Full Judgment
Lokur, J.
1. This appeal arises out of a suit to recover possession of survey No. 1. plot No. 2, of the village Valwadi, purchased by the plaintiff at an auction held in execution of his own mortgage decree against the minor defendant. The defendant's father mortgaged the land to the plaintiff in 1921 and died in April 1929, leaving behind his old mother Zumkabai, his young wife Sonabai, aged about 17 or 18, and a minor son, the defendant. The land was then transferred in the Record of Rights to the name of the minor defendant, represented by his grandmother Zumkabai as his guardian. His mother's brother Badhu made an application to the District Court that Zumkabai was too old to manage the property, and he was appointed as the defendant's guardian in December 1929. One Bhivsan stood surety for him and the guardian certificate was duly granted to him, but Zumkabai continued in possession of the defendant's property, as Badhu lived at Pasthe, 45 miles away from Valwadi, In 1932 Zumkabai applied to the District Court to cancel the appointment of Badhu as the defendant's guardian as he was a man of vices, and lived far away from Valwadi where the minor's property was situated, but her application was rejected. Yet she continued in possession as before. In 1935 the plaintiff filed Suit No. 259 of 1935 against the minor defendant to recover his mortgage amount. In that suit Zumkabai was appointed the defendant's guardian ad litem and she defended the suit on behalf of the minor defendant. The suit ended in a decree for the plaintiff, and in execution of that decree in darkhast No. 759 of 1938, the plaintiff himself purchased the mortgaged land with the permission of the Court on June 23, 1939. In the execution proceedings also Zumkabai acted as the defendant's guardian ad litem. About a month later, on July 17, 1939, Badhu applied to the District Judge that as he had not been able to get possession of the minor's property, the Deputy Nazir of the District Court should be appointed as the minor's guardian in his place. Accordingly the Deputy Nazir's appointment was made on August 8, 1939. He obstructed the plaintiff when he proceeded to take possession of the land which he had purchased at the auction. Hence the plaintiff filed the present suit and the Deputy Nazir contended on behalf of the minor defendant that the appointment of Zumkabai as the defendant's guardian ad litem in the plaintiff's suit No. 259 of 1935 and darkhast No. 759 of 1938 in contravention of the mandatory provisions of Order XXXII, Rule 4(2), of the Civil Procedure Code, was illegal, and all those proceedings being thus vitiated, the plaintiff acquired no title to the land in suit by his auction purchase. The trial Court held that the appointment of Zumbakai as the defendant's guardian ad litem, when Badhu was his appointed guardian, was only an irregularity, and as it had caused no prejudice to the defendant, the auction sale was valid and binding on the defendant. The plaintiff was, therefore, given a decree for possession and mesne profits. But in appeal the learned Assistant Judge took a different view. He held that it was not a mere irregularity, but an illegality which vitiated the proceedings and that the auction sale was void. He, therefore, allowed the appeal and dismissed the suit with costs.
2. In this second appeal by the plaintiff, the short question for decision is whether the auction sale is void by reason of the appointment of Zumkabai as the defendant's guardian ad litem in violation of the provisions of Order XXXII, Rule 4(2), of the Civil Procedure Code. That sub-rule says:
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.
3. There is a sharp conflict of judicial opinion regarding the effect of disregarding the provisions of this sub-rule. According to the High Courts of Allahabad, Calcutta and Patna, the violation of this provision is only an irregularity, and does not, by itself, vitiate the decree, in the absence of any proof of prejudice to the minor. The High Court of Madras has, on the other hand, held that in such a case the appointment is illegal and the decree obtained against the minor and all subsequent proceedings in execution of that decree are void. The trial Court adopted the former view while the learned Assistant Judge preferred the latter.
