- 1 - HC-KAR NC: 2026:KHC:31834 RFA No. 1128 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JUNE, 2026 BEFORE THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR REGULAR FIRST APPEAL No. 1128 OF 2020 (SP) BETWEEN: 1. SRI CHOWDAPPA S/O EARAPPA AGED ABOUT 44 YEARS 2. SMT. MEENAKSHI W/O CHOWDAPPA AGED ABOUT 38 YEARS 3. CHETHAN S/O CHOWDAPPA AGED ABOUT 21 YEARS 4. BHAVYA D/O CHOWDAPPA AGED ABOUT 18 YEARS. NOTE:- THE APPELLANTS No.3 AND 4 WERE MINORS BEFORE THE TRIAL COURT AND THEY HAD BEEN REPRESENTED BY THEIR FATHER AS NATURAL GUARDIAN. THE APPELLANTS ARE RESIDINT AT HOGARI VILLAGE, KASABA HOBLI KOLAR TALUK – 563 101. …APPELLANTS (BY SRI RAJESH GOWDA, AND SRI D V RAMESHA, ADVOCATES) Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:31834 RFA No. 1128 of 2020 AND: 1. SRI PUTTARAJU S/O VENKATESHAPPA AGED ABOUT 36 YEARS R/AT PRASHANTHA NAGARA KOLAR CITY – 563 101. …RESPONDENT (BY SRI NARASIMHA MURTHY G V, ADVOCATE FOR C/R) THIS RFA IS FILED UNDER SECTION 96 OF CPC 1908 AGAINST THE JUDGMENT AND DECREE DATED 03.01.2020 PASSED IN OS.No.211/2016 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, KOLAR DECREEING THE SUIT FOR SPECIFIC PERFORMANCE ON CONTRACT. THIS RFA HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 10.06.2026, THIS DAY, SHIVASHANKAR AMARANNAVAR J, DELIVERED THE FOLLOWING; CORAM: HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR CAV JUDGMENT 1. This appeal is filed by the appellants – defendant Nos. 1 to 4 challenging the judgment and decree dated 03.01.2020 passed in O.S. No.211/2016 by the III Additional Senior Civil Judge, Kolar. 2. The suit filed by the respondent against the appellants for the relief of specific performance of sale agreement dated 26.12.2014 has been decreed directing the - 3 - HC-KAR NC: 2026:KHC:31834 RFA No. 1128 of 2020 appellants to execute registered sale deed in favour of the respondent by receiving the balance sale consideration. 3. Respondent – plaintiff filed the suit with the following pleadings: Defendants are owners of plaint schedule property. Defendant Nos. 1 and 2 are husband and wife, defendant Nos. 3 and 4 are children of defendant Nos. 1 and 2. Defendants agreed to sell the suit schedule property for sale consideration of Rs.15,00,000/- to the plaintiff. Plaintiff has paid Rs.14,40,000/- as advance and agreed to pay balance sale consideration of Rs.60,000/- at the time of registration of sale deed. Defendant No.1 received the advance before the witnesses and defendant Nos.1 and 2 along with minors, defendant Nos.3 and 4 executed registered sale agreement on 26.12.2014. Defendants executed sale agreement to meet their family and legal necessities. Defendant No.1 acquired the suit schedule property as per the order passed in O.S. No. 5/2013 on the file of II - 4 - HC-KAR NC: 2026:KHC:31834 RFA No. 1128 of 2020 Additional Senior Civil Judge, Kolar. Plaintiff is always ready and willing to perform his part of the contract. Plaintiff approached defendant Nos.1 and 2 asking them to execute the registered sale deed by receiving balance sale consideration but, defendants evaded the request of the plaintiff. Defendant No.1 applied before the authorities to fix the “ºÀzÀÄݧ¸ÀÄÛ“ for suit properties and it was given with new survey No. 18/7. 4. Defendant No.1 appeared through counsel and filed written statement. The contents of the same are as under: Defendant No. 1 contended that he never met the plaintiff and never agreed to sell the suit schedule property. Value of the suit schedule property as on the date of agreement of sale was more than Rs.80,00,000/. Sale agreement consideration is very meager. Defendants have not received any advance amount. Suit schedule property is the only property of the defendants for their livelihood. Defendants never received any amount from the plaintiff. The suit property is the - 5 - HC-KAR NC: 2026:KHC:31834 RFA No. 1128 of 2020 absolute property of defendants and it is their ancestral property. 