SANKAR PATRA Vs. DEBIDAYAL SINGH

JUDGEMENT

(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: