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‑‑ S. 99 & O. XXXII, R. 3‑Guardian ad item of minors defen dant‑Omission to pass final order‑Effect‑Court, held, would be bound to appoint guardian ad litem of .minor in suit having been brought against him‑‑Object of such appointment is that minor would have proper representation in a suit as Court is to appoint a proper person to be his guardian‑Grandfather of minors through whom minors were sued was allowed to proceed with defence of case in capacity of guardian without objection from trial Court whose duty was to appoint guardian ad item‑Irregularity if any, as to omission to pass formal order appointing grandfather of minors as guardian ad litem would stand covered by S. 99, Civil Procedure Code, 1908, merits of case or jurisdiction of Court having not been affected.

Damu Diga "v. Vakrya Nathu and others A I R 1920 Bom. 54 ; Pir Taj‑ud‑Din and another v. Khambatta and others A I R 1938 Lah. 515 ; Allah Ditta etc. v. Malik Ahmad eakhsh, etc. P L D 1975 Lah. 403 ; Ghulam Muhammad and another v. Muhammad Feroze and 2 others P L D 1963 Lah. 164 ; Dhanpat Ma/ v. Khazana and others 1897 P R Precedent No. 67 p. 308 ; P. R. No. .100 of 1882 ; I L R 5 Cal. 450 ; I L R 4 All. I ; I L R 14 Cal. 204 ; I L R 9 All. 508 ; 4tia Muhammad v. Chiragh an4 2 others 1985 C L C 10 ; Ahmad Khan and others v. Jaffar Abbas and others 1983 C L C 3043 ; Syed Ahmed v. Prafulla Kumar De and others P L D 1961 Dacca 698 and Munnu Lai and others v. Ghulam Abbas and another 1 L R 32 Ail. 287 (P C) ref.

Mst. Bibi walian and others v. Banke Behari Pershad Singh and others 30 I A 182 rel.

(b) Civil Procedure Code (V of 1908}‑

‑‑ S. 100‑Punjab Pre‑emption Act (I of 1913), S. 25‑Appellate jurisdiction, exercise of ‑Determination by First Appellate Court of sale price having been fixed in good faith or actually p‑rid being question of fact, based on discussion of evidence, held, would render ascertainment of market value unnecessary requiring no interference in second appeal.

Khadam Hussain and others v. Gulab and another P L D 1954 Lah. 171 ; Malik Wahid Bakhsh v. Ch. Muhammad Shafi P L D 1976 Lah. 1069 and Malik Hussain and others v. Lala Ram Chand and others P L D 1970 S C 299 ref.

Amjad Hussain Syed for Appellants.

Maqbool Elahi Malik for Respondents.

Date of hearing : 20th May, 1986.

This judgment will dispose of two appeals i.e. R.S.A. No. 151 of 1982 entitled Nadeem Shahid etc. v. Muhammad Sharif and another and R. S. A. No. 182 of 1982 entitled Muhammad Sharif and another v. Nadeem Shahid and others which have been brought from a judgment dated 25‑5‑1982 whereby Ch. Anwar Ali, Additional District Judge, Sheikhupura accepted an appeal filed by the vendees against the decree dated 1‑7‑1980 passed by tie learned Civil Judge and dismissed the other appeal fried by the pre‑emptors, on the question of the price of the suit land.

2. The facts briefly are that Muhammad Sharif and another instituted a suit on 27‑1‑1976 against Nadeem Shahid and others in the civil Court at Sneikhupura, for possession through pre‑emption of the land measuring 120 Kanals 17 Marlas situated at Pir Kot, Tehsil and District Sheikhupura sold by one Tanvir Ahsan to Nadeem Shahid and others in consideration of Rs. 1,50,000, vide a registered sale‑deed, dated 28/29‑10‑1975, alleging a superior right that they were owners in the estate whereas Nadeem Shahid and others were not and that the sale in fact took place for Rs. 50,000 which was the amount as actually paid, rather than Rs. 1,50,000. The suit was resisted by Nadeem Shahid and others who raised objections that the suit was time‑barred, the same was for a partial pre‑emption and the suit was Benami. They denied the superior right as claimed by Muhammad Sharif and another maintaining that they were also owners in the estate. They pleaded waiver and as to the consideration they stated that the transaction was struck at Rs. 1,50,000 which, was the price fixed in good faith and actually paid.

