Beaumont, Kt., C.J.
1. The question submitted to this full bench is whether gross negligence apart from fraud or collusion on the part of the next friend or guardian ad litem of a minor litigant can be made the basis of a suit to set aside a decree obtained against him.
2. Looking at the matter apart from authority, and as one of principle and expediency, it seems to me that it is difficult to justify the suggested cause of action on any recognised principle. A plaintiff who brings a suit against a minor is bound to see that a guardian ad litem is appointed, and it is for the Court to satisfy itself that the person appointed is a proper person. But the plaintiff is not bound, and is not in a position, to see that the guardian ad litem carries out his duties properly, and if the guardian ad litem fails in his duty, it is difficult to see why the plaintiff who has proceeded in good faith in accordance with the rules of the Court should be deprived of the fruits of his judgment. If the cause of action exists, it must rest upon the peculiar anxiety of Courts to protect an infant who cannot protect himself. But it must be recognised that such regard for infants can only be exercised at the expense of finality in suits against infants, and at the cost of some injustice to an innocent plaintiff or persons claiming through him. To say, as some Judges have done, that it is just and equitable that a minor should not suffer by the negligence of his guardian is to regard only one side of the picture.
3. The question has led to a good deal of difference of opinion in the High Courts in India, and I will notice the authorities shortly.
4. The first case is that of Raghubar Dyal Sahu v. Bhikya Lal Misser I.L.R. (1885) Call. 69, in which two Judges of the Calcutta High Court held that a minor could not set aside a decree in a substantive suit for that purpose on the ground merely of gross negligence on the part of his guardian ad litem.
5. In Lalla Sheo Churn Lal v. Ramnandan Dobey I.L.R. (1894) Cal. 8, in which Raghubar Dyal Sahu v. Bhikya Lal Misser was not referred to, two other Judges of the Calcutta High Court took a contrary view, basing their opinion largely on the English case of In re Hoghton : Hoghton v. Fiddey (1874) L.R. 18 Eq. 573. The actual decision in Lalla Sheo Churn Lal v. Ramnandan Dobey was that a judgment obtained against a minor owing to the gross negligence of his next friend could not be relied on as res judicata, a decision which seems inconsistent with the decision of the Privy Council to be referred to hereafter. There does not appear to be any authoritative ruling of the Calcutta High Court reconciling these two conflicting views.
6. In the Madras High Court it was held by a division bench in Punnayyah v. Viranna I.L.R. (1921) Mad. 425 that a minor could file a suit to set aside an ex parte decree against him on the ground of gross negligence on the part of his guardian ad litem. The Court disagreed with the views expressed in Raghubar Dyal Sahu v. Bhikya Lal Misser, and relied on the English case of In re Hoghton (supra.).
7. In the Lahore High Court there has been a conflict of opinion. In Imam Din v. Purn Chand I.L.R. (1919) Lah. 27 it was held that negligence on the part of the guardian ad litem was not enough to entitle a minor to challenge the validity of a decree, and in Fazal Din v. Md. Shafi AIR  Lah. 674 the contrary view was taken.
8. In Patna also there have been conflicting decisions.
9. In the Allahabad High Court there was also a conflict of authority, but in a recent full bench case-Siraj Fatma v. Mahmud Ali I.L.R. (1932) All. 646,- the Court decided that gross negligence on the part of the guardian ad litem was sufficient to enable a minor to challenge a decree. The leading judgment in that case was given by Mr. Justice Sulaiman, as he then was, who entered upon an exhaustive review of all the cases. I think that his judgment was based mainly on the view that this form of action is allowed under English law. He says (p. 659): 'That in England gross negligence [on the part] of the guardian is a good ground for the avoidance of a decree against a minor cannot be doubted,' and he took the view that there was no reason why the English law should not be applied to India. Mr. Justice Sen agreed with Mr. Justice Sulaiman, but Mr. Justice Boys, in a dissenting judgment, considered that such an action would not lie by virtue of Section 2 and Section 44 of the Indian Evidence Act. That view cannot, I think, be supported. Section 44 of the Indian Evidence Act deals with defences open against a judgment in a prior suit relied on as res judicata ; but if it be part of the substantive law that a minor can challenge a decree on the ground of negligence by his guardian, it must necessarily be open to him to attack the judgment on that ground without reference to Section 44 of the Indian Evidence Act. The Indian Evidence Act does not; destroy substantive rights.
