JUDGMENT
William Watkin Phillips, J.
1. In this case the petitioner is the testamentary guardian of defendants Nos. 2 and 3 in the suit in the District Munsif’s Court. Notice was taken to the petitioner to Calcutta although he was stated in the guardian petition to be living at Mettupalayam. Notice was returned unserved for want of sufficient address. A second notice was taken to Calcutta to the identical address and this was returned unserved for want of time owing to holidays in the Calcutta Court. On this the respondent applied to make the brother of the minors their guardian, but he refused. Then, he filed an application supported by an affidavit in which it was alleged, firstly, that the testamentary guardian had refused to act as guardian and, secondly, that the minor’s mother was dead, whereas she is admittedly alive It was then stated that there was no other person interested in the said minors and the appointment of the head clerk of the Court was asked for. Accordingly, the head clerk was appointed guardian. He filed a written statement merely putting the plaintiff to proof of his case and the following day a decree was passed against the minors. The question now is whether the minors ware properly represented in that suit. Under Order XXXII, Rule 3(4) no appointment of guardian can be made except after notice to the minor and to any guardian appointed or declared by an authority competent on that behalf. In the present case the petitioner was the testamentary guardian and notice ought to go to him, It is perfectly clear that notice did not go to him. Besides this the respondent falsely asserted that this guardian had refused to act. When the present petition was presented an affidavit was filed in which it was alleged that the minor’s brother gave the guardian’s correct address to the respondent. This fact was not traversed in the counter-affidavit. Notwithstanding this, the District Munsif held that the assertion was not proved but when there is a definite allegation in an affidavit which is the only evidence in the case and that allegation is not traversed by the other side it must be held to be correct. That being so, it is perfectly clear that the appointment of the head clerk as Court guardian of the minors was obtained by the deliberately false statements of the respondent who has committed a fraud upon the Court. It is clear that the minors were not properly represented in the suit and all the proceedings that have taken place in that suit and subsequently are not binding on them. For authority, I need only refer to Puppooth v. Vayisravanath Manakkal Raman Somayajipad 74 Ind. Cas. 309 : 17 L.W. 558 : 44 M.L.J. 515 : 32 M.L.T. 107; (1923) M.W.N. 301 : A.I.R. 1922 Mad. 553 and Jambu Ammal v. Nataranjam Pillai 70 Ind. Cas. 867 : 31 M.L.T. 215 : A.I.R. 1922 Mad. 485. The petition is, therefore, allowed and the District Munsif is directed to restore the suit to his file so far as the minors are concerned and dispose of it according to law. The respondent will pay the costs of this petition.
