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Annada Prasad Ghose v. Upendra Nath Dey Sarkar

Calcutta High Court

Aug 5, 1921

Judgment

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Structured Summary of the Court's Opinion

Factual and Procedural Background

This is an appeal by the fourth Defendant in a suit for recovery of possession of immoveable property on establishment of title. The Appellant was an infant when the suit was instituted on 5th May 1916 (recorded as "5th Hay 1916"). An application was made on behalf of the Plaintiff that Hari Das Ghose, who had been appointed guardian of the infant's person and property under the Guardians and Wards Act, 1890, be appointed guardian for the suit. Notices (in the form prescribed in Appendix H to the Code of Civil Procedure) were issued to the minor and to the proposed guardian. On 6th June 1916 it was reported that the notices had been duly served. Although there was no appearance on behalf of the proposed guardian, the Court nevertheless appointed him as guardian for the suit. During the trial the appointed guardian never appeared, and the suit was decreed ex parte against the infant (described on the record as represented by the certificated guardian).

The certificated guardian appealed to the Subordinate Judge on behalf of the infant; that appeal was dismissed. After attaining majority the former infant (now the Appellant) preferred the present appeal in his own right, contending that the primary Court's decree is void and should be set aside and that the suit should be re-tried so far as he is concerned. The Respondent contested that position. The Court stated that the question depends upon the construction of Order 32 of the Code of Civil Procedure.

Legal Issues Presented

Whether, under Order 32 of the Code of Civil Procedure (particularly rule 4, sub-rule (3)), a person (including a certificated guardian) can be appointed guardian for the suit without his consent.
If a guardian is appointed without his consent and does not represent the infant in the suit, whether a decree made against the infant is binding and valid.
Whether actions taken by the proposed guardian (such as preferring an appeal) or his later conduct can be treated as signifying consent to appointment as guardian for the suit.
Whether decisions such as Waliar v. Banke Behari Pershad Singh (on the effect of absence of a formal order where the proposed guardian has in fact appeared and acted) or provisions such as section 99 C.P.C. can validate proceedings where formal appointment or consent is absent.

Arguments of the Parties

Appellant's Arguments

The decree made by the primary Court is void and inoperative against him because he was not properly represented by a guardian for the suit (the appointed guardian had not consented and did not appear or act during trial).
The decree against him should be set aside and the suit retried so far as he is concerned.

