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Profulla Kumar Sen Gupta and anr. Vs. Behari Lal Sen Gupta and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1936Cal247
AppellantProfulla Kumar Sen Gupta and anr.
RespondentBehari Lal Sen Gupta and ors.
Cases Referred and Mfnshi Munnu Lal v. Ghulam Abbas
Excerpt:
- .....of the same. the suit was instituted against the two appellants plaintiffs, who were described as minors represented by their mother as their natural guardian and also against their uncle defendant 7 who 'was living in joint mess with them. a summons was served upon the mother of the two plaintiffs. the mother did not appear to defend the suit. the suit however was strenuously defended by the plaintiffs' uncle, defendant 7. the trial court decreed the suit. defendant 7 made an appeal and the appeal being decided against him made a second appeal to the high court. the decree of the trial court was passed on 11th august 1930 and the present suit was instituted on 16th september 1932. the trial court found that plaintiff 2 was in fact a major when the suit was instituted, and as the.....
Judgment:

M.C. Ghose, J.

1. This is an appeal by two plaintiffs in a suit to set aside an ex parte decree. The facts are that the principal defendants brought a suit on 31st July 1929 for declaration of their right to the western boundary of a certain tank and for confirmation of possession of the same. The suit was instituted against the two appellants plaintiffs, who were described as minors represented by their mother as their natural guardian and also against their uncle defendant 7 who 'was living in joint mess with them. A summons was served upon the mother of the two plaintiffs. The mother did not appear to defend the suit. The suit however was strenuously defended by the plaintiffs' uncle, defendant 7. The trial Court decreed the suit. Defendant 7 made an appeal and the appeal being decided against him made a second appeal to the High Court. The decree of the trial Court was passed on 11th August 1930 and the present suit was instituted on 16th September 1932. The trial Court found that plaintiff 2 was in fact a major when the suit was instituted, and as the summons was served upon him and he did not defend the suit he cannot claim to sot aside the decree. As regards plaintiff 1 the trial Court concluded that he was a minor though the evidence was somewhat doubtful whether he had in fact attained majority and declared that the decree was infructuous against him. In appeal it was held that plaintiff 2 was a major and that plaintiff 1 had not attained majority at the date of the suit. The Court of appeal below however considered in the circumstances of the case that plaintiff I was substantially represented; by his uncle, defendant 7, and the nature of the case shows that plaintiff I was not prejudiced in any manner in the defence of the suit. On that ground the Court dismissed the suit against .plaintiff 1.

2. In appeal the only question urged is whether the Court of appeal below was correct in the circumstances to hold that the decree was binding against plaintiff 1. It is urged, on the other side, that the parties are neighbours and the property in dispute is the bank of a tank valued at Rs. 45 only, that there was a previous dispute between the parties and it was. decided in 1917 on a compromise, but that afterwards the defendants again trespassed on the land and dispossessed the other party who were forced in 1929 to institute the suit in question, that as the plaintiffs had lost their father, their mother was their natural guardian and their adult uncle defendant 7 who lived in joint mess with them was their de facto protector. Defendant 7 himself defended the suit strenuously up to the High Court. When he had failed then the present plaintiffs came forward to set aside the decree on the ground that they were minors. One of them, as stated above, was found to be a major. Numerous cases were cited on both sides. For the appellants reliance is placed on Surendra Nath Bose v. Aghore Nath Bose 1921 Cal 534, Umapati Samanta v. Masietulla 1923 Cal 692, and Makshud Mandal v. Khedu Mandal 1929 Cal 669. In these cases it was held that when the minor defendant was not represented strictly according to law the suit was infructuous as against him. On the other side reliance is placed on three judgments of their Lordships of the Privy Council, namely Hari Saran Moitra v. Bhubanneswarl Debi (1888) 16 Cal 40 Mt. Bibi Walian v. Banke Behari Pershad, (1903) 30 Cal 1021 and Mfnshi Munnu Lal v. Ghulam Abbas (1910) 32 All 287. In these cases their Lordships held that it is important that Courts should follow strictly the rule laid down for representation of minors, but it is quite another thing to say that a defect in following the rules is necessarily fatal to the proceedings.

3. In this case the plaintiffs were represented by their natural guardian, namely their surviving parent, the mother. Notice to the minors and their mother was duly served. The mother did not choose to defend the suit. It is clear that the defence was adequately conducted by the minors' uncle, defendant 7. The learned District Judge has found clearly that the defect in the representation of the minors did not in fact affect the merits of the case. In this position the learned Judge was right to hold that the minor plaintiff is not entitled to set aside the decree. The appeal is dismissed with costs. Leave to appeal under Section 15 of the Letters Patent is refused.


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