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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • R. Gopalaswami Iyengar and M. Srinivasan for Applt.
  • Mr. R.N Kothandaramon for Respt
Judges
  • Raghavan, J.
Acts
  • Order XXXII, Rule 3 (5) of the Civil P. C.
  • Order 32, Rule 15 (3), Civil P. C.
  • Order XXXII Rule 3,
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • R. Gopalaswami Iyengar and M. Srinivasan for Applt.
  • Mr. R.N Kothandaramon for Respt
Judges
  • Raghavan, J.
Acts
  • Order XXXII, Rule 3 (5) of the Civil P. C.
  • Order 32, Rule 15 (3), Civil P. C.
  • Order XXXII Rule 3,
See more information ...
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This dispute concerns competing claims to shares in joint family properties following the death of Appasami. Appasami left a one-third share which devolved on his widow Nagammal and his two sons Ramasami and Veeraswami. Veeraswami died leaving two widows (the first and second defendants herein) and an adopted son (the plaintiff in the present suit). The plaintiff claims entitlement to a 2/12th (1/6th) share (as half of Veeraswami's 1/3rd), while the two widows claim smaller shares. The first defendant (a widow of Veeraswami) sued in O.S. No. 344 of 1957 in the District Munsif's Court, Pattukkottai, claiming entitlement to 1/6th share and obtained a decree for partition and separate possession of that 1/6th share; that decree was confirmed on appeal.

The plaintiff filed the present suit seeking: (1) a declaration that the decree in O.S. No. 344 of 1957 and the appellate decrees awarding 1/6th to the first defendant are not binding on him; (2) a declaration that the first defendant is entitled only to 1/12th share; and (3) a permanent injunction restraining the first defendant from further proceedings under the decree in O.S. No. 344 of 1957.

The first defendant maintained that the plaintiff had been represented in O.S. No. 344 of 1957 (and appeals) and that the plaintiff is therefore bound by those decrees; further, the first defendant denied the adoption on which the plaintiff's claim rests and pleaded res judicata. The Trial Court found that, despite the absence of a formal order appointing a guardian ad litem, the minor (plaintiff) had been substantially represented and that no prejudice had occurred; the Trial Court held the earlier decrees binding and dismissed the plaintiff's suit.

The plaintiff appealed to the Subordinate Court (A.S. No. 106 of 1967) which allowed that appeal, holding that the decree in O.S. No. 344 of 1957 was not binding and directing that the District Munsif reopen the suit and appoint a guardian ad litem. The defendant (who had been successful in the earlier proceedings) brought a second appeal to the court whose opinion is summarized here.

Legal Issues Presented

  1. Whether a decree in a suit against a minor is vitiated by the absence of a formal order appointing a guardian ad litem when the minor has been substantially represented in the proceedings.
  2. Whether the absence of a formal appointment of a guardian ad litem in O.S. No. 344 of 1957 prejudiced the plaintiff and therefore rendered the decrees in that suit and the appeals not binding on him.
  3. Whether the Subordinate Court's order directing reopening of O.S. No. 344 of 1957 and appointment of a guardian ad litem was legally correct in the circumstances.

Arguments of the Parties

Plaintiff's Arguments

  • The decree in O.S. No. 344 of 1957 and the appellate decrees are not binding on him because he was not represented by any guardian ad litem in that suit; no formal order of appointment was made and therefore he was not represented.
  • On that basis, the plaintiff sought declarations that the earlier decrees did not bind him, a declaration of his entitlement (2/12th), and an injunction restraining further proceedings under the decree.