5. On the basis of the said pleadings the trial Court framed the following issues: i) Whether the plaintiff proves that the defendant No.1 being absolute owner along with defendant No. 2 and on behalf of minor defendant No.3 and 4 have entered into sale agreement dtd. 26.12.2014 which registered on 27.12.2014 by agreeing to sell the suit property for the sale consideration of Rs.15,00,000/- and received Rs.14,40,000/- major part of the sale consideration as advance before witnesses and agreed to execute the registered sale deed within 1 years by receiving balance sale consideration? ii) Whether the plaintiff proves his readiness and willingness to perform his part of contract as per sale agreement dtd. 26.12.2014 which registered on 27.12.2014? iii) Whether the plaintiff is entitle for the suit relief as sought for? iv) What Order of Decree? - 6 - HC-KAR NC: 2026:KHC:31834 RFA No. 1128 of 2020 6. The plaintiff examined himself as P.W.1 and got marked Ex.P.1 to Ex.P.15. Defendant No.1 got examined himself as D.W.1 and not produced any documents. 7. The trial Court after hearing arguments and appreciating the evidence on record has answered issue Nos. 1 to 3 in the affirmative and decreed the suit. Defendants have challenged the said judgment and decree passed by the trial Court in the present appeal. 8. Heard learned counsel for appellants and learned counsel for respondent. 9. Learned counsel for appellants would contend that suit property is the ancestral property and defendant No.1 got the same as per order passed in O.S. No. 5/2013. The plaintiff has not made any demand or request to the defendants to execute the sale deed. Legal notice got issued by the plaintiff has not been served on the defendants and signature on the postal acknowledgment is not of the defendants, but of some other person. Defendant Nos. 3 and 4 who are appellant Nos. 3 and 4 herein were minors as on the date of the suit and - 7 - HC-KAR NC: 2026:KHC:31834 RFA No. 1128 of 2020 they are not represented by their guardian. Even though defendant No.1 was the natural guardian he alone engaged a counsel and filed written statement on his behalf only. Defendant Nos. 3 and 4 were minors as on the date of the suit and they are having interest and share in the suit schedule property. Plaintiff is not having any capacity to pay Rs.14,40,000/- to the defendants as advance as mentioned in Ex.P.1 – sale agreement. Value of the suit schedule property as on the date of alleged sale agreement was Rs.80,00,000/-. Decree has been passed against the minors who were not represented by guardian in the suit. Defendant No.1 has not contested the suit on behalf of defendant Nos. 3 and 4. The trial Court has not followed the procedure for appointing natural guardian of minors – defendant Nos. 3 and 4. The suit is proceeded with without appointing guardians of minor defendant Nos. 3 and 4. With this, he prays for remanding the matter for giving an opportunity to defendant Nos. 3 and 4 to contest the suit. - 8 - HC-KAR NC: 2026:KHC:31834 RFA No. 1128 of 2020 10. Learned counsel for respondent would contend that the plaintiff has got issued legal notice – Ex.P.6 on 09.02.2016 to defendant Nos. 1 to 4. Notice has been served on defendant Nos.1 and 2 and postal acknowledgments are at Ex.P.11 and Ex.P.12. The said sale agreement – Ex.P.1 is a registered document. The witness to the said sale agreement has been examined as P.W.2 and deed writer has been examined as P.W.3. Evidence of P.W.2 and P.W.3 establishes the execution of Ex.P.1 – sale deed by the defendants. Plaintiff is ready and willing to perform his part of contract, i.e., payment of balance consideration of Rs.60,000/-. The trial Court appreciating the evidence on record has rightly decreed the suit. With this, he prayed to dismiss the appeal. 11. Learned counsel for appellants places reliance on the decision of the Hon’ble Apex Court in the case of K.P. Natarajan and another Vs. Muthalammal and others, SLP (C) No. 2492/2021 decided on 16.07.2021 on the point that without appointing minor guardian to the minor defendants the suit cannot be proceeded with and the decree - 9 - HC-KAR NC: 2026:KHC:31834 RFA No. 1128 of 2020 passed against minors without appointing guardian against them is a nullity. 12. Having heard learned counsel for the parties, this Court has perused the impugned judgment, award and trial Court records. 