Nov - High Court of Judicature at Allahabad

3 All] Smt. Katori Devi V. Nawab Singh and others 977
finds that such appointed guardian should
not act, it has to appoint the natural
guardian of the minor, if qualified, and
where there is no such guardian the
person in whose care the minor is as the
guardian.
13. In the facts of the present case, it
is apparently clear that the minor Shanker
was in the care of his real sister as the
father and mother had predeceased the
grand parents. Further the minor was
impleaded through is real sister and no
objections were filed to such impleadment
at any point of time by the respondentdefendants.
Suit was contested all along
and having lost before the trial court.
Civil appeal was also preferred through
the same guardian, namely, his real sister.
The civil appeal has also been dismissed.
The Subsequent purchaser, who has
preferred the second appeal objects to the
acting of the real sister as the guardian.
14. In the facts of the present case
the Court records that the real sister had
right to act as the guardian of the minor
brother in view of Order XXXII Rule 4A
of the Code of Civil Procedure and
therefore it is in this background that
appropriate orders were not passed on the
application being paper no. 98A, as the
real sister responded after substitution to
represent the interest of minor brother,
Shanker. It is legally to be presumed that
she was authorised by the Court to act as
such. In the opinion of the Court,
objection now raised by co-defendant is
hyper technical in nature and the courts
below are legally justified in rejecting the
same.
15. On a simple reading of the
aforesaid provision, this Court may record
that it is only an enabling provision,
which permits the representation of the
minor in a suit, in case it is found that
natural guardian is not representing the
interest of minor to the best of his interest
or they have interest themselves in the
dispute in question. Such enabling
provisions cannot be read so as to suggest
that if interest of minor is already
represented by a natural guardian, even
then an application under Order XXXII
Rule 3 of the Code of Civil Procedure is
required to be filed and any orders on
such application are mandatory. If the
interest of minor is protected by a natural
guardian and there is no challenge either
by the minor or by the plaintiff to such
representation of the minor by the natural
guardian, the provisions of Order XXXII
Rule 3 of the Code of Civil Procedure will
have no application.
Learned counsel for the appellant
contends that there has to be an order by
the Court, permitting the natural guardian
to represent the interest of the minor.
16. I am of the considered opinion
that such orders are procedural in natural
and cannot be permitted to be used to
defeat the judgment and decree of the
Court at the behest of a third person, who
is neither the minor nor his guardian of
the minor, more so when there is nothing
on record to establish that the natural
guardian was not acting in the best
interest of the minor or that she had some
interest in the suit proceedings.
Learned counsel for the appellant has
placed reliance upon the following
various judgements in support of the case:
(1) Ram Chandra Arya vs. Man Singh &
Anr. Reported in AIR 1968 SC 954,