Respondent's Arguments

Sub-rule (3) of rule 4 of Order 32 should be read as applicable only to persons other than certificated guardians; a certificated guardian may be treated as consenting (or to be presumed to consent) to act for the minor in litigation.
Under the Guardians and Wards Act, 1890 (secs. 10 and 27), a certificated guardian has duties (including, it was urged, the obligation to defend suits) and, accordingly, the Court may presume that such a guardian will consent to be appointed guardian for the suit.
The principle of the Judicial Committee's decision in Waliar v. Banke Behari Pershad Singh could be invoked: where the proposed guardian has appeared and acted throughout trial, absence of a formal order of appointment is not fatal and may be treated as a curable irregularity.
The fact that the proposed guardian preferred an appeal to the Subordinate Judge might indicate he had consented to act as guardian for the suit.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Khirajmal v. Diam	Judicial Committee decision referred to among authorities holding that appointment of a guardian without his consent leaves the infant unrepresented and a decree in such circumstances has no binding effect.	Cited as part of a long series of authorities supporting the proposition that appointment without consent invalidates representation and the decree.
Rashidannessa v. Mahammad Ismail Khan	Judicial Committee decision supporting the same general proposition regarding appointment without consent.	Cited in support of the conclusion that a guardian appointed without consent does not represent the infant and that decrees so obtained are ineffective.
Partah Singh v. Bhabuti Singh	Judicial Committee decision on the effect of appointment without consent.	Used with other Judicial Committee authorities to show the settled position that lack of consent renders representation ineffective.
Dakheswar Prosad Narain Singh v. Ruvat Marton	Decision of this Court cited as authority that a guardian appointed without consent does not properly represent the infant.	Cited among several decisions of this Court affirming the rule that appointment without consent invalidates representation.
Narsingh Narayan v. Sheikh Jahi Mistry	Decision of this Court on the effect of guardianship appointment and consent.	Cited as part of the body of case law supporting the Court's conclusion about invalidity of decrees when guardian was appointed without consent.
Bal Kishan v. Topeswar	Decision of this Court consistent with the principle that an infant is not represented if the guardian is appointed without consent.	Included among authorities relied upon for the general rule.
Dinabandhu Nandi v. Mashuda Khatun	Decision of this Court on the legal effect of guardian appointment lacking consent.	Cited as supporting authority for holding decrees void where the infant was not properly represented.
Purna Chandra v. Bijoy Ghand	Decision of this Court in the same line of authority.	Relied upon as part of the jurisprudence that the Court referred to in reaching its conclusion.
Baneswar v. Tara Pada	Decision of this Court relevant to representation of infants and guardianship consent.	Used with other cases to demonstrate the settled rule.
Radhashyam v. Ranga Sundari	Authority from this Court on the subject of guardian appointment and validity of proceedings.	Cited among decisions indicating the necessity of consent for proper representation.
Barendra Nath Bose v. Aghore Nath Bose	Decision of this Court establishing that when a Court makes a decree against an infant who is not properly represented as contemplated by the Code, the Court acts without jurisdiction.	Cited specifically to reject reliance on section 99 C.P.C. and to support the view that a decree against an unrepresented infant is null for want of jurisdiction.
Chaudhuri Krishnayya v. Koripalli Raju	Madras High Court decision adopting the view that absence of consent invalidates appointment or leaves infant unrepresented.	Cited as an example of Madras High Court adopting the same general position as this Court.
Sharoof Sahib v. Haghunatha Sivaji	Madras High Court decision aligned with the view that consent is mandatory for appointment as guardian for the suit.	Referenced as supporting the Court's conclusion and relied upon in addressing the question whether appellate action by a guardian can be treated as consent.
Oodayanasamy Tevar v. Alagappa Chetty	Madras High Court decision indicating a contrary view (at one time) on the effect of consent/formal appointment.	Not followed; cited to note historical divergence in Madras but contrasted with later Madras decisions and the present Court's view.
Mohan Krishna v. Har Prosad	Patna High Court decision emphasising that the provision as to the consent of the person proposed to be appointed guardian for the suit is mandatory and imperative.	Cited to support the mandatory character of sub-rule (3) of r. 4, reinforcing the Court's interpretation.
Waliar v. Banke Behari Pershad Singh	Judicial Committee decision holding that where a proposed guardian has in fact appeared and acted throughout the trial, absence of a formal order of appointment is not fatal and may be treated as curable irregularity.	Distinguished by the Court: Waliar applies only where the proposed guardian actually appeared and acted; it does not assist where the proposed guardian neither consented nor appeared or acted during trial.
Janaki Das v. Mohabir	Decision cited (with Pokhpal, Asray Singh, Keshwesarendra Sahi) as illustrating the principle that absence of formal order may be curable where guardian actually appears and acts.	Used to explain the limited scope of Waliar and similar authorities; contrasted with the present facts where the guardian did not act.
Pokhpal v. Chidder	Case illustrating the curable irregularity principle where the proposed guardian appeared and acted.	Referenced to show the line of authorities where lack of formal appointment is not fatal if the guardian in substance represented the minor.
Asray Singh v. Sheo Naran Singh	Case in same group supporting curability where proposed guardian actually acted for the minor.	Cited to delimit the application of Waliar-type reasoning.
Keshwesarendra Sahi v. Ranee Debendra Bala Dasi	Another authority in the line that treats absence of formal appointment as curable where the guardian appeared and acted.	Used to contrast the present situation (no appearance/action) with cases where substantive representation cured formal defects.
Sharoof v. Raghunatha (Madras High Court)	Decision supporting the view that mere preference of an appeal by the proposed guardian does not necessarily indicate consent where he did not otherwise appear during trial.	Relied upon by the Court in rejecting the contention that the proposed guardian's appeal amounted to consent to act as guardian for the suit.

