1. The appellants are plaintiffs, the respondents are defendants. The suit is for a declaration that the decree obtained by the 1st defendant in O. S. 323/47-48 on the file of the Munsiff-Magistrate, Tiptur, is void and not binding on the plaintiffs, for recovery of possession of the schedule property and also to declare that the execution proceedings in Ex. No. 691/50-51 on the file of the Munsiff, Tumkur and the sale held thereon do not bind the plaintiffs and for mesne profits from the date of suit. The 1st defendant had filed O. S. 323/47-48 against the plaintiffs for recovery of Rs. 1,000 and interest thereon due on a pronote executed by Siddananjappa, the father of the 1st plaintiff. The 1st plaintiff was a minor and the second plaintiff, mother of the 1st plaintiff was the proposed guardian of the 1st plaintiff. The plaintiffs alleged that the 1st defendant managed to see that endorsements of refusal were written both in the summons and in the notices issued on the application for appointment of a guardian, and thereafter he got the second defendant appointed as court guardian, to conduct the proceedings on behalf of the 1st plaintiff and obtained a decree against the plaintiffs, that the 1st plaintiff was not at all served with summons in the suit. It was also alleged that the first defendant fraudulently prevented the plaintiffs from having knowledge of the suit. The pronote on the basis of which the suit was filed by the 1st defendant is alleged to have been a forged document. The second defendant is a Pleader. It was alleged that he did not raise proper defences and that he is guilty of gross negligence and that he was colluding with the 1st defendant in that suit. It is further alleged that the 1st defendant got the decree transferred to the Court of the Munsiff at Tumkur, with a view to prevent the plaintiffs from knowing the proceedings and has not proceeded against the properties of the plaintiffs in their village with the said purpose in view. The property has been allegedly sold for a low sum of Rs. 721 and has been purchased by the 1st defendant himself. The plaintiffs had also filed an application under Order 21, Rule 90, C.P.C. for setting aside the sale. But that application was dismissed.
2. The 1st defendant pleaded that the court guardian was got appointed since the 1st plaintiff refused to receive the summons and notices and that he effectively represented the 1st plaintiff in the suit. He also pleaded that the pro-note had been executed by Siddananjappa for consideration and denied that there was any collusion with the court guardian. The second defendant also denied the plaint allegations of fraud and collusion, as well as negligence on his part in eon-ducting the suit on behalf of the minor 1st plaintiff.
3. Defendant 1 and Siddananjappa --the father of the 1st plaintiff, appear to have been on friendly terms. They purchased three different lands at various times jointly. On 29-11-1945, defendant 1 and Siddananjappa jointly purchased an arecanut garden from Nagamma for Rs. 2,000 under Ext. D-4. Towards his share of the consideration, Siddananjappa executed a promissory note on 30-11-1945 for Rs. 1,000 in favour of the 1st defendant along with the consideration receipt. Ext. D-2. This transaction gave rise to litigation. One Srinivasa Rao filed 0. S. 37/46-47 in regard to this property which ended in e compromise under which both Siddananjappa and defendant 1 gave up the land and Srinivasa Rao deposited in Court Rs. 2,000 to be paid to both of them. Before the amount was withdrawn by them, Siddananjappa died. The 1st plaintiff was about 10 years old then. Thereafter, the 1st defendant filed O. S. 323/47-48. It was decreed on 30-9-48 for Rs. 1,666-9-0. Defendant 1 got attached the half share of Siddananjappa in the amount of Rs. 2,000 in deposit in court in O. S. 37/46-47. Thereafter he sued out execution for the balance of Rs. 666-9-0 and brought the suit property to sale. In the suit property Siddananjappa had a half share.
4. In O. S. 323/47-48, defendant J who was the plaintiff, is alleged to have filed I. A. I. proposing the present second plaintiff, the mother of the 1st plaintiff, as guardian for the present 1st plaintiff. He also filed I. A. II for attachment before judgment of the immovable properties, the personal properties of Siddananjappa in Tiptur taluk. The order sheet shows that on 13-3-1948. the court ordered issue of notices on I. A. I to the minor and the guardian on 30-3-48. It is noted that the guardian notice was served on house as the guardian refused the service. The notice to the minor was also served on house since the guardian refused service. The summonses in the suit were also served on house as defendants in that suit refused service. The court adjourned for the purpose of the plaintiffs proposing the name of an official guardian. On 19-5-48, according to the order sheet, the server's affidavit was obtained. The service was held sufficient and the present second defendant was appointed the court guardian for the minor 1st plaintiff who was the 1st defendant in that suit. The court guardian pleaded in his written statement that he was not aware of the execution of the pronote by Siddananjappa or passing of consideration and put the plaintiff in that suit to strict proof of execution of the pronote and passing of the consideration.