Appellant's (Defendant's) Arguments

  • The appellant denied the adoption claimed by the plaintiff.
  • Notwithstanding the absence of a formal order appointing a guardian ad litem, notices for a guardian were taken out, guardians proceeded to protect the minor's interests, and no prejudice resulted to the minor.
  • The second defendant and third defendant in the former suit had expressed willingness to act as guardian, and the father (Ramasami) had been involved and had filed appeal papers on behalf of the minor; thus, the minor was represented.
  • The appellant contended the Subordinate Court's order to reopen the trial in O.S. No. 344 of 1957 was illegal and that the present suit is barred by res judicata because the minor was represented.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Walian v. Banke Behari Pershad Singh, (1903) ILR 30 Cal 1021 (PC) The absence of a formal order appointing a guardian ad litem is not fatal if it is not shown that the defect prejudiced the minor; the decree binds the minor where his interests were duly protected by those who acted as guardian. The court relied on this authority to support the principle of substantial representation and to hold that formal omission is not fatal unless prejudice is proved.
Sadashiv v. Trimbak, ILR 44 Bom 202 = (AIR 1920 Bom 32) Irregularity (absence of formal appointment) will vitiate a decree if there is prejudice to the minor's interest. Referenced to show the limiting principle that absence of formal appointment is fatal only when prejudice results; the court applied that principle and found no prejudice in the present case.
ILR 55 Cal 1241 = (AIR 1928 Cal 844); Shaik Abdul Karim v. Thakurdas Illustrates authorities where absence of formal procedural steps may impact validity of decrees when prejudice occurs. Used as part of the body of authorities demonstrating that prejudice must be shown to vitiate proceedings.
ILR 37 All 179 = (AIR 1915 All 62 (2)) Support for the proposition that absence of guardian appointment may render a decree void where prejudice is shown. Referred to among cases establishing the general principle; court contrasted these with cases favoring substantial representation.
Bhagwan Dayal v. Param Sukh; Wallace, J. in Thirumalacharyulu v. Ammisetti Venkiah, 46 Mad LJ 363 = (AIR 1924 Mad 763) Held that omission to send notice as required under Order XXXII, Rule 3(5), C.P.C., will not render presumed representation void unless such omission has prejudiced the minor; prejudice is a matter of proof. Relied upon to emphasize that procedural omissions (notice defects) do not automatically invalidate representation; the court required proof of prejudice and found none.
Ram Chandra v. Man Singh The general principle that a decree passed against a minor without appointment of a guardian is a nullity and void (and not merely voidable); applied to lunatics under Order 32, Rule 15(3), C.P.C. Referred to as authority for the core proposition recognizing the gravity of unrepresented minors' decrees, but the court read it alongside authorities that allow for substantial representation where no prejudice arises.
Ram Asray v. Sheonandan, AIR 1916 Pat 267 (Full Bench) Where an application for a guardian ad litem is made and the guardian nominated is allowed to represent the minor at trial, mere omission to make a formal order of appointment is not fatal to the suit. The court followed this Full Bench view to conclude that substantial representation (even without a formal order) can validate the proceedings if the minor's interests were adequately protected.
Nirmal Chandra v. Khandu Ghose Affirms the doctrine of substantial representation: effective representation in substance, though not in form, will prevent informality from being fatal if no prejudice resulted. The court quoted and relied on this case (and the observations of Banerjee, J.) to support its conclusion that the doctrine of substantial representation applies in the present facts.

Court's Reasoning and Analysis

The court analyzed whether the absence of a formal order appointing a guardian ad litem in O.S. No. 344 of 1957 invalidated the decrees insofar as they affected the present plaintiff (a minor at the time). The court proceeded in several logical steps:

  1. The court surveyed authoritative decisions establishing two competing propositions: (a) a decree against an unrepresented minor is void and (b) where a minor has been substantially represented (even in the absence of a formal appointment), the procedural informality is not fatal unless the minor was prejudiced. The court cited multiple decisions (including Walian v. Banke Behari Pershad Singh, Ram Asray v. Sheonandan, Nirmal Chandra v. Khandu Ghose, and others) to frame the legal landscape.
  2. The court examined the factual record of the former suit (O.S. No. 344 of 1957) and found that an application for appointment of guardian (I.A. 242 of 1958) supported by affidavit (Ex. A-3) had been filed; the proposed guardian was the minor's natural father, Ramasami, and the affidavit averred that Ramasami had no adverse interest and was fit to act as guardian. The affidavit also contemplated appointment of a Court guardian if Ramasami declined.
  3. The court noted procedural steps: notice on the application was issued on 28-2-1958 and the application was heard on 3-3-1958; Ramasami was served and expressed willingness to act as guardian; Krishnammal (the adoptive mother) also appeared and expressed willingness to act and filed a vakalat on 3-3-1958 (Ex. A-2). Although there was no formal court order appointing a guardian ad litem, persons who could protect the minor's interests appeared and acted in the proceedings.
  4. The court found that Ramasami (the natural father) represented the minor's interests during further proceedings: he filed the appeal against the preliminary decree on behalf of the minor and represented the minor in the second appeal in the High Court, and he put forward the adoption of the minor in those proceedings. No contention was advanced by him that was adverse to the minor's interests.
  5. Applying the legal principle that a procedural defect (an omission to make a formal appointment) will vitiate a decree only if it caused prejudice to the minor, and considering the cited authorities that endorse the doctrine of substantial representation, the court concluded that the minor was adequately represented and no prejudice resulted from the absence of a formal appointment.
  6. On that basis, the court held that the decree in O.S. No. 344 of 1957 was not vitiated by the formal defect and that the doctrine of substantial representation applied; accordingly, the court allowed the second appeal.

Holding and Implications

Core Ruling: APPEAL ALLOWED.

The court held that, in the circumstances of this case, the minor's interests had been adequately safeguarded by the natural father and the adoptive mother who appeared and acted in the prior proceedings; the mere absence of a formal order appointing a guardian ad litem did not vitiate the decree because no prejudice to the minor was shown. Consequently, the court allowed the second appeal. The court ordered no costs and noted "No leave."

Implications for the parties: the court's decision means that the procedural omission (no formal order appointing a guardian ad litem in O.S. No. 344 of 1957) did not render the earlier decree void as against the plaintiff because the plaintiff was substantially represented and no prejudice was proved. The immediate effect was that the second appeal succeeded. The opinion does not purport to establish a novel legal principle beyond applying established authorities on "substantial representation"; it applies those authorities to the facts and finds no prejudice in the prior proceedings.

Show full summary ...

    Rangammal v. Appasami

    1. The defendant is the appellant. The suit is for (1) a declaration that the decree in O. S. No. 344 of 1957 on the file of the District Munsif's Court. Pattukkottai, and the decrees in Appeals awarding 1/6th share to the 1st defendant herein are not binding on the plaintiff. (2) for a declaration, that the first defendant herein is entitled only to 1/12th share in the suit properties and (3) for a permanent injunction restraining the first defendant from taking further proceedings in pursuance of the decree passed in O. S. No. 344 of 1957 on the file of the District Munsif's Court, Pattukottai. One Appasami had two sons Ramasami and Veeraswami. On the death of Appasami, his 1/3rd share in the joint family properties devolved on his widow Nagammal and the said two sons Ramaswami and Veerasami. Veerasami died leaving defendants 1 and 2 his widows and adopted on 27-4-1956 prior to his death. The plaintiff as such adopted a son of Veerasami became entitled to a half share in the 1/3rd share to which Veerasami was entitled. The remaining half share devolved on his widows defendants 1 and 2.

    2. The case of the plaintiff is that he is entitled to 2/12th share, defendants 1 and 2 to 1/12th share each, the defendant namely Ramasami is entitled to 1/3rd and Nagammal entitled to the other 1/3rd share. The first defendant, one of the widows of Veerasami filed O. S. No. 344 of 1957 in the District Munsif's Court. Pattukkottai claiming that she is entitled to 1/6th share and for partition and separate possession of 1/6th share. The third defendant Ramasami, in this Suit, was the first defendant in that suit. The plaintiff herein was the second defendant and the second defendant herein was the third defendant. Nagammal was impleaded as a fourth defendant in that suit. The plaintiff in O. S. No. 344 of 1957 obtained a decree for partition and separate possession of her 1/6th share and the decree was confirmed in appeal.