Court's Reasoning and Analysis

The Court's analysis proceeded in stages, closely following the provisions of Order 32 of the Code of Civil Procedure:

Obligation to appoint a guardian: The Court observed that Order 32, rule 3(1) makes it obligatory, upon proof of minority, for the Court to appoint a proper person to be guardian for the suit. The Rule prescribes the notice procedure to be followed before making such an appointment.
Who may act as guardian for the suit: Rule 4 divides potential guardians into two classes. Sub-rule (1) allows any person of sound mind and majority to act as next friend or guardian for the suit. Sub-rule (2) reserves primacy for a guardian appointed or declared by competent authority (subject to the Court's power, for reasons to be recorded, to allow another person to act). Sub-rule (3) states: "No person, shall, without his consent, be appointed guardian for the suit."
Interpretation of sub-rule (3): The Court held that the general language of sub-rule (3) demonstrates legislative intent that the consent requirement applies equally to persons under sub-rules (1) and (2). Accordingly, even a certificated guardian (a guardian appointed under the Guardians and Wards Act) cannot be appointed guardian for the suit without his consent.
Rejection of the Respondent's contention: The Respondent argued that sub-rule (3) applied only to persons other than certificated guardians, drawing support from sections 10 and 27 of the Guardians and Wards Act (which require a declaration of willingness and prescribe guardians' duties). The Court rejected that argument, noting that if the Legislature had intended the limitation urged by the Respondent it could have framed sub-rule (3) differently (for example, by excepting certificated guardians expressly).
Practical and policy considerations: The Court emphasized practical difficulties and potential injustice if certificated guardians could be appointed over their express refusal. A guardian appointed against his will would likely neglect the suit; disciplinary remedies (e.g., removal under section 39) were inadequate to protect the infant's interests. This practical risk reinforced the interpretive conclusion that consent is mandatory for all appointments under r. 4.
Effect of an appointment without consent: Drawing on a long series of authorities (Judicial Committee and High Court decisions), the Court concluded that appointment of a guardian without his consent leaves the infant unrepresented and that any decree made in such circumstances has no binding effect upon the infant.
Distinguishing Waliar: The Court distinguished Waliar v. Banke Behari Pershad Singh, noting that Waliar applies where the proposed guardian actually appeared and acted throughout the trial (so that absence of a formal order can be treated as a curable irregularity). That principle does not assist where the proposed guardian neither consented nor appeared or acted, as in the present case.
On appeal as evidence of consent: The Court rejected the contention that the proposed guardian's subsequent appeal indicated consent. Although the guardian preferred an appeal on behalf of the infant, he had not appeared during trial nor taken steps to protect the infant's interest. The Court relied on supporting authority (Madras High Court decision in Sharoof v. Raghunatha) for the proposition that such appellate action, without substantive participation in the trial, does not furnish evidence of consent to appointment for the suit.
Conclusion from analysis: Because the proposed guardian did not signify his consent, the appointment was made in contravention of sub-rule (3) of rule 4; therefore the infant was not properly represented and the decree against him could not be maintained.

Holding and Implications

APPEAL ALLOWED.

Holding (core ruling): The Court allowed the appeal. It held that sub-rule (3) of rule 4 of Order 32 C.P.C. applies to certificated guardians as well as to other persons and that no person may be appointed guardian for the suit without his consent. Because the proposed guardian had not consented and had not represented the infant in the trial, the decree made against the infant was void as to him.

Direct consequences and orders:

The decrees of both lower Courts were set aside, but only insofar as they affect the Appellant.
The suit was remitted to the Court of first instance to be retried against the Appellant.
The Appellant was awarded his costs in this Court to be paid by the Plaintiff-Respondent; the Court made no order as to costs in the Courts below.
It was recorded that this judgment would govern second Appellants Nos. 2377 to 2379 of 1919 and that similar decrees would be drawn up in those cases.

Broader implications: The opinion applies and reiterates an established line of authority requiring consent of a proposed guardian for appointment in suit proceedings; where consent is absent and the proposed guardian does not act for the minor, decrees obtained against the infant are void for want of proper representation and for want of jurisdiction. The Court distinguished authorities that permit curative treatment of formal defects only where the guardian in fact appeared and acted.

J.N.R

Appeal allowed.

Show all summary ...

