D.N.Roy, J. - (1.) This is a defendants' appeal arising out of a judgment dated 22-11-1946 passed by the learned Addl. Civil Judge of Banaras by which a decree was granted to the plaintiffs-respondents setting aside the final decree dated 15-1-1944 passed in partition suit No. 466 of 1939 of the Court of the Munsif Haveli, Banaras, on the ground of gross negligence on the part of the guardian ad litem of the minor plaintiffs.. The parties to the suit are members of the same family. Defendants Nos. 1 and 2, namely, Murli Manohar and Govind Lal, instituted the suit No. 466 of 1939 against the present plaintiffs and defendants Nos. 3 to 15 for partition of the property specified in Schedule A of the present plaint which admittedly was joint ancestral property of the parties. There was another property which was specified in Schedule B of the present plaint. This property was not included by the plaintiffs in the earlier suit aforesaid. In that case natural guardians of the present plaintiffs who were then minors refused to act as their guardian-ad-litem and Sri Chhail Beharilal Verma a pleader of the Court was appointed their guardian-ad-litem. The defendants pleaded in that suit that the property specified in Schedule B was also joint ancestral property and should be brought into hotch pot for purposes of partition. The trial Court framed issue No. 6 on that point which was to the following effect: "Whether the property specified in the written statement and under issue is property of the joint family of the parties? If so, how does the failure on the part of the plaintiffs to leave that property out of suit affect the suit?"
(2.) The trial Court found on that issue that this property was joint family property and was liable to be partitioned. The trial Court therefore by judgment and preliminary decree dated 6-12-1940 directed that a preliminary decree for partition of l/6th share of the plaintiffs and of an equal share of the defendants Nos. 5 and 6 in the property detailed at the foot of the plaint (with the exception of houses Nos. 241, 251, 243, 243/1 and 244) find also in the six shops situate in Mauza Sheodaspur be passed. Certain further directions were given under the preliminary decree with which we are not concerned. It was the 'property in Sheodaspur which was the subject of contention under issue No. 6 aforesaid. As against the judgment and decree of 6-12-1940 two appeals were preferred by different parties before the District Judge of Banaras. Both the appeals were dismissed by the Addl. Civil Judge on 21-9-1940 and the decree of the trial Court was affirmed. On 31-1-1943 Murli Manohar and Covind Lal applied in the Court of the Munsif, Havali tu get a final decree prepared in pursuance of, and in accordance with, the preliminary decree. In that proceeding no notice was issued to the present plaintiffs or to the other defendants Nos. 3 to 15. The Amin was called upon to prepare Kuras for the preparation of the final decree. The Amin submitted a report on 9-11-1943. Certain objections were taken against it by the then plaintiffs and by defendants Nos. 5 and 6 but some of them withdrew their objections subsequently. Defendants 1 and 3 also filed an objection against the Amin's report. Their objection was twofold, namely that the Amin had overvalued the property described as bungalow No. 8 within the cantonment of Banaras by valuing the site as a whole which belonged to the Government and in which the parties had no proprietary title; and, secondly, that these shops stood over plot No. 1 of Sheodaspur and plot No. 1 had already been partitioned by the revenue Court. Learned Munsif by his order dated 18-11-1944 repelled the two objections stated above holding that the property had not been overvalued and that the shops at Sheodaspur could not be partitioned in the present suit because they stood over land which had already been partitioned by the revenue Court. The learned Munsif was of the view that what was contained in the original judgment of the Court and in the preliminary decree was a direction to the effect that "these shops could be partitioned if it was found that these shops were standing in the abadi land and not in plot No, 1 of Sheodaspur." The Munsif therefore by his final decree dated 15-l-1944 affirmed the plan and report prepared by the Amin with certain modifications in regard to the amount which was to be paid to defendants Nos. 5 and 6. After the decree aforesaid was passed, two applications were presented before the Munsif, one by the present plaintiffs-minors and the other by Misrilal the father of the present plaintiffs Nos. 5 and 6 for the setting aside of the final decree dated 15-1-1944 and for restoring the case to file on its original number and for the rehearing of the Amin's report after allowing these parties the opportunity to raise objections against the same. Their contention was that they had no notice of the proceedings of final partition, that the Amin had prepared the lots behind the back of the parties without notice to