JUDGMENT

MOHAN M. SHANTANAGOUDAR, J.

1. The judgment dated 08.01.2013 passed by the High Court of Karnataka at Bangalore in Regular Second Appeal No. 1102 of 2004 is called in question in this appeal by the unsuccessful plaintiffs.

2. Brief facts leading to this appeal are: Original Suit No. 228 of 1989 was filed by the appellants herein (plaintiffs 1 and 2 respectively in the suit) praying for a declaration that the suit schedule property is the joint property of the appellants along with their father Kempaiah (defendant no.1 in the suit/respondent no.2 herein) and that they are entitled to 2/3^rd share in the said property; that the sale deed executed by the father-Kempaiah (defendant no.1 in the suit/respondent no.2 herein) in favour of defendant no.2/respondent no.1-Chowdamma was not binding on their 2/3^rd share in the suit schedule property. A relief for permanent injunction was also sought. A certain set of other facts was also pleaded which may not be material for the disposal of this appeal. It is relevant to note that at the time of filing of the suit, i.e. on 24.01.1985, the appellant no.2 herein, namely, Krishna was aged about 17 years. The appellant no.1/Plaintiff No.1 herein being the elder brother of appellant no.2 filed the suit not only on his personal behalf but also on behalf of the second appellant-second plaintiff (who was a minor).

3. The trial Court dismissed the suit on merits. The first Appellate Court allowed the Regular Appeal No. 90 of 2003 filed by the unsuccessful plaintiffs and decreed the suit. Aggrieved by the judgment of the first appellate Court, the unsuccessful defendant no.2- Chowdamma/purchaser of the property filed Regular Second Appeal before the High Court of Karnataka at Bangalore.

By the impugned judgment, the High Court has allowed the appeal and dismissed the suit mainly on the ground that the plaintiff no.1 being the elder brother could not act as the guardian of plaintiff no.2 during the life-time of Kempaiah, the father of the plaintiffs (defendant no.1), inasmuch as plaintiff no.1/appellant no.1 was not appointed as a guardian of the minor plaintiff no. 2 by any competent Court. Since the first defendant is the father of plaintiff no.2, he was the natural guardian and hence he could only represent plaintiff no.2 and none else.

It is to be noted that no issue was raised in the trial Court with regard to competency of plaintiff No.1 to represent plaintiff no.2 in the suit. Even in the first appellate Court, such question was not raised, hence not considered. However, the High Court seems to have permitted such question to be raised for the first time in the second appeal, since it is purely a question of law.

4. Hence, the only question to be decided in this appeal is, whether the first plaintiff being the elder brother of minor second plaintiff (at the time of filing of the suit) could have filed the suit on behalf of the minor as his next friend/guardian.

5. The High Court, while coming to the conclusion that the first plaintiff could not have acted as a guardian of the minor- second plaintiff, has relied upon Section 4(b) of the Hindu Minority and Guardianship Act (hereinafter called as ‘Hindu Guardianship Act’). Sub-Section (b) of Section 4 of the Hindu Guardianship Act reads as under:

“(b) "guardian” means a person having the care of the person of a minor or of his property or of both his person and property, and includes—

(i) a natural guardian,

(ii) a guardian appointed by the will of the minor's father or mother,

(iii) a guardian appointed or declared by a court, and

(iv) a person empowered to act as such by or under any enactment relating to any court of wards;”

As mentioned supra, the High Court has ruled that defendant no.1, being the father of minor plaintiff no.2, is the natural guardian of plaintiff no.2 and consequently plaintiff no.1 could not have acted as the guardian in the suit on behalf of minor plaintiff, particularly when he was not appointed as a guardian by any compete