3. The learned Civil Judge decreed the suit on 1‑7‑1980 by holding that the suit as brought was not for partial pre‑emption, the suit was within time and that was not proved that the suit was Benami, The pre‑emptors had superior right of pre‑emption qua the vendees. The vendees had failed to prove that the pre‑emptors had waived their superior right. The vendees had also failed to prove that the suit land was sold for Rs. 1,50,000. The market value of the land was Rs. 55,000. The improve ments were not proved since no evidence was led. He decreed the suit on the sale price determined at Rs. 55,000,

4. Both the pre‑emptors and the vendees filed the appeals from the above said decree, both came to be decided by the learned Additional District Judge, Sheikhupura challenging the sale price as determined by the learned Civil Judge. The pre‑emptors desired that to be fixed at Rs. 50,000 excluding Rs. 7.000 as damage caused to the land and the vendees at Rs. 1,50,000 who also raised a ground that despite an objection having been taken as to the valuation of the suit for the purposes of court- fee and jurisdiction no issue was framed by the trial Court.

5. The learned Additional District Judge dismissed the appeal filed by the pre‑emptors and accepted the appeal filed by the vendees after rejecting the contention of the vendees as to the non‑framing of the issue by reversing the fitting of the learned Civil Judge on the question of sale price and determining the same at Rs. 1,50,000.

6. Mr. Amjad Hussain Syed, the learned counsel for Nadeem Shahid and other vendees has contended in Appeal No. 151 of 1982 only that the pre‑emptors had filed the suit against the minors through their grandfather, the learned Civil Judge under Order XXXI1, rule 3, C. P. C. as a matter of duty was bound to appoint a guardian ad litem which was not done, there fore, the impugned decree is liable to be set aside and the case remanded to proceed afresh with the suit after appointing a guardian ad litem of the minor vendees since the provision as to the appointment of a guardian ad litem is mandatory. In support of the contention after referring to the provision the learned counsel has cited Damu Diga v. Vakrya Nathu and others (A I R 1920 Bom. 54) wherein it has been held that the provisions of Order XXX11, rule 3, C. P. C. are imperative and without complying with those provisions the Court could not make any decree as between the plaintiff and a minor defendant. Pir Taj‑ud‑Din and another v. Khambatta and others (A I R 1938 Lah. 515) in which it has been observed that a decree obtained against an unrepresented minor is a nullity, Allah Ditta etc. v. Malik Ahmad Bakhsh, etc. (P L D 1975 Lah. 401) in which it was observed that a decree against the minors and an insane person could not be executed under the law unless they were duly represented before the Court. Ghulam Muhammad and another v. Muhammad Feroze and 2 others, (P L D 1983 Lah. 164) in which it has been said that a per usal of (rule 3 of Order XXXII) will indicate that whenever a Court finds that a defendant in a suit before it is a minor it must appoint a proper person as a guardian for him during the suit. It is a duty cast upon the Court itself even where a plaintiff omits to indicate in his plaint that one or more defendants are minors. In order to discharge its duty in this regard the Court can call upon the plaintiff to furnish a list of the relatives of the minor or other persons most suitable to look after his interest. Any decree passed against an unrepresented minor is a nullity.