    3. The case of the plaintiff in this suit is that the decree passed in O. S. No. 344 of 1957 is not binding on him as he was not represented at all by any guardian ad item in the said suit. No one was appointed as guardian ad litem as the court did not pass any order appointing the third defendant herein or any one else as the guardian. The plaintiff contended that he was not represented at all in that suit and he has filed the present suit for the reliefs mentioned above.

    4. The first defendant filed a written statement denying the adoption by Veerasami and stated that the plaintiff was fully represented in O. S. No. 344 of 1957 and in the appeals therefrom, that defendants 2 and 3 herein expressed their willingness in the former suit to be the guardian to the plaintiff herein, that the second defendant actually filed a written statement that the father of the plaintiff was mentioned as the guardian in the trial Court and it was he who filed the appeal to the High Court that the first defendant filed an application for passing a final decree and the present plaintiff put forward the same contentions as he is now putting forward in the present suit, that the trial Court dismissed the final decree application, but it was set aside by the High Court in C. R. P. No. 2434 of 1961 and that the plaintiff is debarred from filing this suit and the suit is barred by res judicata.

    5. The trial Court held that, not withstanding the absence of a formal order of appointment of a guardian ad litem for the minor in the former suit, no prejudice had been caused to the minor on account of the same, that the minor was substantially represented in the former suit and that the decision in O. S. No. 344 of 1957 and appeals therefrom are binding on the plaintiff. The trial Court also negatived the adoption put forward and held the present suit was barred by res judicata by reason of the decision in O. S. 344 of 1957 and the suit was accordingly dismissed.

    6. The plaintiff filed A. S. No. 106 of 1967 to the Sub-Court Thanjavur and the learned Judge allowed the appeal holding that the decree in O. S. No. 344 of 1957 on the file of the District Munsif, Pattukkottai is not binding on the plaintiff and directed the District Munsif to reopen the suit on file and proceed with the suit after appointing a guardian ad litem. The defendant has filed the above second appeal.

    7. The learned counsel for the appellant contended (1) That notwithstanding (absence of) the formal order appointing a guardian ad litem, notices for the guardian were taken out and the guardians were proceeding to protect the interests of the minor and on this account, no prejudice has been caused to the minor, and (2) that the order of the Court below to reopen the trial in O. S. No. 344 of 1957 is illegal. Normally, when a minor defendant is not represented at all, he is not a party to the suit and the decree as against him is a nullity, but the question for consideration is whether the court which has recognised the guardian ad litem, but has made no formal appointment there is substantial representation of the minor in the proceedings. A similar question arose for consideration in Walian v. Banke Behari Pershad Singh, (1903) ILR 30 Cal 1021 (PC). There a suit was brought against a minor, but no order for appointment of a guardian ad litem was applied for and none was made in the plaint. However, the mother of the minor was described as his guardian. The mother appeared throughout the proceedings in the suit as the minor's guardian. A decree was passed against the minor. In the decree and in the execution proceedings the mother was described as minor's guardian. In a suit brought by the minor on his attaining majority, to set aside the decree passed against him, on the ground that no guardian ad litem has been appointed, as required by Order XXXII Rule 3, the Privy Council held that the absence of a formal order of appointment was not fatal to the suit unless it is shown that the defect in procedure prejudiced the minor. Their Lordships observed that there is nothing in the proceedings in that suit to suggest that the interests of the minor were not duly protected by the mother or that the defect in procedure had prejudiced the minor and ultimately, the Privy Council held that the decree is binding on the minor.