13. Considering the above, the following points arise for consideration in this appeal: i) Whether the trial Court has followed the procedure for appointment of guardian ad litem of minor defendant Nos. 3 and 4? ii) Whether minor defendant Nos. 3 and 4 were represented by their guardian to protect their interest in the suit? 14. Reasons – Point No. (i): The suit filed by the respondent against the appellants is for the relief of specific performance of sale agreement dated 26.12.2014 registered on 27.12.2014. As per the case of the plaintiffs, said sale agreement – Ex.P.1 has been executed by appellant Nos. 1 to 4 - defendant Nos. 1 to 4 in favour of the plaintiff, agreeing - 10 - HC-KAR NC: 2026:KHC:31834 RFA No. 1128 of 2020 to sell the suit schedule property for sale consideration of Rs.15,00,000/- and paid Rs.14,40,000/- as advance and agreed to pay balance of Rs.60,000/- at the time of registration of sale deed. On perusal of Ex.P.1, it is seen that defendant Nos. 3 and 4 – appellant Nos. 3 and 4 were also party to the said sale agreement and the agreement has been signed by their father as a minor guardian. 15. In the suit also defendant Nos. 3 and 4 are shown as minors aged 17 years and 14 years respectively represented by their father Chowdappa - defendant No. 1 as a natural guardian. Along with the suit, I.A. No. 3 has been filed under Order XXXII Rule 4 read with Section 151 CPC seeking appointment of defendant No. 1 as a natural guardian of defendant Nos. 3 and 4 for the suit. 16. Said I.A. No. 3 filed under Order XXXII Rule 4 CPC has been allowed, on the first hearing date itself, i.e. 11.08.2016. The trial Court has not issued any notice on the said I.A. No. 3 to the minors - defendant Nos. 3 and 4 and to their natural guardian i.e. defendant No. 1. - 11 - HC-KAR NC: 2026:KHC:31834 RFA No. 1128 of 2020 17. Order XXXII Rules 3 and 4 provides for appointment of guardian for the suit for minor defendant. The said rules read as under: “3. Guardian for the suit to be appointed by Court for minor defendant.-(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 a 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 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 where there is no father, to the mother, or where there is no father or mother, to other natural guardian of the minor, or, where there is no father, mother 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. (4A) The Court may, in any case, if it thinks fit, issue notice under sub-rule (4) to the minor also. (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 or removal or death, continue as such throughout all - 12 - HC-KAR NC: 2026:KHC:31834 RFA No. 1128 of 2020 proceedings arising out of the suit including proceedings in any Appellate or Revisional Court and any proceedings in the execution of a decree.” The Karnataka High Court Amendment to Rule 3 of Order XXXII reads as under: “3. (1) Any person who is of sound mind and has attained majority may act as next friend of a minor or his guardian for the suit, provided that the interest of that person is not adverse to that of the minor and that he is not, in the case of a next friend, a defendant in the suit or in the case of a guardian a plaintiff in the suit. (2) Where a minor has a guardian appointed or declared by a competent Authority, no person other than the guardian shall act as the next friend of the minor or be appointed as guardian for the suit, unless the Court considers for reasons to be recorded in writing that it is for the minor's welfare that another person be permitted to act or be appointed as the case may be. (3) 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 the minor. A person appointed as guardian under this sub-rule shall, unless his appointment is terminated by retirement or removal by order of Court on application made for the purpose or by his death, continue throughout all proceedings in the suit or arising out of the suit including proceedings in any appeal or in revision and any proceedings in execution of a decree and the service of any process in any such proceeding on the said guardian if duly made shall be deemed to be good service for the purposes of such proceedings. - 13 - HC-KAR NC: 2026:KHC:31834 RFA No. 1128 of 2020 (4) An order for the appointment of a guardian for the suit may be obtained upon an application in the name and on behalf of the minor or by the plaintiff. The application where it is by the plaintiff shall whenever necessary set forth in the order of their suitability a list of persons who are competent and qualified to act as guardian for the suit for the minor defendant. (5) The application referred to in the last preceding sub-rule whether made by the plaintiff or on behalf of the