them, that they had no opportunity to file objections and that the bungalow in Banaras Cantonment was overvalued and the shops situate in Sheodaspur had been completely left out by him. These two applications were opposed by the then plaintiffs. The applications were dismissed on 4-11-1944 on the ground that the guardian-ad-litem of the minor defendants and the other defendants had full knowledge of the proceedings for preparation of the final decree. Against the order of 4-11-1944 the guardian ad litem of defendants Nos. 8, 9, 10, 11, 12, 15, 16 and 17 who are now the present plaintiffs did not prefer an appeal. An appeal was however preferred by Misri Lal against that order before the District Judge of Banaras. The District Judge dismissed the appeal on 1-2-1945 holding that the orders were passed by the lower Court after informing the parties' counsel and giving them full opportunity to be heard The minors having failed to obtain proper redress in the proceedings aforesaid instituted the present suit on 26-2-1946 by which they assailed the final decree on the ground of gross negligence on the part of their guardian in the suit. The negligence was said to exist in respect of two matters, namely, firstly, that six of the shops situate in village Sheodaspur which were covered by the preliminary decree as property fit for partition were not included in the final decree and the guardian raised no objection about it; and, secondly, that the land over which bungalow No. 8 situate in Cantonment Banaras stood was wrongly valued. The decree was assailed on two other grounds which were stated in grounds Nos. C and D; but these grounds were abandoned at the trial by the statement of the pleader of the plaintiffs.
(3.) In paragraphs 10 and 11 of the present plaint the following averments were made : "10. Babu Chhail Behari Guardian of the plaintiffs had not filed any objection in Court in respect of the facts mentioned above nor did he prefer any appeal against the order passed by the Court of Munsif Havali, Banaras, or the decree : 11. The report submitted by the Amin and the proceedings relating to the partition are prejudicial to the interest of the plaintiffs. But the guardian aforesaid did not bring them to the notice of the Court and did not safeguard the rights of plaintiffs while looking after the said case, rather committed a serious negligence while looking after the case. For this reason the final decree passed by the Court of Munsif, Havali, Banaras on 15-1-1944 is invalid and ineffectual against the rights of the plaintiffs and not binding." The present suit was resisted by Murli Manohar, Govind Lal, Bhola Nath and Kashi Nath defendants Nos. 1, 2, 7 and 8. They contended that Babu Chhail Behari Lal the guardian appointed by the Court protected the interests of the minors to the fullest extent and that the charges of gross negligence were absolutely unfounded. They further contended that as the report of the Amin was quite proper Babu Chhail Behari Lal did not take any objection in respect thereof and that the other defendants raised objections in order to cause delay in the preparation of the final decree. It was not contended by these defendants in their written statement that the objection which was raised by the other defendants against the report of the Amin was an objection which, in the circumstances of the case, should be treated as an objection on behalf of the minors as well and that since that objection was prosecuted by the other defendants, the minor defendants must be deemed to have been effectively represented by them, or that, at any rate, their interests were sufficiently safeguarded and looked after by them when the objection was heard and dismissed. We have seen the terms of the preliminary decree and we have also perused the order dated 15-1-1944 passed by the Munsif when the final decree was passed. The preliminary decree dated 6-12-1940 leaves no manner of doubt that the six shops situate in Sheodaspur were brought into the notch pot and they were directed to be partitioned along with the other property specified in the plaint. The judgment of the Munsif passed on 6-12-1940 unequivocally found that the said shops are joint family property and had not been the subject of partition till then and were fit to be partitioned in the present suit. The learned Munsif fell into an error at the stage of the final decree when he acted upon the report of the Amin by which the Amin stated that these shops stood over plot No. 1 and not in the abadi and that plot No. 1 had already been partitioned. It was not open to the learned Munsif to go behind the terms of the preliminary decree. The learned Munsif was wrong in construing the preliminary decree as a conditional decree. In the judgment of the Munsif dated 15-1-1944 the learned Munsif observed: "Defendants 1 and 4 themselves brought these shops into the controversy and the Court held that these shops could be partitioned if it was found that these shops were in the abadi and not in plot No. 1 of Sheodaspur.";