proved, appoint a guardian. This to my. mind is clear from the express provisions of Order 32, Rule 3, Civil P.C. Sub-rule (1) of that rule is in these terms:

Where the defendant is a minor, the Court on being satisfied of the fact of his nrnority, shall appoint a proper person to be guardian for the suit for such minor.

3. The rule is imperative and the-moment it was 'mentioned before the Munsif that Sidheswar might be a minor he had to satisfy himself of that fact and if he was satisfied he was bound to appoint a guardian.

4. The trouble arose by reason of the fact that the plaintiff insisted that Sidheswar was a major because he was so described in the sale deed, whereas the defendants said that he was a minor. In these circumstances the matter ought to have been decided as a preliminary issue before the other issues were gone into. That being so, the lower appellate Court was right in sending this case back to ascertain the position of Sidheswar upon evidence.

5. It is to be observed that if Sidheswar is a major then that concludes the matter, as the judgment of the lower appellate Court would dispose of the case. On the other hand, should it be found that Sidheswar is a minor then the earlier proceedings in the Court of the Munsif and in the lower appellate Court would not be binding upon him and the whole matter would have to be reagitated afresh.

6. For these reasons, I can see no ground for interfering with the order of the lower appellate Court and accordingly this petition fails and is dismissed. The Rule is discharged with costs.


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