minor defendant shall be supported by an affidavit verifying the fact that the proposed guardian has not or that no one of the proposed guardians has any interest in the matters in controversy in the suit adverse to that of the minor and that the proposed guardian or guardians are fit persons to be so appointed. The affidavit shall further state according to the circumstances of each case, particulars of any existing guardian appointed or declared by Competent Authority, the name and address of the person, if any, who is the de facto guardian of the minor, the names and addresses of persons, if any, who, in the event of either the natural or the de facto guardian or the guardian appointed or declared by Competent Authority not being permitted to act, are by reason of relationship or interest or otherwise suitable persons to act as guardian for the minor for the suit. (6) An application for the appointment of a guardian for the suit of a minor shall not be combined with an application for bringing on record the legal representative of a deceased party. (7) No order shall be made on any application under sub-rule (4) above except upon notice to the minor and also 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 natural guardian of the minor, or where there is no father or natural guardian upon notice to the person in whose actual care the minor is, and after hearing any objection which may be urged - 14 - HC-KAR NC: 2026:KHC:31834 RFA No. 1128 of 2020 on behalf of any person so served with notice. The notice required by this sub-rule shall be served at least seven clear days before the day named in the notice for hearing of the application. (8) Where none of the persons mentioned in the last preceding sub-rule is willing to act as guardian, the Court shall direct notice to other person or persons proposed for appointment as guardian either simultaneously to some or all of them or successively as it may consider convenient or desirable in the circumstances of the case. The Court shall appoint such person as it thinks proper from among those who have signified their consent and intimate the fact of such appointment to the person appointed by registered post unless he is present at the time of appointment either in person or by pleader. (9) No person shall be appointed guardian for the suit without his consent and except in cases where an applicant himself prays for his appointment as guardian, notices issued shall clearly require the party served to signify his consent or refusal to act as guardian. (10) Where the Court finds no person fit and willing to act as guardian for the suit the Court may appoint any of its officers or a pleader of the Court to be a guardian and may direct that costs to be incurred by that officer or pleader in the performance of his duties as guardian shall be borne either by the parties or by any one or more of the parties to the suit or out of any fund in Court in which the minor is interested and may give direction for the repayment or allowance of the costs as justice and the circumstances of the case may require. (11) When a guardian for the suit of a minor defendant is appointed and it is made to appear to the Court that the guardian is not in possession of any or sufficient funds for the conduct of the suit on behalf of the defendant and that the defendant will be - 15 - HC-KAR NC: 2026:KHC:31834 RFA No. 1128 of 2020 prejudiced in his defence thereby, the Court may from time to time order the plaintiff to advance moneys to the guardian for the purpose of his defence and all moneys so advanced shall form costs of the plaintiff in the suit. The order shall direct that the guardian as and when required by the Court shall file into Court the account of the moneys so received by him.” “4. Who may act as next friend or be appointed guardian for the suit.