7. Before the contention of the learned counsel is determined it is necessary to mention a few facts appertaining to the case. That the pre‑emptors sued the minor vendees namely Nadeem Shahid (minor) son of Muhammad Latif, Manzoor Ahmad (minor) son of Rehmat Ullah and Waheed Ahmed (minor) son of Muhammad Saeed through Sh. Abdul Karim real grandfather of the minors. No question was raised before the learned Civil Judge as to the appointment of ad litem guardian by the grandfather who actively defended the suit on behalf of the minors. The fathers of the minors did not come forward in that behalf. It appears that the pre‑emptors sued them through their grandfather because of the mentioning in the sale‑deed that the said minors were purchasers of the land in question through Sh. Abdul Karim and in view of the endorsement by the Registrar showing that an amount of Rs. 1,50,000 was received by Tanveer Ahsan vendor from Sh. Abdul Karim on behalf of the minors. However, no such objection was raised in the lower appellate Court nor here in the appeal. 'this point has been taken up in arguments for the first time by abandoning all the grounds taken in the memorandum of appeal in this Court.‑ In the memorandum of appeal filed on behalf of the minors in this Court para. No. 1 runs as "the appellants are minors and are therefore, unable to prosecute the appeal themselves. Sh. Abdul Karim is their real grandfather through whom this appeal is being filed as next friend of the minors. The interest of the next friend does not in any way clash with that of the minors".

8. The learned counsel for Muhammad Sharif and another respon dents in the former appeal in reply to the contention raised by the learned counsel for the appellants has submitted that the suit was filed by the respondents against the minors naming Sh. Abdul Karim as their guardian through whom the minors had purchased the property. The very fact that the court allowed the suit to proceed as such is to be taken as implying that the learned trial Court had treated Sh. Abdul Karim as guardian ad litem even if no formal order had been passed to that effect. The irregularity, if any, committed in that regard is covered by section 99, C.P.C. as such no reversal of the decree is to take place. No prejudice has been caused to the minors in the conduct of the proceedings whereby Sh. Abdul Karim has acted as guardian and defended the minors. The learned counsel has relied in support of his reply upon Dhanpat Mal v. Khazana and others (1897 P.R. Precedent No. 67 308), in this case the five sons of one Raman sued for three‑fifths of their father's land held by Dhanpat Mal the defendant under the sale‑deeds executed by their mother, on the ground that they were minors and their mother had no power to deal with their land. As regards the first sale Dhanpat Mal vendee brought a suit against Raman's five sons naming their mother Mst. Buti as their guardian, and got a decree for possession. There was no formal order appointing Mst. Buti, as guardian ad litem, but in the judgment the question was discussed and Mst. Buti was held to be the guardian of the minors. The lower Courts, following Punjab Record No. 100 of 1882, had held that owing to there being no formal order appointing Mst. Buti, guardian ad litem, the decree was not binding upon the minors. The question was considered by a Full Bench. The learned Judges observed that the P. R. No. 100 of 1882, was based on I L R 5 Cal. 450 and I L R 4 All. 1, which decisions were overruled or differed from by later judgments of the same Courts, I L R 14 Cal. 204 and I L R 9 All 508, so the learned Judges/ regarded themselves as not bound to follow the Chief Court ruling. Following the latter Calcutta and Allahabad decisions, in which that was held that the want of a formal order appointing a guardian ad litem was not fatal to the suit when that appeared on the face of the proceedings that the Court had sanctioned the appointment (Calcutta), in Allahabad decision that was held that in a suit on behalf of a minor by a relative, the fact of the Court allowing such a suit to proceed was to be taken as implying that the necessary permission had been given‑even if such permission had not in fact been given, the irregularity was covered by section 578, Civil Procedure Code, the learned Judges were of the view that the absence of a formal order appointing Mst. Buti, guardian ad litem, did not vitiate the proceedings and the decree was binding on the minors. Atta Muhammad v. Chiragh and two others (1985 C L C 10), in this case it was held that an omission to appoint the father who represented the minor as a guardian ad litem was a mere irregularity when no prejudice had been caused to minors' interest. Ahmad Khan and others v. Jaffar Abbas and others (1983 C L C 3043), in this case it has been observed,

.It is true that the learned trial Judge should have passed a formal order appointing respondent No. 1 as the guardian ad litem for respondent No. 2, but his failure in this ,regard can in the circumstances of this case be regarded only a mere irregularity. It is common ground that interests of respondent No. 1 in the suit were identical with those of respondent No. 2. In the plaint it was unequivocally stated that respondent No. 2 was being sued through respondent No. 1. This position was never repudiated by respondent No. 1 and the fact that he filed a written statement on behalf of respondent No. 2 as well clearly indicates that he had accepted this assignment. He was the close male relative of respondent No. 2 and the most appropriate person to look after his interests. It cannot, therefore, be said that the entire proceedings stand vitiated just because the trial Court failed to make a formal order appointing him as the guardian ad item for respondent No. 2."

