Ray, C.J. -
(1.) This is a plff's. second appeal in a suit for setting aside an ex parte decree & the sale held thereunder on circumstances stated briefly herein below:
(2.) The plff. is one of the two sons of Fanchu Patra. Panchu's other son is deft. 2. After the death of Panchu while the plff. & deft. 2 were living jointly (as concurrently found by the Courts below) on 2-3-1944, deft. 2 borrowed a sum of Rs. 200/- from deft. 1. The latter instituted a S. C. C. Suit No. 130 of 1945, in the Court, of the 1st Additional Munsiff of Cuttack against the plff. & deft. 2. In the S. C. C. suit plff. was deft. 2 & deft. 2 of this suit was deft. 1. The plff. was minor then & is a minor even now; in the present suit he has been represented by his mother as next friend. Deft. 2 is his step brother being Panchu's son by his predeceased wife. As required under O. 32, R. 3, it was necessary that the procedure for service of notice about the proposed guardian of the minor should have been followed in full but allegedly it was admitted that no notice was taken to the mother, the minor's natural guardian, but notice had been taken to the minor proposing deft. 1 of the suit, his elder brother, to be his guardian. The minor, however, was not living with him & as the peon's report says he was living in his maternal uncle's house. This defect, in the service report, was overlooked & an order was recorded that the summons & notice had been duly served. On the date fixed for appearance of the deft. 1, the proposed guardian appeared and filed a petition praying for adjournment in order to enable him to collect papers for the purpose of enabling him to file written statement. In that petition he expressed his willingness to act as his younger brother's guardian 'ad litem.' Since after that he did not make any further appearance in the suit which was heard ex parte. The decree was put into execution and at the stage of execution an outsider claiming to be the purchaser of a part of the family property appertaining to the share of deft. 2 (of that suit) filed a claim case and succeeded. The rest of the property including homestead & the house of the family have all been sold for a consideration of Rs. 100/-. It is this sale by which the plff. is aggrieved & wants to have it set aside. It may be noted here that while the homestead was under sale deft. 2 had filed an application under Section 60, C. P. C., for its release on the ground that it was agriculturist homestead. This petition met with failure.
(3.) I must observe, at the outset, that none of the Courts below have been careful enough to forcuss their attention on the essential points at issue & on the relevant evidence appearing on record. Both the Courts below have assumed that deft. I has been rightly appointed as a guardian by the Court. Besides that there is no formal order of appointment, the following defects are very prominent in the record: (i) No notice was issued to the natural guardian, namely, the mother. The Courts below are probably under the impression that in a case of Mitakshara joint family it is the Karta of the family who becomes the natural guardian of the minor. Assume that their labouring under that impression is wholly wrong, I will, in this respect, refer to paras. 230 & 231 of Mayne's Hindu Law, Edn, 10, edited by S. Srinivas Iyengar. In para. 230, it is said that even though under the Guardians & Wards Act no guardian of the property of a minor can be appointed where the minor is a member of an undivided Mitakshara joint family, if the minor is without natural guardian of his person, notwithstanding the Karta, a guardian of the person can be appointed by the Court. The passage reads:
"A guardian of the person of a minor member of an undivided Mitakshara family may however be appointed by the Court." The next para, deals with natural guardianship, and it says: "Of these, the father, & next to him the mother, is his natural guardian; any other relative must derive his authority from the Courts." In another portion of the self-same para, the learned author says;
"In an undivided family governed by Mitakshara law, the management of the whole property, including the minor's share, would be vested not in the mother, but in the eldest male. It would be otherwise where the family was divided or where the minor has separate property. 'But this would not interfere with her right to custody of the child itself." Now turning to Order 32, Rule 3, I find in Sub-rule (4) of the Rule:
"No order shall be made on any application under this rule except upon notice to the minor & to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian, upon noticem to the father or other natural guardian of the minor, or, where there is no father or other natural guardian, to the person is whose care the minor is, & after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule." Here the words "natural guardian" considered in the background of what follows, namely, in the absence of a natural guardian notice would go to the person in whose care the minor is, must mean the person either the father or the mother, if alive. If it was intended that in the case of a minor-deft, being a member to the joint Mitakshara family, the Karta would be the natural guardian to the exclusion of the father or mother, there should have been provision for serving such manager with this notice instead of notice to the natural guardian. So in my judgment, omission of service of notice on the mother was a serious defect. I would also hold that there was no service of notice on the minor. Besides, there was nothing on record to show that the proposed guardian had no interest adverse to the minor. In the nature of things, such adverseness of interest ought to have been presumed. A defence different from that of deft. 2 was open to the minor, namely, that he was not bound by the debt. The Courts below seemed to have been satisfied with the circumstances that the loan was incurred by the Karta of the family during the coparcenary. It, however, under the Hindu Law, is not enough. The debt incurred by the manager, if not for the purpose of joint family cannot bind the other members of the family. To take up such a defence would be to contradict himself with regard to his representation to the creditor which representation is not binding on other members of the family without independent proof. Under the circumstances, I would differ from the Courts below & hold that the minor was not duly represented in this suit. Secondly, it is clear that there was gross negligence on his part in not taking up the defence that was open to the minor. The fact that he while intending not to defend the suit would come and say that he was willing to act as a guardian for the minor while, on his own showing there was nothing to act, would smack of collusion between him and the plff. In the plaint the interest that was claimed was in excess of what is sanctioned by the Money Lenders Act. That was an obvious defence open in the case & would have succeeded without any effort. Besides, when he entered into a private sale after the passing of the decree he confined it into, his own share. In the circumstances in which the sale took place, I am surprised to find that the claim under Order 21, Rule 58 would succeed except for a collusion between the D.H. & the deft. 2., to save as much of the property as he can possibly do for his own sake. Under the circumstances, I would hold that there was gross negligence on the part of the minor in case it is assumed that he was rightly represented through deft. 2. Under the circumstances, the plff. would be entitled to succeed but that would not give him any immediate benefit instead of relegating him to a position in which he should have been had he been represented by a proper guardian, for cancellation of the sale and setting aside off the ex parte decree will reopen the S. C. C. suit when the plff. & the deft, will have to relitigate the whole matter afresh. In such circumstances, the learned Counsel of both parties were well advised to settle up the dispute as between themselves in the following manner, namely, that the sale to the extent of half the properties sold (after all owing private parties' claim under Order 21, Rule 58) which represents the minor's share in it will stand set aside & the minor shall be entitled to get possession thereof on the footing that his interest in the property sold was unlettered by the sale & the delivery of possession. In case the deft. 1 does not surrender possession amicably, the plff. shall be entitled to recover possession through Court. The sale with regard to the rest of the properties which it is made clear in this judgment represents interest of deft. 2 shall hold good. In such circum stances, I decline to set aside the ex parte decree. & the sale as a whole. This compromise in my judgment is for the benefit of the minor which I order should be recorded & the decree should be passed accordingly. It is also agreed that each party should bear his own costs throughout.;