-(1) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit: Provided that the interest of such person is not adverse to that of the minor and that he is not, in the case of a next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff. (2) Where a minor has a guardian appointed or declared by competent authority, no person other than such guardian shall act as the next friend of the minor or be appointed his guardian for the suit unless the Court considers, for reasons to be recorded, that it is for the minor's welfare that another person be permitted to act or be appointed, as the case may be. (3) No person shall without his consent in writing be appointed guardian for the suit. (4) Where there is no other person fit and willing to act as guardian for the suit, the Court may appoint any of its officers to be such guardian, and may direct that the costs to be incurred by such officer in the performance of his duties as such guardian shall be borne either by the parties or by any one or more of the parties to the suit, or out of any fund in Court in which the minor is interested for out of the property of the minor, and may give directions for the repayment or allowance of such costs as justice and the circumstances of the case may require.” - 16 - HC-KAR NC: 2026:KHC:31834 RFA No. 1128 of 2020 18. Order XXXII of CPC has been specifically enacted to protect the interest of the minors in a suit and to see that they are represented in the suit or proceedings by a person who is qualified to act as such. In order to achieve the said object the legislature has laid down in Order XXXII Rule 3 (4) and (4A) of CPC that the wishes of the minor and his guardian are to be obtained before any guardian for the minor is appointed by the Court. Their wishes can only be ascertained through issuance of notice to them for the same. Even sub- rule (9) of Rule 3 of Order XXXII amended by the High Court of Karnataka mandates for obtaining consent of proposed minor guardian. Even sub-rule (7) of Rule 3 of Order XXXII amended by High Court of Karnataka mandates issue of notice to minor and his guardian prior to appointment of guardian. 19. Therefore the object of Order XXXII of CPC will be defeated if without any notice to the minor and his guardian and without ascertaining their wishes, a guardian for the minor is appointed by the Court or a guardian is thus thrust upon him (minor). - 17 - HC-KAR NC: 2026:KHC:31834 RFA No. 1128 of 2020 20. Having regard to above language of sub-Rule (4) and (4A) of Rule 3 of Order XXXII of CPC as well as to the policy and object underlying in it, it is reasonably clear that the said provisions must be taken to be mandatory. Therefore, serving of notice upon the minor and his guardian, inviting their objections, if any, before appointing guardian for the minor in the suit, is mandatory and compulsory. It is settled proposition of law that a provision or a statute which is vital and goes to the root of the matter cannot be broken and its breach cannot be overlooked. Therefore, a breach and disregard of the mandatory provisions contained in sub-rule (4) and (4A) of Rule 3 of Order XXXII of CPC and/or sub-rule (7) and (9) of Rule 3 of Order XXXII of Karnataka Amendment of CPC in a suit shall make the appointment of a guardian for the minor in the suit by the Court under sub-rule (1) of Rule 3 of Order XXXII of CPC shall become ineffective and useless automatically for which the judgment of the said suit will not have any binding effect on the minor and the same will not be operative against him (minor) at all. - 18 - HC-KAR NC: 2026:KHC:31834 RFA No. 1128 of 2020 21. Therefore, provisions of Order XXXII of CPC clearly clarify that only after compliance with the above mandatory provisions of sub-rule (4) and (4A) of Rule 3 and sub-rule (3) of Rule 4 of Order XXXII of CPC if a guardian is appointed for a minor in a suit, then in the eye of law, he/she shall be deemed to represent the minor concerned lawfully. 22. If however a guardian ad-litem for the minor (defendant) is appointed upon application made by the plaintiff without any notice of such an application having been served upon the minor and guardian as required under sub- rule (4) and (4A) of Rule 3 of Order XXXII of CPC an order appointing guardian ad litem for such a minor defendant by the Court purporting to act under sub-rule (4) of Rule 3 of Order XXXII of CPC would be a nullity and without jurisdiction, and such a guardian ad litem cannot legally represent the minor so as to bind him by his acts. Such a minor will not be considered to be a party to such proceedings notwithstanding that his name appears in the record and as such any order - 19 - HC-KAR NC: 2026:KHC:31834 RFA No. 1128 of 2020 passed or any proceedings taken against him (minor) shall be null and void. 23. In the case on hand, I.A. No. 3 filed by the plaintiff under Order XXXII Rule 4 CPC has been allowed on the first day of hearing (prior to issue of notice/summons to the defendants). The notice as mandated under sub-rule (4) and (4A) of Rule 3 of Order XXXII of CPC has not been complied. The format of notice to minor defendant is contained in No. 11A of Appendix H and notice to proposed guardian for the minor defendant contained in No. 11B of Appendix H are extracted as under: “No. 11A NOTICE TO MINOR DEFENDANT (O. XXXII, r. 3) (Title) To …………………………………………………………………….. Minor Defendant. WHEREAS an application has been presented on the part of the plaintiff in the above suit for the appointment of ..........