Syed Ahmed v. Prafulla Kumar De and others (P L D 1961 Dacca 698), in this case it has been held :

The non‑recording of a formal order by the learned Subordinate Judge of appointing defendant No. 8 as the guardian of the minors may, at best, be an irregularity in the facts and circumstances of the case, and the same is curable under section 99 of the Code of Civil Procedure."

Munnu Lal and another v Ghulam Abbas and another (I L R 32 All. 287 (P C) in this case the minors on attaining majority had brought a suit to set aside a decree and a sale in execution thereunder, the absence of an affidavit such as was required by the provisions of section 456 of the Civil Procedure Code (Act XIV of 1582) at the time the application for the appointment of a guardian was made was regarded as not sufficient to render the proceedings illegal and void against the minors on the ground that they were not properly represented therein.

The rule 3 of Order XXXII, C.P.C. is to the effect that :‑

(1) 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.

(2) An order for the appointment of guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff.

(3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.

(4) No order shall be made on any application under this rule except upon notice to minor and to any guardian of the minor appointed or declared by an authority competent in that behalf, or 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.

(5) A person appointed under sub‑rule (1) to be guardian for the suit for a minor shall unless his appointment is terminated by retirement, removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any appellate or revisional Court and any proceedings in the execution of a decree.

There is no doubt that the rule places a duty on the Court to appoint a guardian ad item of a minor in a suit having been brought against him. The very object of the rule is that the minor goes by a proper representa tion in a suit as the Court is to appoint a proper person to be a guardian. It is there that neither an application was moved for the appointment of a guardian ad /item nor any order the learned trial Court of its own had A passed but one thing is clear that Sh. Abdul Karim through whom the minors were sued was in a way allowed to proceed with the defence of the case in the capacity of a guardian without any objection from the learned trial Court whose duty was to appoint a guardian ad litem in the circums tances of the case. It appears that the learned trial Court was satisfied with Sh. Abdul Karim 'to act as guardian of the minors for the purpose of the said suit probably due to the fact that the minors had purchased the pro perty subject‑matter of the suit through their grandfather Sh. Abdul Karim and the amount of Rs. 1,50,000 was passed by the said person on behalf of the minors as was expressed in the deed ant the endorsement made on the deed by the Sub‑Registrar. It is worth mentioning that in its judgment the learned trial Court had mentioned Sh. Abdul Karim as the guardian ad litem of the minor vendees. It is at least so three times which necessarily means that the learned trial Court had been treating Sh. Abdul Karim as guardian ad litem, even though no formal order had been drawn to that effect. From the position Sh. Abdul Karim occupied he could otherwise be regarded as a proper person to be a guardian of the minors for the purposes of the defence in the suit. Now whether the absence of a formal order by the learned trial Court to the effect of appointing him as a guardian ad item vitiated the proceedings, the answer to view of the decision relied upon by the learned counsel for the respondents in the former appeal is to the negative. It has not been shown that Sh. Abdul Karim through whom the minors purchased the property and who acted as a guardian of the minors to that behalf was not capable of acting as a guardian for the purpose of the suit nor any specific prejudice to the interest of the minors has been pointed out because of his acting as a guardian of the minors in the suit, the proceedings in which, were conducted by Ch. Saleem Ahmad Faizi, Advocate, Sheikhupura as engaged by the guardian. The matter which has been brought into issue here appears to be settled long before in a decision by the Privy Council in 1903. Mst. Bibi Walian and others v. Banke Behari Pershad Singh and others (30 1 A 182), in this case one of the questions in issue was that whether the plaintiffs were properly represented in the suit and execution proceedings thereunder and if not whether those were void on that ground. The learned Subordinate Judge was of the view that though no formal order appointing the mother to be a guardian ad item of the infants had been drawn up, the Court must be deem to have sanctioned the appointment, and that the want of a formal order was at most an irregularity, which could not invalidate the proceedings in the absence of proof of prejudice having accrued to the then plaintiffs but the High Court on appeal entertained that. that was necessary for the Court to see that a proper guardian was appointed to protect the interests of the minors. Section 443 of the Code of Civil Procedure was imperative on that point ; the Court after satisfying itself of the fact of minority, was bound to appoint a proper person to act on behalf of the minor in the conduct of the case. Their Lordships of the judicial Committee expressed that they entirely concurred, and they desired to impress upon all the Courts in India the importance of following strictly the rules laid down in the section referred to but further expressed that, that was quite another thing to say that a defect in following those rules was necessarily fatal to the proceedings. While differing with the High Court their Lordships said that they were unable to concur to the conclusion at which the learned judges arrived. The then plaintiffs were substantially sued in the former suit and the alleged fraud had been negatived. That appeared to their Lordships that they were effectively represented in that suit by their mother, and with the sanction of the Court; and for the reasons given by the First Court their Lordships attached no importance to the certificate of Durga Dutt. There was nothing to suggest that their interests were not duly protected. The only defects which could be pointed out were that. no formal order appointing the mother of the then plaintiffs to be their guardian ad litem was shown to have been drawn up ; and that, that was not definitely shown that any attempt was made to serve the summons in the former suit upon the infants personally or upon their mother, a pardanashin lady, before serving that upon Gajadhur, the only adult male member and the Karta of the family. That had not been shown that the alleged irregularities caused any prejudice to the then plaintiffs ; nor indeed could there well be any, since that had been found that the original debt was one for which the then plaintiffs were liable. Their Lordships were of opinion that the defects of procedure alleged in that case were at most irregularities which under section 578 of the Civil Procedure Code would not have furnished ground for reversing the proceedings in the former suit.

