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 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
Print Page
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 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
Print Page