10. I now come to the Bombay cases. In Cursondas Natha v. Ladkavahu I.L.R. (1895) 19 Bom. 571 a minor alleged that there was error on the face of the decree because liberty was not reserved to him to challenge the decree after attaining his majority Mr. Justice Farran rejected that claim. There is a dictum in the judgment based on Lalla Sheo Churn Lal v. Ramnandan Dobey to the effect that it is open to a minor to impeach a decree by a separate suit in cases where his guardian has been guilty of fraud or negligence, but that is no more than a dictum.
11. In Hanmantapa v. Jivubai I.L.R. (1900) 24 Bom. 547 : 2 Bom. L.R. 478 a division bench referred to the case of Lalla Sheo Churn Lal v. Ramnandan Dobey with approval, but as no negligence by the guardian was proved, it was not necessary to decide what would have been the effect of any such negligence.
12. Similar observations apply to the decision in Vishnu Narayn v. Dattu Vasudeo (1907) 9 Bom. L.R. 478.
13. In Sonubai v. Shivajirao I.L.R. (1920) 45 Bom. 648 : 223 Bom. L.R. 110 it was held by a division bench that the Court under its inherent jurisdiction could set aside an order dismissing an appeal by a minor for default. The judgment appealed from was challenged on the ground that the guardian ad litem had become insane, but the Court held that it was not necessary to consider the conduct of the guardian since a proper case for setting aside the order in default had been made out. The case, therefore, is not a decision upon the present question, though it is to be noted that both the Judges referred with approval to the case of Lalla Sheo Churn Lal v. Ramnandan Dobey I.L.R. (1894) 22 Cal. 8.
14. In Sureshchadra v. Bai Iswari (1937) 40 Bom. L.R. 127, which came before a division bench consisting of Mr. Justice Barlee and Mr. Justice Macklin, the plaintiffs sued to set aside a decree passed against their father as manager of the joint family of which they were members on the ground of his negligence. The trial Court held that the plaintiffs were sufficiently represented in the former suit by the father as manager of the joint family and that the matter was res judicata. In appeal the High Court sent the matter back to the lower Court for disposal on merits, and expressed the following opinion (p. 130):
15. It is clear law that a minor has a right to sue to void a decree which is obtained against him owing to gross negligence of his guardian, and the rule would apply whether the guardian be a guardian ad litem appointed by the Court, friend, or even the Hindu law guardian, i.e. his father.
16. I am unable to agree with this decision. It was not a case of a guardian ad litem, and is therefore not strictly in point on this reference, but I can see no reason why a minor member of a Hindu joint family, who is not a party to a suit because he is sufficiently represented by the manager, should have any better right to set aside the decree than an adult member of the family, who is also represented by the manager. On any view of the matter, the case seems to me to be an unwarranted extension of the principle that a minor can set aside a decree against him on the ground of misconduct of his guardian ad litem.
17. In Auraj v. Dalpat : AIR1937Bom464 the matter came before me in second appeal. (In the suit the plaintiff challenged a decree on the ground that it had been passed against him when a minor and that his guardian ad litem had been guilty of gross negligence. The suit had been decreed in the lower Courts, but in second appeal I held that the suit did not lie. I thought that the cases in which it had been held that such a suit lay were based on a misconception of English law. This appears to be the only actual decision of the Bombay High Court upon the question at issue, but it is to be noticed that the earlier Bombay cases were not referred to. Had they been cited, I should probably have referred the case to a full bench.
18. The only case in which this question has been referred to in the Privy Council is that of Venkata Seshayya v. Kotiswma Rao (1937) 39 Bom. L.R. 317. In that case the Privy Council held that the principle of Section 44 of the Indian Evidence Act could not be extended to cases of gross negligence and that if a judgment were relied on as res judicata, it could not be challenged on the ground that it had been obtained by negligence, which is not a matter referred to in Section 44. Their Lordships cited some of the cases on the present question to which I have referred and made these observations (p. 321):
Their Lordships are not concerned to discuss the validity of these decisions, or the elusive distinction between negligence and gross negligence, as they are satisfied that the principle involved in these cases is not applicable to such cases as the present one. The protection of minors against the negligent actings of their guardians is a special one, and in these cases the plaintiff in the second suit was also the plaintiff in the former suit, although in the earlier suit he or she had sued through a guardian.