9. In view of the foregoing reasons, the law obtaining on the issue having been raised in this Court and the facts specifically narrated in para. No. 6 of this judgment the contention of the learned counsel for the appellants in the former appeal has no force. The irregularity if any as to the omission to pass a formal order appointing Sri. Abdul Karim as guardian ad item stands covered by section 99, C.P.C., as the merits of the case or the jurisdiction of the Court have not been affected. The result is that Appeal No. 151. of 1982 stand dismissed but without any order as to costs.

10. In the latter appeal filed by the pre‑emptors Muhammad Sharif and another they have challenged the finding of the learned Additional District Judge whereby he held that the sale price fixed in good‑faith and actually paid was Rs. 1,50,000 and the same was the market value of the suit land after setting aside the findings of the learned trial Court on issues Nos. 6 and 7 which were that whether the ostensible sale price of Rs. 1,50,000 was fixed in good faith or actually paid and if issue No. 6 was not proved then what was the market value of the suit land, regarding which the learned trial Court had‑ returned its findings that the vendees had failed to prove that the suit land was sold for Rs. 1,50,000 and that the market value of the suit land on the basis of the evidence adduced in that behalf was Rs. 55,000.

11. The learned Additional District Judge while differing with the learned trial Court observed that so far as the payment of the sale price was concerned Exh. P. 1, the copy of the disputed sale‑deed proved that the mentioned sale price consisting of Rs. 1,50,000 was paid before the Sub‑Registrar which carried a presumption of truth under section 114 of the Evidence Act and the law on the point was that the Court was to presume that the endorsement was correct unless there was a very cogent evidence to the contrary against which the arguments before him was that none of the marginal witnesses of the sale‑deed had been produced. One of the marginal witnesses of the sale‑deed had been produced by the pre emptors as P.W. 4 Maula Dad who stated that an amount of Rs. 1,50,000 paid before the Sub‑Registrar but after the registration of the sale‑deed, some amount was returned to the vendees. The learned trial Court reified on the statement of that witness out the learned Additional District Judge did not agree with the learned trial Court because the witness had stated that afterwards some amount was returned to the vendees but he was unable to give the exact amount which was returned and tell about the persons who were present at the time of return of the money. The witness had also admitted that he was not present at the time of the bargain out stated that the parties had told him that the original price was Rs. 50,000. The statement of the witness was discarded because that was regarded as hearsay. D.W. 1, D. W. 2 and D.W. 3 had stated that the bargain was struck at Rs. 1,50,000 which amount was paid before the Sub‑Registrar. The pre‑emptors had in all examined six P.Ws. in support of their version as to the price. P.W. 1 did not state anything about the factum of sale price but said that the vendor demanded Rs. 50,000 from him as the sale price of the land. P.W. 2 deposed that he purchased another land measuring 50 Kanals for Rs. 16,000. P.W. 3 stated that the vendor of that land demanded Rs. 50,000 as the sale price from him but he was prepared to purchase the land at Rs 40,000. P. W. 5 was given up P. W. 6. one of the pre‑emptors simply stated that the disputed sale was effected for Rs. 50,000 but he further stated in his cross‑examination that he came to know about one month after the bargain