*.as guardian for the suit for you, the minor defendant, you are hereby required to take notice to appear in this Court in person on - 20 - HC-KAR NC: 2026:KHC:31834 RFA No. 1128 of 2020 the......... day of 19..../20...., at O'clock in the forenoon to show cause against the application, failing which the said application will be heard and determined ex parte. GIVEN under my hand and the seal of the Court, this….. day of….. 19..../20..... Judge.] *Strike off the words which are not applicable.” “No. 11B NOTICE TO THE PROPOSED GUARDIAN FOR THE MINOR DEFENDANT WHEN THE PERSON PROPOSED IS NOT THE GUARDIAN APPOINTED BY AUTHORITY OR THE NATURAL GUARDIAN OR THE PERSON IN WHOSE CARE THE MINOR IS (O. XXXII, r. 4) (Title) District.... In the Court of at Suit No.. of 19..../20........................................................... Plaintiff Versus ………………………………………………………………………………………………..Defend ant To …………………………………………………………………………….., proposed guardian WHEREAS an application has been presented by the - 21 - HC-KAR NC: 2026:KHC:31834 RFA No. 1128 of 2020 plaintiff in the above case for the appointment of you............as guardian for the suit to the minor defendant, you are hereby required to take notice that unless within............. days from the service upon you of this notice you make an application to the Court intimating your consent to act as guardian for the suit, the Court will proceed to appoint some other person to act as a guardian to the minor for the purposes of the said suit. Given under my hand and the seal of the Court, this……. day of …….19..../20..... Judge". 24. The format of notice to minor defendant is contained in No. 11A of Appendix H and notice to proposed guardian for the minor defendant contained in No. 11B of Appendix H as amended by the Karnataka High Court are extracted as under: ”No. 11-A NOTICE TO PROPOSED GUARDIAN OF A MINOR DEFENDANT/RESPONDENT [See Order XXXII, Rule 3(8) and (9) To ………………………………………………………. (Name, description and place of residence of proposed guardian) Take notice that…………………… plaintiff/appellant in…………………….. has presented a petition to the…………………….. Court praying that you be appointed guardian ad litem to the - 22 - HC-KAR NC: 2026:KHC:31834 RFA No. 1128 of 2020 minor defendant(s)/respondent(s) and that the same will be heard on the………………... day of…………….…19……….…… 2. The affidavit of…... has been filed in support of this application. 3. If you are willing to act as defendant(s)/respondent(s) you are requested to sign (or affix your mark to) guardian for the said the declaration on the back of this notice. 4. In the event of your failure to signify your express consent in the manner indicated above, take further notice that the Court may proceed under Rule 3 of Order XXXII of the Code of Civil Procedure, 1908, to appoint some other suitable person or one of its officers as guardian ad litem of the minor defendant(s)/respondent(s) aforesaid. Dated this…………….….. day of……………….19……..…... (Signature) I hereby acknowledge receipt of a duplicate of this notice and consent to act as guardian of the minor defendant(s)/respondent(s) therein mentioned. (Signature) Witnesses 1……………….. 2………………...” ”No. 11 NOTICE TO GUARDIAN APPOINTED OR DECLARED, OR TO FATHER OR OTHER NATURAL GUARDIAN OR TO THE PERSON IN CHARGE OF THE MINOR [See Order XXXII, Rule 3(7) and (9)] - 23 - HC-KAR NC: 2026:KHC:31834 RFA No. 1128 of 2020 (Title) To Guardian appointed or declared, or father or other natural guardian or person in charge of the minor Whereas, an application has been presented on the part of the……………..