19. The question at issue, therefore, has not been determined by the Privy Council.
20. The result of the Indian authorities appears to me to be that-although there is a considerable difference of opinion amongst High Court Judges in India-there is a preponderance of authority in favour of the view that a minor can challenge a decree in a separate suit on the ground that such decree was passed against him owing to the gross negligence of his guardian ad litem. The learned Judges, however, who take this view appear to me to base their judgments on the consideration that such an action lies under English law and that there is no reason why the principles of English law should not be incorporated into India. I therefore propose to consider the question whether the suggested action does lie under English law.
21. I may say at once that I have succeeded in finding no reported case in the English Courts in which such an action has ever been brought, but there are references to the question in certain text books.
22. In Simpson on The Law of Infants (4th edn., p. 324) it is stated that 'Subject to what has been said above, an infant defendant is as much bound by a judgment or order of the Court as an adult; but he may set it aside for fraud, negligence, error, or new matter.' The learned author then discusses cases of fraud, error, and new matter, but says nothing further about negligence.
23. In Seton's 'Judgments and Orders' (7th edn., p. 939) it is stated:
But under extraordinary circumstances (as of fraud, gross negligence, error, or new matter), an infant Plt. has been allowed to show cause against a decree dismissing his bill; and this applies to infant Defts. also.
24. The cases referred to in support of this proposition are Napier v. Lady Effingham (1726) 2 P. Wms. 401 and Carew v. Johnston (1805) 2 Sch. & Lef. 280, neither of which seems to me to have any real bearing on the question at issue.
25. In the second edition of Halsbury's Laws of England, Vol. XVII, p. 708, it is stated in paragraph 1456, which deals with judgments obtained in a suit in which an infant is plaintiff represented by his next friend, that 'An infant plaintiff is as much bound as an adult by a judgment or order in the cause, even though there may have been irregularities in the conduct of it, unless there has been fraud or gross negligence on the part of his next friend,' and the authority cited for that proposition is In re Hoghton (supra). But in paragraph 1464, which deals with the effect of a judgment against an infant, it is stated that 'an infant may bring another action to impeach the judgment on the ground of fraud or collusion' no reference being made to gross negligence. It seems difficult to justify a distinction in this connection between a judgment obtained by or against an infant.
26. I now turn to the case of In re Hoghton (supra) which is relied on by the Courts in India as an authority for the view that the action in question lies under English law. In that case the infant petitioner was a daughter of Lady Hoghton who had died, having appointed a Colonel Blackburn and a solicitor named Fiddey as executors and trustees. After her death a bill was filed in the name of the infant children against Colonel Blackburn and Mr. Fiddey and an adult child, charging Fiddey with misapplication of the assets of the testatrix, and seeking an administration order. An administration suit was then started by summons on behalf of the infant children against Black burn and Fiddey, and in December, 1867, an administration decree was made in this suit, but the order was never carried into Chambers. At the same time an order was made staying proceedings in the first suit. Fiddey died in the year 1872. The petitioner prayed that she might be at liberty to exhibit a bill or a supplemental bill in the nature of a bill of review with respect to the misapplication of the trust funds by Fiddey stated in the petition, with a view apparently to making Colonel Blackburn liable. It does not appear exactly what relief was sought by the supplemental bill, but presumably it was either to remove the stay order in the first administration suit, or for liberty to prosecute the decree made in the second suit and to introduce new matter. As far as I can see, there was no question of setting aside any decree made against an infant since no such decree had been passed. And even if leave had been given to bring an action to set aside a decree, it does not appear what was the result of the action. The learned Vice-Chancellor, Sir Rule Malins, doubted if leave to file a supplemental bill was necessary, but gave leave in case it was necessary. He started his judgment by saying (p. 576):
The question which I have to decide is, whether this infant, on whose behalf a decree was taken by consent in 1867, is to suffer by any negligence or want of knowledge on the part of her then next friend. I am clearly of opinion she cannot be called upon to endure that inconvenience.