that the sale was effected for Rs. 50,000. P.W. 7 Ch. Abdul Aziz, Local Commissioner had only verified the position of the land at the spot. The learned Additional District Judge was of the view that practically there was no rebuttal from the pre‑emptors' side to the effect that the mentioned sale price was not fixed in good faith or actually paid except the statement of Maula Dad P. W. 4 who stated that some amount was returned after the attestation of the sale‑deed which was not worth relying for the reasons already mentioned above. That was also argued before the learned Additional District Judge that the market value of the such land came to Rs. 47,800 as stood proved from the copies of the sale‑deeds produced by the pre‑emptors, The price as given in the sale‑‑deed way three times excessive than the market value assessed from the copies of the registered sale‑deeds so notwithstanding that the whole sale price was paid before the Sub‑Registrar, the Court was to discard that. The learned Additional District Judge opined that so far as the payment of the sale price was concerned that had been proved on the record and the land was situated within the Municipal limits of Sheikhupura and most of the Khasras Nos. were located on the back of the metalled road and the vendees had purchased that for raising a workshop over that, and that according to the learned Judge could be taken as plausible explanation by the vendees for giving the sale price as entered than the so‑called market value. The suit land was 120 Kanals and 17 Marlas so the sale price as entered was not an excessive one.

12. The learned counsel for the pre‑emptors appellants has contended. that as excessive price was 'entered in the sale‑deed and even if that was shown that Rs. 1,50,000 were passed before the Sub‑Registrar the case could only be decided on the market value about which certain sale‑deeds had been placed before the trial Court and the trial Court was right accordingly in fixing the market value of the. suit land as Rs. 55,000 and recording the same as the sale price of the land as such the finding of the learned Additional District Judge is liable to be set aside because it is not in keeping with the evidence adduced citing the other sale‑deeds. The learned counsel has relied upon Khadam Hussain and others v. Gulab and others (P L D 1954 Lah. 471) and Malik Wahid Bakhsh v. Ch. Muhammad Shafi (P L D 1976 Lah. 1069).

13. The learned counsel for the respondents has in this behalf support ed the finding of the learned Additional District Judge as it is.

14. As the learned Additional District Judge came to the conclusion in view of the evidence on a question of fact that the price i.e. Rs. 1,50,000 was fixed in good‑faith and actually paid which view can be regarded as tenable according to his discussion of the evidence, once this is come to then the further ascertainment as to the market value becomes unneces sary. The matter in this behalf is clinched by a decision of the August Supreme Court Malik Hussain and others v. Lala Ram Chand and others (P L D 1970 S C 299) in this case the learned Supreme Court after analysing the provisions of subsections (I) and (2) of section 25 of the Punjab Pre‑emption Act, 1913, observed,

"It appears from these provisions that if the Court finds that the price mentioned in the deed of sale was, in fact, paid, then, the pre emptor, in order to pre‑empt, shall be required to pay that price. and it shall not be necessary for the Court to determine the market value of the property and fix the price for the purpose of pre emption."

This appeal, therefore, is dismissed but without any order as to costs.

A.A. Appeal dismissed.

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