- (1.) THIS second appeal has been preferred by Sohanlal, who was one of the defendants in the suit, as he has been unsuccessful in both the courts below.
(2.) THE basic facts of the case are not in dispute. Defendants Hastimal, Mangilal brought a suit (No. 365 of sec. 2004) against Mangilal for the realisation of Rs. 874/-, in the court of Munsiff, Rajsamand. Mangilal died soon after and the plaintiffs in that suit made an application that his son Babulal, the present plaintiff, who was less than two years old at that time, may be brought on the record as his legal representative and that his mother Smt. Daya Bai may be appointed his guardian-ad-litem. THE Munsiff thereupon issued notice, Ex. A. 1 in May, 1949, to Babulal, through his mother as guardian, stating that the plaintiffs had applied for (i) making him a party to the suit as the legal representative of Mangilal deceased and (ii) the appointment of Babulal's mother as his guardian-ad-litem because of his minority, and that, if there was any objection, it may be filed on August 10, 1949, in the Munsiff's court. THE notice was served on Smt. Daya Bai and her brother Devilal on June 3, 1949, at village Oda, where the minor and his mother were living with the mother's brother Devilal ever since the death of Mangilal. No one appeared in the Munsiff's court on the appointed date. THE court passed on order (Ex. 1) on August 13, 1949, making Babulal a party to the suit, as the legal representative of his father Mangilal, with his mother Smt. Daya Bai as his guardian-ad-litem. At the same time, it directed the issue of a notice to the newly appointed guardian to file a written statement. Notice Ex. A. 2 was thereupon issued to Smt. Daya Bai fixing August 18, 1950 as the date of the hearing. Its service was effected personally on her on July 31, 1950, but no one appeared in the trial court. An order (Ex. 2) was then made that as the minor's guardian did not appear inspite of service, the case may proceed ex-parte against him. It resulted in an ex-parte decree on August 19, 1950. In the decree-sheet (Ex 4) it was clearly stated that the decree had been passed against the minor under the guardianship of his mother Smt. Daya Bai. THE decree-holders applied for execution and attached the house of Mangilal in village Amet. Notice Ex. A. 3 dated March 20, 1952 was issued under Order, XXI rule 66, Civil Procedure Code to the minor, under the guardianship of his mother, and it was served on her and her brother Devilal on July 19, 1952. No objection was filed and the house was sold on January, 1955. It was purchased by decree-holder Hastimal, through Chunilal defendant No. 3. THEreafter, an objection was filed by Babulal through his mother Smt. Daya Bai under Order XXI, r. 100, Civil Procedure Code, but it was dismissed by order Ex- 3 dated April 8, 1954. Almost an year thereafter, the present suit was filed by Babulal on February 21, 1955, in the Munsiff's court at Rajsamand, with Devilal as his next friend. At that time Babulal was 7 years old. Sohanlal was arrayed as a defendant in the suit for he claimed to be in possession of the suit house. THE suit was based on the pleas that Babulal was not bound by the ex parte decree dated August 19, 1953 because (i) his mother had been appointed his guardian (for the suit) without her consent, and (ii) he was a minor and no one appeared in the trial court to represent him. It was therefore prayed that a declaration may be given that the decree in suit No. 365 of sec. 2004 was void and ineffective against him, that the sale of the house to Hastimal in the execution proceeding was also void and ineffective, that the plaintiff was entitled to possession of the suit house and that he was also entitled to mesne profits for its use and occupation by the defendants. Defendant Chunilal and Roshanlal did not contest the suit, so that it proceeded ex parte against them. Hastimal defendant No. 1, who was the decree-holder and auction purchaser of the house, as well as Sohanlal defendant No. 4 who claimed to be its purchaser denied the claim. According to them the appointment of Smt. Daya Bai as guardian-ad-litem was quite proper and that the plaintiff was estopped from making his claim for possession when he had allowed defendant Sohanlal to make constructions of the value of Rs. 2500/- over the property. The learned Munsiff of Rajsamand held that the decree and the sale were void and ineffective, but that defendant Sohanlal was a bonafide purchaser in good faith and was entitled to recover Rs. 1500/- which he had spent in improving the premises. He therefore passed a decree for the delivery of possession to the plaintiff on payment of Rs. 1500/- to Sohanlal. Alternatively, he ordered that the plaintiff would have the option of selling the house to Sohanlal for Rs. 415/- for which it had been auctioned by the Court. Against that judgment and decree dated September 16, 1957, both Sohanlal and the plaintiff preferred their appeals to the District Court. They were heard by the learned Civil Judge of Udaipur and were decided by a single judgment. He took the view, inter alia, that when Smt. Daya Bai did not appear in the trial court to give consent for her appointment as the minor's guardian, her consent could not have been implied under Order XXXII, rule 4 (3) C. P. C. as it had to be expressly stated. In reaching this conclusion, the learned Civil Judge relied mainly on Raj Kumar Vs. Kishen Lal (l ). He accordingly dismissed Sohan Lal's appeal. On the other point in controversy, he held