27. It is of course deplorable that a minor should suffer for the negligence of his next friend ; it is also deplorable that an adult litigant should suffer by the fraud or negligence of his legal adviser, but that does not entitle him to set aside a decree obtained against him in good faith.
28. If it be the law that it is open to an infant to challenge a decree passed against him on the ground of the negligence of his guardian ad litem, it seems extraordinary that no case on the subject is to be found in the books. The Courts in England no doubt exercise great care in the appointment of a guardian ad litem, but it is too much to suppose that no guardian has ever fallen short of his duty. I may add that in the course of more than twenty-five years practice at the Chancery bar, I never myself came across such an action.
29. The conclusion I come to is that under English law an infant cannot challenge a decree properly passed against him on the ground that his guardian ad litem was guilty of gross negligence in suffering the decree, and if that is so, I can see no reason why such a cause of action should lie in British India. All the Judges in India who take the view that such a cause of action does lie seem to me to base their opinions on a misconception of the English law on the subject, I think also that they underrate the danger and inexpediency of destroying the finality of decrees duly obtained in suits against minors.
30. I therefore answer the question propounded in the negative.
31. I have mentioned the more important Indian cases bearing on the question referred in my referring judgment. Mr. Murdeshwar for the appellant has cited two other Bombay cases, Vishnu Narayan v. Dattu Vasudeo : (1907)9BOMLR1099 and Sonubai v. Shivajirao I.L.R. (1920) 45 Bom. 648 : 23 Bom. L.R. 110, and has pointed out that the Patna High Court, which formerly took a different view, has now followed Lalla Sheo Chum Lal v. Ramnandan Dobey I.L.R. (1894) Cal. 8 and Siraj Fatma v. Mahmud Ali I.L.R. (1931) All. 646.
32. In most if not all of the cases in which any reasons have been given the proposition that gross negligence on the part of the next friend or guardian ad litem of a minor entitles him to bring a suit to set aside a decree obtained against him is said to be based upon the English law. The first question that falls to be considered is therefore what is the English law. In Lalla Sheo Churn Lal v. Ramnandan Dobey, which appears to be the earliest authority in support of this proposition and is followed in practically all the cases which take that view, reliance was placed on certain passages in Macpherson on Infants and Simpson on the Law of Infants, but the only judicial authority cited was In re Hoghton : Hoghton v. Fiddey (1874) L.R. 18 Eq. 573. I think I am right in saying that this case and Gregory v. Molesworth (1747) 3 Atk. 626 are the only English cases which have been referred to in any of the cases cited in argument.
33. Gregory v. Molesworth, decided by Lord Hardwicke in 1747, is commonly cited in the text books as authority for the general rule that a minor is as much bound by a decree as an adult. Lord Hardwicke said, no doubt, ' unless gross laches, or fraud and collusion, appear in the prochein ami, then the infant might open it by a new bill.' But it cannot be seriously suggested that this case is any authority for holding that according to English law an infant can or ever could bring a suit to set aside a decree on the ground of the negligence of his next friend or guardian ad litem.
34. It used to be the practice in England, in the days of the old procedure, when decrees were passed against infants, to give them six months after they came of age to show cause against the decree ; and the infant might then put in a new answer and examine witnesses to prove his defence, which might be different from what it was before; see the note at the end of the report of Napier v. Lady Effingham (1726) 2 P. Wms. 40. Sometimes, as in the case just mentioned, a similar privilege was accorded to an infant plaintiff whose cause had been mismanaged. But obviously this is something very different from bringing a suit to set aside a decree. What the English Courts did was to reserve to an infant the right to a fair hearing before the decree became final. But this practice has never been transplanted to India. Farran J. said in Cursandas Natha v. Ladkavahu I.L.R. (1895) 19 Bom. 571 that the right given to infants by Courts of Equity in England to show cause against a decree within six months of attaining majority has not been preserved to them by the. Code of Civil Procedure ; and even apart from authority it is evident that this is so.
