- (1.) THIS is a plaintiff's second appeal against the judgment and decree of the Additional Civil judge of Sultanpur dismissing the suit which had been decreed by the trial court.
(2.) THE facts of the case are simple. Sat Narain Lal respondent No. 1 brought a suit in the year 1941 for the partition of some tenancy holding and groves standing thereon, against the appellant and some others who are respondents in this case. He claimed a half share in the land and grove. Tne plaintiff was a minor and is said to have been represented by his elder brother Newal kishore as guardian in that suit. The suit was contested and was ultimately decreed. The unsuccessful party went in appeal and the decree passed by the trial Court was affirmed in appeal. On 23rd March, 1946, the appellant instituted the suit, which has given rise to this appeal, for a declaration that the decree passed in the earlier suit instituted by Sat Narain Lal against him was not binding on him and that it was null and void against him on the ground that he was a minor all along during the pendency of the suit and that there was no properly constituted guardian and further that Newal Kishore, who is said to have acted as guardian acted negligently and did not look to the interest of the minor. The suit was contested by Sat Narain Lal and it was contended on his behalf that the plaintiff appellant had been duly represented by his elder brother Newal Kishore who was appointed guardian and that the guardian did not act negligently. It was also contended that no prejudice had been caused to the plaintiff appellant and that he was not entitled to the declaration asked for. The learned Munsif who tried the case came to the conclusion that there was no proper appointment of a guardian of the plaintiff who was a minor and that the guardian did not contest the suit properly. The defendant Sat Narain Lal then went in appeal and the learned Additional civil Judge who heard the appeal reversed the finding of the trial Court and dismissed the suit. The plaintiff has now come up in second appeal.
(3.) THE first point which has been pressed on behalf of the appellant is that there was no proper appointment of a guardian of the plaintiff who was a minor at the time when the suit was instituted as also during the pendency of the suit. The original record of the suit instituted by Sat narain Lal was, it appears, summoned by the trial Court and the trial Court has observed that there was no proper appointment of a guardian. There is, however, on the record of the present suit copies of the vakalatnama and the written statement filed by Newal Kishore on his own behalf and as guardian of his minor brother Brij Kishore Lal. A perusal of the copy of the vakalatnama shows that Newal Kishore appointed a vakil, along with the other defendants of that suit and in the body of vakalatnama it was mentioned that Newal Kishore made the appointment on his own behalf and as guardian of his minor brother Brij Kishore. In the signatures which are made on this vakalatnama, however, it is not mentioned that he signed the vakalatnama on behalf of his own self and as guardian of the minor. If it is definitely mentioned in the vakalatnama that the appointment was being made by Newal Kishore on his own behalf and on behalf of the minor, it was not necessary for him to describe himself as guardian also in the signatures which he affixed to this vakalatnama. The appointment of a counsel by Newal Kishore would, therefore, be deemed to have been made on his own behalf and on behalf of the minor. The written statement was also filed on behalf of the minor as is mentioned at the bottom of it, but it appears that Newal Kishore did not affix his signatures.;