that an auction purchaser was not entitled to the benefit of sec. 51 of the Transfer of Property Act and that as Sohanlal did not act in good faith in making the constructions in the suit house, he was not entitled to any compensation. He allowed the plaintiff's appeal by directing that he would be entitled to possession without payment of any compensation to Sohanlal who would, however, be at liberty to remove the constructions made by him. It is against that judgment and decree dated May 4, 1959, that this second appeal has been preferred by defendant Sohanlal. As it was realised that the fate of the case depended largely on the questions whether Smt. Daya Bai was lawfully appointed to be the guardian-ad-litem of her minor son Babulal in suit No. 365 of sec. 2004 and represented him in the suit, the learned counsel for the parties have addressed their arguments on these points at considerable length. There can be no doubt that the provisions of Order XXXII, rules 3 and 4 of the Code of Civil Procedure have to be complied with in a case where the defendant is a minor, for they provide the rules of procedure bearing on the appointment of his guardian-ad-litem. As has been mentioned, such an order of appointment of the guardian was actually made by the trial court on August 10, 1949, when Smt. Daya Bai was made the guardian of her minor son Babulal. Babulal was an infant at the time and it so happened that his guardian Smt. Daya Bai did not appear in the court, in pursuance of the notice, to give her consent in express terms, to be the minor's guardian. So also, she did not appear personally thereafter and an ex parte decree was made against the minor. For these two reasons, the plaintiff brought the present suit to avoid the ex parte decree and I have therefore to examine whether it was necessary (i) for the court to obtain the express consent of the guardian before appointing her as the guardian of the minor, and (ii) for the guardian to appear in person in the trial court after her appointment as such. I shall deal with the question of the guardian's consent first. Sub-rule (3) of rule 4 of Order XXXII of the Code of Civil Procedure, which was newly inserted in the Code of 1908 after the decision in Jadow Mulji Vs. Chhagan Raichand (2), reads as follows - " (3) No person shall without his consent be appointed guardian for the suit. " There can be no doubt that on the face of this clear and categorical requirement of the law, a person cannot be appointed guardian of a minor without his consent. The question is whether such consent has to be expressly stated by the person concerned, or whether it can be implied. While it has been argued by Mr. Lodha on behalf of the appellant, on the authority of the cases, to which I shall refer in a moment, that such consent can be implied, it has been argued by Mr. Parakh on behalf of the respondents that the consent must be expressly stated and that, if this is not so, there would be non-compliance with the mandatory provision of sub-rule (3 ). The question in Jadow Mulji's case (2) was whether the court had the power to appoint a guardian even though he was unwilling to act as such. The point was answerd in the negative and the principle is now enshrined in sub-rule (3 ). So while the law requires that it is not open for a court to appoint a person to be the guardian-ad-litem of a minor without his consent, there is nothing in the Code, or in the law of evidence, to require further that the guardian's consent must be expressly stated, or that it cannot be implied from the facts and circumstances of the case. In the absence of any provision, or special rule of evidence, to the contrary, there is no reason why the answer to the question should not be found on the evidence on the record. Where therefore the direct, the indirect, the circumstantial or the inferential evidence leads to the conclusion that the guardian had consented to represent the minor, there is no reason why his consent should not be implied, even though it was not expressly stated. I am fortified in this view by a large number of decisions. I shall first refer to a Full Bench decision of the Madras High Court in Vasireddi Sriramulu Vs. Putcha Lakshminarayana (3) even though it is not first in time amongst the cases cited by Mr. Lodha, on behalf of the appellant. I do so because, if I may say so with respect, I am fully in agreement with the following view of Coutts-Trotter C. J. who expressed the opinion of the Full Bench, - "there are cases that have been cited to us in which the learned Judges speak of express consent, but I do not think that before this reference arose the learned Judges who used the language which has been cited were really deliberately applying their minds to the question as to whether consent must under the statute be express. The statute does not contain the word "express", and I fail to see how Courts have a right to put into the statute a word which is not there. Consent is a question of fact. A person may have consented and there may be no direct evidence of it. " Phillips J. , who drew up the initial order of reference to the Full Bench referred to the earlier cases dating back to the case of Krishna Chandra Mandal Vs. Jogendra Narain Roy (4) where it was held that a court is not competent to appoint a person without his express consent as a guardian-ad-litem of a minor. But he disagreed with that view and expressed the opinion that unless it is otherwise provided consent may always be express or implied and he cited Chattar