35. In In re Hoghton the facts were, very briefly, these. Two suits were filed on behalf of infants against their trustees, one charging one of the trustees with misappropriation and seeking administration, the other an ordinary administration suit. In the first suit an order was obtained staying all further proceedings, ostensibly on the ground that it was not for the benefit of the infants. In the second suit the usual administration decree was made, but (owing to the 'gross and inexcusable neglect of duty' on the part of the next friend) it was never 'carried into chambers', which means that no further step was taken, although apparently it remained a good decree. The trustee against whom allegations had been made, and who had in fact misappropriated the greater part of the trust funds, died insolvent; and after his death, seven years after the date of the administration decree, one of the infants by a new next friend sought by 'a bill or supplemental bill in the nature of a bill of review' to carry on the administration suits with a view to making the other trustee liable. The leave of the Court was sought for filing the bill. Malins V.C. thought that it could probably have been filed without leave, but anyhow he granted leave, and in the course of his judgment he said (p. 576):.the proposition that an infant of tender years may have her whole fortune wrecked by the neglect of her next friend is so monstrous that I cannot pay attention to it. She is entitled to have a next friend who is diligent and will protect her interests.
36. In this case then there was no decree against the infants. There was in fact a decree in their favour for administration, and though nothing had been done to enforce it for seven years, there is no suggestion that it had become incapable of execution. The infant by a new next friend was allowed to reopen the proceedings, not, evidently, in order to avoid the decree, but to make it effective. Here again there was obviously no recognition of any right to bring a suit to set aside a decree. In Seton's Judgments and Orders (Chap. 38, Section 2, p. 939 of the 7th edn.) this case is cited as authority for the proposition that an infant 'is not to suffer by negligence or want of knowledge on the part of his next friend and may impeach a judgment founded on error on the facts.' But this seems to be rather an inference from the Vice-Chancellor's general observations than from anything actually decided in the case.
37. The statement in Lalla Sheo Churn Lal v. Ramnandan Dobey I.L.R. (1894) all. 8, 12 that 'according to the law as administered in England, the gross negligence of his next friend would entitle an infant to obtain the avoidance of proceedings undertaken on his behalf' appears therefore to be a rather misleading generalisation. At any rate there is no support either in English cases or in English practice for the proposition that the negligence of his next friend or guardian ad litem entitles a minor to bring a suit to avoid a decree against him. In fact I think one must go further. The infant's right in English law seems to be no more than the complement of the Court's duty to protect his interests. This duty no doubt has been recognised by the Courts, as for instance in Napier v. Lady Effingham, which was approved by the House of Lords, and the rules of Court were adapted as far as possible to fulfil that duty. But then, as Sulaiman J. pointed out in Siraj Fatma's case, there was no stereotyped and statutory rule of res judicata to be considered. One cannot deduce from the English law that a minor has or had any substantive right in this connection of so definite and far-reaching a nature that the Courts of this country were entitled to say: 'this right is based on equity and good conscience; we will adopt it and apply it here ; the remedies given by the English law are not available or not effective here, but that is only a matter of procedure ; the right cannot be made effective in this country unless the minor is freed from the bar of res judicata and allowed to bring a suit to set aside the decree against him ; we must assume therefore that he has a right to bring such a suit.' Whether such an assumption would have been justified if there had been in a minor a substantive right to avoid proceedings is another matter. It cannot be justified if there is no such substantive right.
38. As the learned Chief Justice pointed out in Auraj v. Dalpat : AIR1937Bom464 , agreeing in that respect with Sulaiman J. in Siraj Fatma's case, Section 11 of the Code would be no obstacle if there were a substantive right in a minor to avoid a decree. But if the right which has been borrowed from the English law is merely a right to reopen or review proceedings, and the supposed substantive right of suit is merely invented because the English remedy is not available, there is no means of getting rid of the bar of res judicata except by saying that gross negligence is the same as fraud, which it is not, or by arguing, as Sulaiman J. does in Siraj Fatma's case, that a minor represented by a negligent guardian is to be treated as though he was not represented at all. Although I was at first in some degree attracted by this ratio decidendi, I think it will not bear close examination. The question whether minors are properly represented and whether decrees obtained against them are legally valid or not cannot, without risk of hopeless confusion, be left to depend on 'the illusory distinction between negligence and gross negligence,' and that is what it would really come to.