    8. It is clear that the above irregularity will vitiate the decree if there is prejudice to the minor's interest, as was held in Sadashiv v. Trimbak, ILR 44 Bom 202 = (AIR 1920 Bom 32) and ILR 55 Cal 1241 = (AIR 1928 Cal 844), (Shaik Abdul Karim v. Thakurdas) & ILR 37 All 179 = (AIR 1915 All 62 (2)); (Bhagwan Dayal v. Param Sukh) Wallace, J. in Thirumalacharyulu v. Ammisetti Venkiah, 46 Mad LJ 363 = (AIR 1924 Mad 763)held that no irregularity by way of omission to send a notice as required under Order XXXII, Rule 3 (5) of the Civil P. C. will operate to render void the presumed representation of the minor in a suit by a guardian ad litem appointed for him, unless such an omission has in fact prejudiced his defence and that such prejudice is not a matter of assumption or presumption but of proof. In Ram Chandra v. Man Singh, , where the general principle that if a decree is passed against a minor without appointment of a guardian, the decree is a nullity and is void and not merely voidable has been laid down, and the said principle was made applicable to the case of a lunatic under Order 32, Rule 15 (3), Civil P. C.

    9. In the present case, what has happened is that an application for appointment of a guardian was filed in I. A. 242 of 1958 supported by an affidavit-Ex. A-3, The third defendant who was the natural father of the plaintiff was proposed as guardian and the affidavit in support of the application contained an averment that Ramaswami, the natural father, has no adverse interest against the minor and that he was a proper person to be appointed as guardian. The affidavit also contained an averment that in case Ramasami was not willing to act as guardian, a Court guardian may be appointed. The court issued notice on 28-2-1958 on the application and the application was posted to 3-3-1958. Ramaswami, the natural father was served with notice. The application was called on 3-3-1958 and Ramaswami expressed his willingness to be the guardian, Krishnammal, that is, the adoptive mother, also appeared on that day and expressed her willingness to be the guardian and Krishnammal would appear to have filed a vakalat also, dt. 3-3-1958 (Ex. A-2). It may be noted that although Krishnammal's name was not mentioned in the affidavit filed in support of the application, she appeared in Court and expressed her willingness to be appointed as guardian and in fact filed a vakalat representing as guardian. Ramamsami who had no interest adverse to that of the adopted son represented his son in the further proceedings and he filed an appeal against the preliminary decree on his behalf and as guardian of his son and in the second appeal in the High Court he represented the minor's interest. He put forward the adoption of the minor in the above proceedings and no contention was put forward by him contrary to the minor's interest. In the above circumstances, it cannot be said that any prejudice has been caused to the minor on account of the formal defect in not passing a formal order appointing him as guardian ad litem to the minor. A Full Bench of the Patna High Court in Ram Asray v. Sheonandan, AIR 1916 Pat 267 (FB), held that where in a suit any application of guardian ad litem is made and the guardian nominated in the application is allowed to represent the minor at the trial, a mere omission to make a formal order of appointment as guardian is not fatal to the suit. In Nirmal Chandra v. Khandu Ghose, a similar view was taken. Banerjee, J. at page 569 observes as follows:

    "The doctrine of substantial representation is a matter of substance and not of form. Where a minor who was effectively represented in a suit by a guardian although not formally appointed, suffers no prejudice on account of the informality, the absence of a formal order of appointment of a guardian is not fatal to the suit. In this view I find support from the following observations of the Privy Council in ( 1903) 30 Ind App 182 (PC)."

    10. Following the above decisions, I am of opinion that the minor's interests have been adequately safeguarded in the former suit by the natural father of the minor representing him and taking part in the proceedings in the court and the mere fact that a formal order was not passed will not vitiate the decree, ad that there has been a substantial representation of the minor in the former suit. In the result, the second appeal is allowed. There will be no order as to costs. No leave.

    11. Appeal allowed.

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    Comments

    Rangammal v. Appasami
    (Feb 4, 1972)