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Karim Khan Vs. Salamuddi and anr. and Jelakha Bibi - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in13Ind.Cas.594
AppellantKarim Khan
RespondentSalamuddi and anr. and Jelakha Bibi
Cases ReferredMidnipur Zamindari Co. Limited v. Gobinda Mahto
Excerpt:
guardians and wards act (viii of 1890), section 29, 30 - sale by guardian without permission of judge--benefit of minor--transaction-honest--whether sale liable to be set aside--civil procedure code (act xiv of 1882), section 440--next friend other than certificated guardian--leave of court--notice to guardian--defective service of notice--unimportant irregularity. - .....plaintiff no. 2 is still a minor and the defendant no. 2 is still tie certified guardian and it is argued that the suit should fail under section 440 of the old civil procedure code.5. the first court, however, gave permission to the plaintiff no. 1 to appear for the plaintiff no. 2. the order runs as follows: 'the defendant no. 2 is the certificated guardian of the plaintiffs nos. 1 and 2. the plaintiff no 1 has become major and wants to act as the next friend of the plaintiff no. 2 on the ground that the defendant no. 2 has acted adversely to the interest of the minor. i grant his prayer.'6. it appears that notice of the application of the plaintiff no. 1 to appear for the plaintiff no. 2 was not served on the defendant no. 2 till very much later, if indeed it was served at all. on.....
Judgment:

Coxe, J.

1. I am concerned in this appeal with the interests of the plaintiffs Nos. 1 and 2. When they were minors, the defendant No. 2 was their certified guardian and she sold the property in suit, to the defendant No. 1 without the permission of the District Judge. The defendant No. 2 is the mother of the plaintiffs Nos. 1 and 2 and the defendant No. 1 is the brother of their father. The plaintiffs have now sued to have this sale set aside and for recovery of possession, and this has been decreed by the lower Appellate Court.

2. The defendant No. 1 appeals. On his behalf it has been argued that the sale benefited the minors and was a perfectly honest transaction and that the Court should have held that it was binding on them.

3. It is perfectly clear, however, that the sale contravened the provisions of Section 29 of the Guardians and Wards Act, 1890, and is, therefore, voidable under Section 30. The terms of the Section are perfectly simple and must necessarily be observed by the Courts.

4. Secondly, it is argued that the plaintiff No. 1 ought rot to have teen allowed to appear for the plaintiff J. o. 2. The plaintiff No. 2 is still a minor and the defendant No. 2 is still tie certified guardian and it is argued that the suit should fail under Section 440 of the old Civil Procedure Code.

5. The first Court, however, gave permission to the plaintiff No. 1 to appear for the plaintiff No. 2. The order runs as follows: 'The defendant No. 2 is the certificated guardian of the plaintiffs Nos. 1 and 2. The plaintiff No 1 has become major and wants to act as the next friend of the plaintiff No. 2 on the ground that the defendant No. 2 has acted adversely to the interest of the minor. I grant his prayer.'

6. It appears that notice of the application of the plaintiff No. 1 to appear for the plaintiff No. 2 was not served on the defendant No. 2 till very much later, if indeed it was served at all. On this point it's difficult: to reconcile the findings of the Munsif. In the order-sheet of the case he says that he cannot accept a certain petition as legal proof of the service of notice as proved under Section 410; but, from his judgment, it would seem that the legal proof of service was furnished when the arguments in the case had been heard. It is not disputed, however, that the defendant No. 2 was a party to the suit, nor is it alleged that she was unaware of the proceedings.

7. From Order No. 16 of the Munsif, it would appear that the defendant No. 2 contested a certain affidavit of the plaintiffs on the ground that the defendant No. 2 had left the station for home on the preceding day when the case was still going on. The defendant No. 2 was, therefore, clearly aware of the, suit and it is equally clear that she never objected to the representation of the plaintiff No. 2 by plaintiff No. 1, nor is there the least reason to suppose that she was unaware that she was acting on the 2nd plaintiff's behalf. That being so, and formal permission having been given, rightly or wrongly, by the Munsif to the plaintiff No. 1 to act for the plaintiff No. 2, I do not think it will be possible hereafter for the plaintiff No, 2 to contend that he was not properly represented, or to attack the decision in this case on that ground. The representation of the plaintiff No. 2, therefore, seems, in my opinion, to have been sufficient and if the service of formal notice on the defendant No. 2 was defective it can only be regarded, in the circumstances of the present case, as an unimportant irregularity. 1 may refer in this connection to the case of Midnipur Zamindari Co. Limited v. Gobinda Mahto 8 C.L.J. 31.

8. Thirdly, it has been argued that under Section 64 of the Contract Act, more should be given to the defendants than has been allowed by the learned District Judge. The sum of Ks. 100 was allowed, as that, was the sum received by the guardian of the minors. The learned Pleader for the appellant has been unable to show me what benefit, within the meaning of Section 64 other than this sum of Rs. 100, has been received by the plaintiffs from the defendant No. 1 the return of which can possibly be claimed under this section.

9. Moreover, considering the relationship of the parties, the defendant No. 1 cannot have been unaware that the defendant No. 2 was the certified guardian and, that being so he is certainly nit entitled to any special indulgence, considering that the provisions of the Guardians and Wards Act were deliberately disregarded.

10. The points taken in the appeal, in my opinion, fail and the appeal must be dismissed with costs.


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