39. I was also inclined at first to doubt whether it is not too late in the day to question the existence of a right which has been assumed to exist in so many cases. But it is only quite recently that there has been anything like unanimity in the views of the High Courts on the point; in our own High Court Lalla Sheo Churn Lal v. Ramnandan Dobey has been approved without any serious examination of the basis of the minor's supposed remedy by suit [which indeed has not been directly in issue in any of the Bombay cases before Auraj v. Dalpat] ; and the authority of that Calcutta case must certainly be said to be shaken to some extent by the Privy Council judgment in Venkata Seshayya V. Kotiswara Rao (1936) 39 Bom. L.R. 317.
40. I agree that the question should be answered in the negative.
41. I agree, although with some hesitation, that the question referred to us should be answered in the negative. My hesitation is due to the fact that, although the cases decided in India do not agree whether a minor has the right to set aside by a subsequent suit a decree obtained against him owing to the gross negligence of his guardian, all the cases hold that the minor has some remedy. In Raghubar Dyal Sahu v. Bhikya Lal Misser I.L.R. (1885) Cal. 69 it was held, obiter, that the minor's proper remedy was by way of review of judgment, and all the cases which hold that the minor has no right to institute a fresh suit are founded on this decision. The other set of cases beginning with Lalla Shea Churn Lal v. Ramnandan Dobey I.L.R. (1894) Cal. 8 holds that a minor has a right to file a separate suit and some of them, but not all, hold that he may also proceed by way of review on judgment. But as pointed out by Sen J. in Siraj Fatma v. Mahmud Ali I.L.R. (1932) All. 646 it is now doubtful, owing to the decision of the Privy Council in Chhaju Ram v. Neki I.L.R. (1922) Lah. 127 : 24 Bom. L.R. 1238 P.C. by way of review is open to a minor. Therefore, although the question whether a minor has a remedy by way of review is not strictly before us, I cannot but be conscious that a negative answer to the question now propounded will probably shut out a minor whose interests have been neglected by his guardian from any relief other than a suit for damages against the guardian.
42. Looking at the matter apart from authority, I respectfully agree with my Lord the Chief Justice that the disadvantages of allowing a minor, who has been properly represented, to re-open a decree obtained against him much outweigh the advantages. Apart from the consequences which an innocent plaintiff may suffer, the re-opening of a decree may also affect the rights of third parties who are entitled to the Court's protection as much as minors. If the decree is set aside, it follows that all dealings with the suit property after the decree, and all sales in execution under the decree, must also be set aside. This might result in a general diminution of the price bid for land sold by Court under a decree against a minor, and so the recognition of a minor's rights to reopen a decree, though working for the benefit of particular minors, would not be for the benefit of minors as a class. I have looked at all the cases in which a minor was successful in re-opening a decree obtained against him and I cannot find that in any of them was the right of third parties considered, since in each case the person to suffer by the re-opening of the decree was the decree-holder himself.
43. As pointed out by my Lord the Chief Justice, the English law on which all the cases in India are founded is by no means clear. Lord Hardwicke's dictum in Gregory v. Molesworth, referred to in Raghubar Dyal Sahu v. Bhikya Lal Misser I.L.R. (1885) Cal. 69 merely obiter. Moreover, it may be doubtful whether a dictum in an English case decided in the year 1747 can have any application in India today where special and careful rules have been made for the protection of the rights of minors in civil actions. In re Hoghton is difficult to follow because the facts are not fully given. But it is clear, as pointed out by my Lord the Chief Justice, that the minor neither asked nor was allowed to re-open a decree passed against him. This case also is more than sixty years old. It is therefore by no means clear that the right allowed to a minor by the Indian decisions would be granted to him under the present day English law.
44. Order XXXII of the Civil Procedure Code prescribes elaborate rules to secure the proper representation of minors in civil actions, and it is my experience that civil Courts are more prone to excuse negligence on the part of minor's next friend or guardian ad litem than on the part of an adult litigant.
45. I therefore think that in the absence of a binding decision of this Court we should, in the interest of finality in litigation and in the interest of third parties who may obtain rights as a result of decrees passed against minors, answer the question propounded to us in the negative.