A minor's interests may be effectively represented by a guardian or sibling, and failure to formally substitute a deceased guardian does not invalidate a decree if the minor's interests are protected.

ORAL JUDGMENT

Date : 15-07-2024

Heard learned counsel for the appellants, learned counsel for the respondents and learned counsel for the intervenor.

2. The present second appeal has been filed against the appellate judgment and decree dated 02.08.1988 and 08.08.1988, passed and prepared by, the Additional District Judge-II, Madhepura in Title Appeal No.5/1985, arising out of original Judgment and decree dated 27.07.1984 and 13.08.1984, passed and prepared by the Subordinate Judge, Madhepura in Title Suit No.18 of 1978.

3. The present second appeal has been filed against the judgment of reversal.

4. In Title Suit No.18 of 1978, the present appellants were the plaintiffs and present respondents nos. 1 to 14 were defendants. The said title suit was decreed in favour of the plaintiffs (present appellants), then defendant nos. 1 to 9 (present respondent nos.1 to 9) preferred title appeal, being aggrieved and dissatisfied with the original judgment and decree dated 27.07.1984 and 13.08.1984, passed by Subordinate Judge, Madhepura in Title Suit No.18 of 1978.

5. The said title appeal was numbered as Title Appeal No.5 of 1985, in which the appellants were the present respondent nos. 1 to 9. Respondents first set were appellant nos. 1 to 6 and respondents second set were respondent nos. 10 to 14. The said title appeal was allowed in favour of the appellant of the title appeal (respondents first set in the present second appeal) and the judgment and decree dated 27.07.1984 and 13.08.1984, passed in Title Suit No.18 of 1978 was set aside.

6. Thereafter, the present appellants (original plaintiffs) had preferred the present second appeal in which they had made the appellants of the title appeal as respondents first set (present respondent nos. 1 to 9) and respondent nos.10 to 14 as respondents second set, only challenging the judgment and decree dated 02.08.1988 and 08.08.1988 passed and prepared in Title Appeal No.5/1985

7.This second appeal was admitted vide order dated 06.09.1989 in which the following substantial questions of law have been framed:-

Substantial question No.1:-

“Whether on account of the alleged death of the guardians of appellant Nos.6 and 7 who were respondent Nos.6 and 7 in the court below, the appeal became defective?”

Substantial question No.2:-

“Whether the decree under appeal is illegal on account of the fact that the minors were not represented at all?”

8. Learned counsel for the appellants submits that the lands situated in village Jhitkia, P.S.+District Madhepura appertaining to C.S. khata No.47 and 48 (R.S. khata No.289 and 291) total area 3 Bigha, 16 Kathaand 19 Dhur is in question. Counsel submits that since substantial questions of law have been framed, therefore, he is confining his argument only on the substantial questions of law, so that the said substantial questions of law be decided in favour of the appellants. Counsel further submits that Title Suit No.18 of 1978 was filed originally with seven plaintiffs in which, Most. Shakuntala Devi, widow of Late. Shri Rameshwar Jha was the mother of her two minor sons, namely, Chandrakant Jha and Deokant @ Mahakant Jha. Since sons were minors, they appeared in the title suit through their mother and natural guardian. Counsel further submits that the said Title Suit No.18 of 1978 was decreed in favour of the plaintiffs and thereafter, the present respondents' 1st set had preferred Title Appeal No.5 of 1985 before Additional District Judge-II, Madhepura in which the plaintiffs, namely, Shakuntala Devi and her two minor sons were made as respondents 1