Singh Vs. Tej Singh (5) with approval. As I have stated, the view of the Full Bench that the question of consent is a question of fact, or evidence, appears to be quite correct. It has been followed in Shiam Bahadur Vs. Brij Kishore (6) and Raman Gangadharan Vs. Raman Narayanan (7), in which it has been held that the consent of the guardian need not be express and may be implied. The same view has been taken in Sarju Singh Vs. Dhan Ram (8), the earliest Oudh case being Baij Nath Vs. Radha Raman Prasad (9) in which also it has been held that the consent may be either express or implied. So far as the Allahabad High Court is concerned, I have already referred to Chhattar Singh's case (5), and it was followed by another Division Bench of the same High Court in Raja Babu Vs. Balmukund (10 ). In that case the notice was served on the person who was proposed for appointment as guardian. He did not appear or make any objection. The court appointed him to be the guardian and it was held that his consent to the appointment could be presumed by the trial Court. In Thomman Thommankunji Vs. Kunjumeethiyan Kochukunjali Nayan (11), a Division Bench of the Travancore Cochin High Court took the view that even though the guardian-ad-litem had not entered appearance and expressed her consent to act as such, her appointment was quite legal and he validly represented the minor. On that view, the ex parte decree against the minor was upheld. As I have stated, this view appeals to me. On the other hand, Mr. Parakh, learned for the respondent, has invited attention to some cases in which it has been held that the consent of the guardian has to be expressly stated before he can be appointed to represent the minor. The first of these is Dinabandhu Nandi Vs. Mashuda Khatun (12 ). The judgment is of 1912 and relates to a suit which was instituted before the promulgation of the Civil Procedure Code of 1908. The proposed guardian did not enter appearance and did not accept the guardianship in express terms. It was held that the minors were not represented. This judgment was followed in Krishna Chandra Mandal Vs. Jogendra Narain Roy (4) in which it was observed that it was not competent for the court to appoint the minors' mother to be their guardian-ad-litem without her express consent. This case also related to the period when the Civil Procedure Code of 1908 was not in existence. The other judgment of the Calcutta High Court is Jagdish Chandra De Vs. Harihar De (13) which was based on Krishna Chandra Mandal's case (4 ). It seems the learned Judges continued to follow the view which had once been taken by the High Court. Mr. Parakh has then referred to four decisions of the Patna High Court, Sajjad Husain Vs. Sakai Rai (14), Baraikram Govind Singh Vs. Chowra Uraon (15), Ramudar Singh Vs. Ramsurat Singh (16) and Ram Chandar Singh Vs. B. Gopi Krishna Dass (17 ). It is true that it has been held in Sajjad Hussin's case (14) that the consent of the guardian must be expressly stated. Their Lordships relied on the decisions of the Calcutta High Court for that view. But, for reasons already stated, I do not find it possible to follow it. The facts appear to be somewhat different in Baraik Ram's case (15) for there was no order of the court appointing the mothers as guardians or showing that the guardians had consented to act on their behalf. In Ramudar Singh Vs. Ramsurat Singh (16), no formal order was at all made appointing the mother as guardian and there was nothing to show that the name of any person appeared in the record of the suit as the guardian-ad-litem and that case was therefore on a different footing altogether. The facts of Ramchandar Singh Vs. B. Gopi Krishan Dass (17) were also quite different because no notice had been issued to the natural guardian or to the minor and it was found that the minor was not effectively represented in the proceedings. Thus these decisions arose out of vastly different facts. Besides, it may be pointed out that in Madhusudan Ray Vs. Jogendra Kar (18) a Division Bench of the Patna High Court took the view that the minor was properly represented on the record by his guardian even though no formal order of appointment was made and the proceedings culminated in an ex parte decree. The other cases on which reliance has been placed by. Mr. Parakh are Rameshwar Bakhsh Singh Vs. Mt. Ridh Kuer (19) and Beni Gopal Vs. Kanaiya Lal (20), the latter case being based on the former. In the former case (19), the guardian did not appear in the court and there was nothing in his conduct from which it could be inferred that he gave his consent to be appointed as the guardian. As a matter of fact it appeared that he was not a fit person to be appointed as the guardian of the minor and this is why the representation was not upheld. The facts of that case were therefore quite different. So far as the Ajmer case is concerned, it would be sufficient to say that there was nothing on the record to show that the proposed guardian had consented to act as the minor's guardian although the learned Judicial Commissioner was under the impression that if the proposed guardian did not appear in the suit, he could not be said to have consented to his appointment as a guardian.