The Judgment of the Court was as follows:—

This is an appeal by the fourth Defendant in a suit for recovery of possession of immoveable property on establishment of title. The Appellant was an infant at the date of the institution of the suit on the 5th Hay 1916. An application was made on behalf of the Plaintiff that Hari Das Ghose who had been appointed guardian of his person and property under the Guardians and Wards Act, 1890 might be appointed his guardian for the suit. Thereupon notices were issued upon the minor and the proposed guardian. The notices were in the form prescribed in Appendix H to the Code of Civil Procedure and stated that if within the peri of prescribed an application was not made to the Court for the appointment of the proposed guardian or some friend of his to act as guardian of the minor for the suit, the Court would proceed to appoint some other person to act as guardian ad litem of the minor. On the 6th June 1916 it was reported to the Court that the notices had been duly served both upon the minor and his proposed guardian. There was no appearance, however, on behalf of the proposed guardian; yet the Court proceeded to appoint him as guardian of the minor for the suit. At no stage of the suit, did the guardian appear and the result was that the suit was decreed ex parte against the infant described on the record as represented by the certificated guardian. Against this decree, the guardian on behalf of the infant preferred an appeal to the Subordinate Judge and contended that the ‘decree could not stand as against the infant. This contention was overruled and the appeal was dismissed. Since the date of the decree of the Subordinate Judge, the infant has attained majority and the present appeal has been preferred by him in his own right. His contention is that the decree made by the primary Court is void and inoperative as against him and should be set aside with direction to that Court to re-try the suit so far as he is concerned. This position has been controverted on behalf of the Respondent. The decision of the question raised before us is not free from difficulty and depends upon the true construction of the provisions of Or. 32 of the Code of Civil Procedure.

Or. 32, r. 3(1) provides that where the Defendant is a minor, the Court on being satisfied of the fact of his minority shall appoint a proper person to be guardian for the suit for such minor. This makes it obligatory on the Court to appoint a proper person to be guardian of the minor Defendant for the suit. The Rule then prescribes the procedure to be followed for the purpose of such appointment. No order shall be made on any application under this Rule except upon notice to the minor and to any guardian of the minor appointed or declared by an authority competent on that behalf, and where there is no such guardian, upon notice to the father or other natural guardian of the minor, or, where there is no father or other natural guardian, to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule. R. 4 next deals with the question as to who may act as next friend or be appointed guardian for the suit. The persons who may so act are divided into two classes. Sub-r. (1) provides that any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit. Sub-r. (2) provides that where a minor has a guardian appointed or declared by competent authority, no person other than such guardian shall act as the next friend of the minor or be appointed his guardian for the suit unless the Court considers, for reasons to be recorded, that it is for the minor's welfare that another person be permitted to act or be appointed as the case may be. Then follows sub-r. (3) in the following term: “No person, shall, without his consent, be appointed ‘guardian for the suit.”’ The generality of the language used in sub-r. (3) makes it abundantly clear that the Legislature intended this sub-rule to be applicable as well to cases under sub-r. (1) as under sub-r. (2); in other words, the Legislature has prescribed that no person who is competent to act as guardian of an infant either under sub-r. (1) or under sub-r. (2) shall be appointed guardian for the suit without his consent. It was argued on behalf of the Respondent in essence that this sub-rule is applicable only to cases of persons other than certificated guardians. This result, it was contended, follows from the provisions of the Guardians and Wards Act, 1890, which defines, in secs. 10 and 27 the duties of a person appointed as guardian of the person and property of an infant. Sub-sec. (3) of sec. 10 provides that the application of a person to be appointed guardian of an infant must be accompanied by a declaration of the willingness of the proposed guardian to act and the declaration must he signed by him and attested by at least two witnesses. Sec. 27 provides that a guardian of the property of a ward is bound to deal with it as carefully as a man of ordinary prudence would deal with it, if it were his own, and, subject to certain qualifications, he may do all acts which are reasonable and proper for the realisation, protection or benefit of the property. The Respondent has urged that a guardian appointed under Act VIII of 1890 is under an obligation to defend a suit instituted against his ward; and that consequently, the Court where the suit has been instituted is entitled to presume, if not as a matter of law, at any rate as a matter of fact, that he will consent to be appointed guardian for the suit. We are of opinion that this contention should not prevail. If this were the intention of the Legislature sub-r. (3) of r. 4 might have been placed between sub-rr. (1) and (2) or might have been framed in different words. For instance, it might have provided that no person, other than a certificated guardian, shall, without his consent, be appointed guardian for the suit.