4. In Bhimaji v.Hussain Saheb I.L.R.(1920) Mad. 808 on which the learned Assistant Judge relied, both Sadasiva Ayyar and Spencer JJ. purported to follow the decision of the Privy Council in Rashid-un-nissa v. Muhammad Ismail Khan 11 Bom. L.R. 1225. In the latter case the guardian ad litem was a married woman, and at that time there was a definite provision in the Code of Civil Procedure, 1882, that no married woman could act as the guardian of a minor in the course of proceedings in a Court of law. A married woman, being absolutely disqualified, her appointment was held to be an illegality vitiating the whole proceedings. Referring to this case, and the provisions of Order XXXII, Rule 4(2), of the Civil Procedure Code, 1908, Sadasiva Ayyar J. observed in Bhimaji's case (p. 809):-
The legislature clearly made this provision, because it was strongly of opinion that it was not for the minor's welfare that anybody else except such certificated guardian, where one exists should act for a minor defendant. Where there is such a clear prohibition by the legislature, the Court's ignorance of the existence of a certificated guardian cannot be taken into consideration in deciding the question whether there has been a proper representation of a minor in the suit, any more than the ignorance of a Court under the old provision that a woman appointed by it as a guardian was a married woman could affect the decision of the question whether the minor was properly represented by such a woman.
5. With all respect, I think that there is no [analogy between the two cases. Order XXXII, Rule 4(1), sets forth the qualifications of a person who can act as next friend of a minor or his guardian for the suit. It says:
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:
Provided that the interest of such person is not adverse to that of the minor and that he is not, in the case of a next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff.
6. Even when there is a certificated guardian, as pointed by Costello J. in Samarendranath Mitra v. Pyareecharan Laha I.L.R.(1934) Cal. 1023 there is no inherent disqualification in all persons other than the certificated guardian to be a guardian ad litem, the only qualifications laid down being that the person must be of sound mind, must have attained majority, must have no interest adverse to that of the minor and must not be arrayed as an opposite party in the same litigation. In the plaintiff's suit and darkhast against the minor, Zumkabai was not absolutely disqualified from representing the minor defendant who was her grandson and who is found to have had no interest adverse to his. Although she had not handed over possession of the minor's property to his certificated guardian Badhu, she did take care to preserve it for the minor's benefit, and it has been found that she defended the suit and the darkhast for the benefit of the minor defendant. It is neither alleged nor proved that any prejudice was caused to the minor, or that Badhu or some one else might have contested the plaintiff's claim better than Zumkabai. It may be conceded that if the Court had known that Badhu had been appointed the minor defendant's guardian by the District Court, it might not have appointed Zumkabai as his guardian ad litem, or would have given reasons why she was appointed in preference to Badhu. It may even be conceded that the Court did not apply its mind to this question since it was evidently not aware of Badhu's appointment and in the Record of Rights Zumkabai was still shown as the minor's guardian. But according to the ruling in Dammar Singh v. Pirbhu Singh I.L.R.(1907) All. 290 the appointment of Zumkabai as the minor defendant's guardian ad litem, in ignorance of Badhu's4 appointment by the District Court as his guardian under the Guardians and Wards Act, was mere irregularity and did not vitiate the proceedings. Accepting this as the correct view, Allsop J. observed in Dharampal Singh v. Mool Chand [1942] All. 509 :-
The person proceeding against the minor might, as is alleged in this case, have no knowledge at all about the appointment of guardian by competent authority, and, if that was so, it would be most unfair to hold that the proceedings were void if the4 minor was represented by a person who was able and was thoroughly willing to represent him and who did not bring to the notice of the court the fact that there was another person appointed by competent authority to be the guardian of the minor.
7. As remarked in Md. Abdus Salam v. Kamalmukhi : AIR1918 Pat520 the appointment of a guardian of a minor for purposes of suits is really a question of procedure. Hence in Jogeshwar Narain v. Lala Mooralidhar (1907) 7 C.L.J. 270 Woodroffe J. observed (p. 273):-.the passing over of the certificated guardian was not...more than an irregularity and would not of itself vitiate either the decree or a sale consequent upon such decree.
8. I respectfully agree with this view which is in no way in conflict with the decision of the Privy Council relied upon in Bhimaji v. Hussain. It is one thing to say that a minor is not represented at all if represented by a person who is wholly disqualified to represent him as in the Privy Council case, and quite another to say that he is not represented at all if represented by a person whom the Court in its discretion could appoint to represent him but might not have appointed him if it had come to its knowledge that there was a certificated guardian appointed by competent authority. In the absence of any allegation of fraud or prejudice to the minor caused by such an irregularity, the proceedings must be regarded as valid and the auction sale upheld.
9. I allow the appeal, set aside the decree of the lower appellate Court and restore the decree of the trial Court. The respondent shall pay the costs of the appellant in this Court and in the lower appellate Court.