(3.) THE remaining case on which reliance has been placed by Mr. Parakh is Khiarajmal vs. Daim (21 ). That is a judgment of their Lordships of the Privy Council and dates back to 1904. But it was quite a different case because the judge below had accepted without question the statement on record that one Amir Bux was the legal representative of Naurez and Alahnawaz was his guardian and had not applied his mind to the question of the minor's representative because the proceedings were cut short by an agreement to refer the case to arbitration. This was why their Lordships held that the estate of Naurez was not really represented in law or fact. I have considered all these cases and for reasons which I need not repeat, I am unhesitatingly of the opinion that in the absence of the word "express" in sub-rule (3) rule 4 of Order XXXII, Civil Procedure Code, the view of Coutts-Trotter C. J. in Varireddi Sriramulu Vs. Putcha Lakshminarayana (3) that the question of consent is really a question of fact which has to be decided on the evidence on the record, appears to lay down the law quite correctly, so that a person may have consented to be the guardian even though there may be no direct evidence of it. In other words, the consent may be implied if the evidence on the record justifies that inference. The learned Judge of the lower appellate court relied heavily on Raj Kumar Vs. Kishen Lal (1) for holding that the consent of a guardian cannot be implied and that it should be expressly stated. I have gone through that case and it appears to me that the learned Civil Judge has not understood it correctly. He failed to realise that the minor's elder brother had refused to act as his guardian and thereafter attempts were made to serve his mother Smt. Bhagwati Bai, but she was not actually served. It was in that context that this Court took the view that the attempt to serve her by substituted service was futile because no consent could be presumed in such circumstances by her omission to appear. It were these peculiar facts of the case which led to the view that the proposed guardian had not consented to her appointment as such and it cannot be an authority for the submission that this Court has laid it down as a rule that the consent of the guardian cannot be implied even though the evidence on the record justifies that inference. There can therefore be little doubt that the judgment of the lower appellate court has been vitiated by an important error of law and it is necessary for me to decide for myself the question whether it could be held on the evidence that Smt. Daya Bai had consented to act as the guardian-ad-liten of her infant son Babulal? The learned counsel for the parties have taken me through the entire evidence and the important facts from which the consent of the guardian can be easily inferred are these. Babulal was less than two years old at the time of his father's death. He was living with his mother Smt. Daya Bai at Amet and thereafter she shifted with him to the house of her brother Devilal in village Oda. The suit against the minor's father was pending in the Munsiff's court and notice Ex. A. 1 of May, 1949 was addressed to the minor through his mother, as his guardian, stating clearly that an application had been made to make him a party to the suit as the legal representative of his father Mangial and that the plaintiffs had also applied for the appointment of his mother as his guardian-ad-litem. This notice was served on the minor's mother and her brother Devilal at the place of their residence at Oda on June 3, 1949. Smt Daya Bai willingly accepted service of the notice and an endorsement to that effect was recorded on it. There was in fact no reason for her to refuse to be the guardian of her infant son and no such reason has been suggested. On the other hand, there was every reason for her to be willing to accept that responsibility because the suit had been instituted against her husband, who had died, and her son Babulal was his only legal representative. She was the natural guardian of the minor and on her own admission, she was his only true well wisher. It has also to be remembered that she was an adult, with, a sound mind and it is nobody's case that she had any interest adverse to her son or that she was otherwise disqualified to be the guardian of the son. She has admitted that no one could be more interested in the welfare of her son than herself. Her brother Devilal was a grown up literate man and knew about the suit and the notice. He was also genuinely interested in the matter because it is he who has instituted the present suit as the minor's next friend, at the instance of his sister Smt. Daya Bai. The help and guidance of Devilal was therefore available to Smt. Daya Bai all through. According to Smt. Daya Bai, Oda is at a distance of about 5 miles from the Munsiff's court at Kankroli (or Rajsamand) which was therefore within her easy reach. So if for any reason, which the plaintiff has not been able to suggest, she did not want to shoulder the responsibility of representing the minor as his guardian, all that she had to do was to make an application before the Munsiff to that effect. She did not choose to do so and if, on all the facts and circumstances mentioned above, the Munsiff thought that she was the best person to be appointed as the minor's guardian and presumed her consent, he was fully justified in reaching that conclusion. As I have already shown, such implied consent is quite sufficient to meet the requirements of the law. As a matter of fact the order which the Munsiff made on August 10, 1949, appointing the minor's mother Smt. Daya Bai to be his guardian was quite justified for the subsequent facts and developments of the case also leave no room for doubt that she had consented to be the minor's guardian for the suit. ;