But, beyond this, a serious difficulty might arise, if the Court which had seizin of the suit were held competent to appoint a certificated guardian as guardian for the suit even where he withheld his consent or expressly declined the appointment. A person appointed guardian for the suit in such circumstances, would, almost to a certainty neglect to look after the suit, and the interest of the minor would be placed in serious jeopardy. It may be conceded that a certificated guardian who takes up such an attitude may render himself amenable to the disciplinary jurisdiction of the Court which appointed him as guardian. He may, indeed, be removed under sec. 39 for breach of duty or neglect of trust. But that clearly does not afford adequate protection to the infant whose interests would be imperilled by the remissness of a person appointed, against his wishes, possibly in spite of his protest, to act as guardian for the suit. We are reluctant to adopt a construction of r. 4 which may conceivably lend to so disastrous a result. In our opinion sub-r. (3) of r. 4 controls both sub-r. (1) and sub-r. (2) and places a material restriction upon the power which the Court may exercise thereunder. It is thus plain that, in the case before us, as the proposed guardian did not signify his consent, the Court should not, in contravention of the express direction of sub-r. 3 of r. 4, have appointed him as guardian for the suit.

What then, is the effect of an appointment so made? It has been laid down in a long series of decisions that when a person has been appointed guardian without his consent, the infant is not represented and a decree made in a suit so constituted has no binding effect upon him. Amongst the decisions of the Judicial Committee, reference may be made to Khirajmal v. Diam , Rashidannessa v. Mahammad Ismail Khan and Partah Singh v. Bhabuti Singh (3). Amongst the decisions of this Court, reference may be made to Dakheswar Prosad Narain Singh v. Ruvat Marton (4), Narsingh Narayan v. Sheikh Jahi Mistry (5), Bal Kishan v. Topeswar (6), Dinabandhu Nandi v. Mashuda Khatun (7), Purna Chandra v. Bijoy Ghand (8), Baneswar v. Tara Pada (9), Radhashyam v. Ranga Sundari (10) and Barendra Nath Bose v. Aghore Nath Bose (11). A similar view was adopted by the Madras High Court in Chaudhuri Krishnayya v. Koripalli Raju (12) and Sharoof Sahib v. Haghunatha Sivaji (13), though a contrary view appears to have prevailed at one time in that Court as indicated by the judgment in Oodayanasamy Tevar v. Alagappa Chetty . Indeed, it is now well settled that the provision as to the consent of the person proposed to be appointed guardian for the suit is mandatory and imperative and this was emphasised by Patna High Court in Mohan Krishna v. Har Prosad (15). But the Respondent has urged that the present case falls within the principle of the decision of the Judicial Committee in Waliar v. Banke Behari Pershad Singh (16), which is clearly distinguishable. As appears from the judgment of the Judicial Committee in that case, the mother who had been proposed for appointment as guardian of her minor son had entered appearance and acted throughout the trial of the suit. No trace, however, could be found on the record of a formal order for her appointment as guardian ad litem. The Judicial Committee held in substance that the absence of a formal order of appointment as guardian is not fatal to the validity of the proceedings, where the proposed guardian has in fact appeared and acted on behalf of the minor. In such a contingency, the absence of the formal order may well be treated as a curable irregularity. That this is the true effect of the decision of the Judicial Committee follows from the decisions in Janaki Das v. Mohabir , Pokhpal v. Chidder (18) and Asray Singh v. Sheo Naran Singh (19), and Keshwesarendra Sahi v. Ranee Debendra Bala Dasi (20). That principle has obviously no application to the circumstances of this case; nor can the provision of sec. 99, C.P.C, be invoked successfully, because as pointed out in Barendra Nath Bose v. Aghore Nath Bose , when the Court proceeds to make a decree against an infant who is not properly represented by a guardian as contemplated by the Code of Civil Procedure, the Court act a without jurisdiction, inasmuch as a decree is made against a person who is in essence not before the Court.

It has been finally urged that the fact that the proposed guardian had preferred an appeal to the Subordinate Judge may be taken as an index that he had consented to his appointment as guardian for the suit. We are unable to give effect to this contention. No doubt the proposed guardian preferred an appeal on behalf of the infant, but we have the equally important fact that he never appeared during the trial of the suit and took no steps to protect the interest of the infant. The view we take is supported by the decision of the Madras High, Court in Sharoof v. Raghunatha . We hold accordingly that the decree made against the Appellant can not be maintained and must be vacated.

The result is that this appeal is allowed, the decrees of both the lower Courts set aside, only in so far as the Appellant is concerned, and the suit remitted to the Court of first instance to be retried against him. The Appellant is entitled to his costs in this Court from the Plaintiff Respondent. We make no order as to his costs in the Courts below.

It is conceded that this judgment will govern second Appellants Nos. 2377 to 2379 of 1919; a decree will be drawn up in similar terms in each of those cases.