…. in the above suit for the appointment of a guardian for the suit for the said minor, you are hereby required to take notice that, unless within days from the service upon you of this notice, an application is made to this Court for the appointment of you or of some friend of the said minor to act as his/her guardian for the purposes of the said suit, the Court will proceed to appoint some other person to act as guardian of the said minor for the purposes of the suit. Given under my hand and the seal of the Court, this………..…….. day of..............19………….…. Judge” 25. On perusal of these formats, it is clear that prior to allowing the application filed under Order XXXII Rule 3 CPC notice to minor and the proposed guardian has to be issued and only after obtaining the consent of the minor guardian, guardian ad litem for the minor defendant has to be appointed. 26. In the case on hand notice to the minor defendants and notice to the proposed guardian for the minor defendants has not been issued prior to allowing application filed under - 24 - HC-KAR NC: 2026:KHC:31834 RFA No. 1128 of 2020 Order XXXII Rule 3 CPC, (I.A. No. 3). Therefore, defendant Nos. 3 and 4 – appellant Nos. 3 and 4, who are minors as on the date of the suit, will not be considered to be a party to the suit, notwithstanding that their names appear in the record and as such the order passed and proceedings taken against them is null and void. Accordingly, point number (i) is answered. 27. Reasons – Point No. (ii). The trial Court has issued suit summons to defendant Nos. 1 to 4 who are appellants herein. The suit summons issued to the defendant Nos. 2 to 4 have been served on defendant No. 1. Defendant No. 2 is the wife of defendant No. 1 and summons issued to her has also been served on her husband who is defendant No. 1. Defendant No. 2 has not appeared and she has not been placed ex-parte. Defendant No. 1 who appeared on the date of appearance has sought time to engage counsel and subsequently he prayed for engaging counsel by providing legal aid and counsel provided by the District Legal Service Authority has filed vakalath for defendant No. 1. The counsel - 25 - HC-KAR NC: 2026:KHC:31834 RFA No. 1128 of 2020 for defendant no. 1 has also filed written statement. The said vakalath and written statement filed are only on behalf of defendant No. 1. There is no mention either in the vakalath or the written statement that it is filed also on behalf of defendant Nos. 3 and 4 who are minors. Therefore the interest of the minors has not been protected by the guardian ad litem. Defendant No. 1 has not been appointed as a guardian ad litem by obtaining his prior consent to act as such. More so defendant No. 1 has contented that suit schedule property is the only property to the family. Considering said aspect the minors – defendant Nos. 3 and 4 are also having interest in the suit property and their interest is not represented by natural guardian. More so, the minor defendant Nos. 3 and 4 are also parties to the sale agreement and on their behalf their natural guardian - father has affixed his signature as a minor guardian. Considering the above aspects, minors - defendant Nos. 3 and 4 remained unrepresented in the suit. Considering the said aspect, the decree passed against the minors – defendant Nos. 3 and 4 – - 26 - HC-KAR NC: 2026:KHC:31834 RFA No. 1128 of 2020 appellant Nos. 3 and 4 is null and void. The minor defendant Nos. 3 and 4 – appellant Nos. 3 and 4 have now attained majority and they can contest the suit on their own behalf. Considering the said aspect, the impugned judgment and decree passed by the trial Court, decreeing the suit requires to be set aside for giving an opportunity to the appellant Nos. 3 and 4 - defendant Nos. 3 and 4 to contest the suit. Accordingly point number (ii) is answered. 28. Considering the above aspects the following; O R D E R i) The appeal is allowed. ii) The judgment and decree dated 03.01.2020 passed in O.S. No. 211/2016 by III Additional Senior Civil Judge Kolar is set aside. iii) The matter is remanded to the trial Court with a direction to give an opportunity to appellant Nos. 3 and 4 – defendant Nos. 3 and 4 to file written statement and to lead evidence. - 27 - HC-KAR NC: 2026:KHC:31834 RFA No. 1128 of 2020 iv) All the contentions of both the parties are kept open. Both the parties shall appear before the trial Court on 31.07.2026 without awaiting any Court notice. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE LRS List No.: 2 Sl No.: 14