"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 ."
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, and that there has been a substantial representation of the minor in the former suit.
IN THE HIGH COURT OF MADRAS
Second Appeal No. 1153 of 1968
Decided On: 04.02.1972
Rangammal Vs. Minor Appasami and Ors.
Hon'ble Judges/Coram:
Raghavan, J.
Citation:AIR 1973 Madras 12
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, I.L.R.(1903)Cal 1021 . 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 MANU/WB/0168/1928 : AIR1928Cal844 , (Shaik Abdul Karim v. Thakurdas) & ILR 37 All 179 AIR 1915 All 62 ; (Bhagwan Dayal v. Param Sukh) Wallace, J. in Thirumalacharyulu v. Ammisetti Venkiah, 46 MLJ 363 MANU/TN/0901/1924 : 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 MANU/SC/0352/1967 : [1968]2SCR572 , 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 , 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 MANU/WB/0115/1965 : AIR1965Cal562 a similar view was taken. Banerjee, J. 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 ."
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, and 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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