5. The notice contemplated under Order 32, Rule 3, C.P.C. was filed and service was effected as contemplated under Order 5, Rule 17 of C.P.C. Under Order 5, Rule 19, the service of the said notice has been held to be duly served. The plea of fraud and collusion has been held to have been not established by the trial Court. In the lower appellate Court, this question was not urged on behalf of the plaintiffs. Since it is a mixed question of fact and law, it is not open to the plaintiffs to urge the same in this court.
6. Mr. H. F. M. Reddy, however, urged that a fresh application with an affidavit should have been filed before the court guardian was appointed and that the court should have held an enquiry whether there was no other person fit to act as guardian in the suit before appointing a court guardian under Clause (4) of Rule 4 of Order 32. He has relied on (1899) ILR 26 Cal 267 (Jatindra Mohan Poddar v. Srinath Roy). In that case, there was no personal service of the summons on the minors or upon their guardian, nor was the summons affixed to the house in which the minors or their guardian actually resided. It was held that there was neither personal nor substituted service of the summons upon the minor defendants, that they were entitled to have the ex parte decree set aside. In that case, there was no order appointing a guardian-ad-litem for the purpose of the suit under Section 443 of the Code of Civil Procedure of 1882. Hence, it has no application to the facts of the present case. He next relied on the decision in : AIR1957Pat260 (Ramchandar Singh v. Gopi Krishna). The question for decision in that case was whether in the eye of law a minor can be said to be a party to the suit or execution proceeding without the guardian-ad-litem appointed by the executing court, without complying with the provisions of Sub-rule (4) of Rule 3 of Order 32. The notice under Order 32, Rule 3, Clause (4) was not served either on the minor or on his mother, his proposed guardian. The Pleader guardian-ad-litem was, however, appointed by the Execution Court. It was held that Order 32, Rule 3, Clause (4) is mandatory and imperative and that unless notice in terms of Order 32. Rule 3 (4) is served on the minor and his guardian and when in spite of such service of notices they do not choose to appear, only then, and then, only, the court gets jurisdiction to appoint a guardian-ad-litem of such a minor. It was further held that the mere fact that the Pleader guardian-ad-litem has been appointed by the court without complying with the provisions of Order 32, Rule 3 (4), C.P.C. and the further fact that such a pleader-guardian has acted on behalf of such a minor cannot clothe him with the power to act as such on behalf of such a minor and he must be considered to be disqualified from acting as such guardian, and therefore the minor is not properly a party to the proceeding and the judgment rendered or any order passed against him is without jurisdiction, and null and void. It was further observed that where there is a mere defect, such as absence of a formal order appointing a person as guardian-ad-litem, notwithstanding that the notices in terms of Order 32, Rule 3 (4) and under Order 32, Rule 4 (3) have been served such a defect in the appointment of the guardian will not necessarily be fatal to the proceedings, unless it is shown that the minor was prejudiced by the defect, because such a defect is a mere irregularity, and a defect of mere form, and not of substance, and it does not go to the root of the jurisdiction of the Court to render any judgment against such a minor. It was further held that where the provisions of Order 32, Rule 3 (4) have been violated, the order appointing the guardian is null and void and that in such a case, the question of prejudice to the minor is irrelevant since the defect being one of substance, goes to the root of the jurisdiction of the court. It has to be noticed that under Sub-clause (4) of Rule 3 of Order 32 a notice to the proposed guardian is contemplated to ascertain his consent under the rule as amended by the High Court of Patna. In that case, no notice was issued or served on the minor or his natural guardian. It is not a case of service of notice under Order 5. The decision was followed in : AIR1968Pat12 (Ramachandra v. Rampunit). That was also a case where notices under Order 32, Rule 3 (4) were not served either on the minor or the proposed natural guardian. The contention that even if there was no compliance with the said provisions, the decree passed in the mortgage suit was valid, was negatived, following the decision in : AIR1957Pat260 (Ramachandar Singh v. Gopi Krishna). The decision in : AIR1957Pat260 is not an authority for the proposition that a notice to the court guardian is necessary under Clause (4) of Rule 4 of Order 32 as contended by Mr. Reddy, since the decision is based on Rule 4 of Order 32 as amended by the Patna High Court.
7. Mr. Reddy next relied on the decision in 44 Mad LJ 515 = (AIR 1923 Mad 553) (Rarichan v. Manakkal Roman Somyajipad), in that decision, the appointment of a court guardian was procured by means of a false affidavit. It contained a statement that besides the second defendant, the plaintiff had no next of kin. Since the second defendant was not willing to act as guardian, the petition to appoint him as guardian was dismissed. The statement in the affidavit was held to be false since there was at least one person known to the 1st defendant and his brother namely, the minor plaintiff's maternal uncle who was plaintiff's next of kin just like his father but this information was suppressed. The explanation offered was not accepted and it was held that the 1st defendant was guilty of fraud in law in making a false statement and thereby getting a Court Officer appointed as guardian. The appointment was held to be vitiated by fraud and of no legal effect. The decree and the subsequent sale were held not binding on the plaintiff following the decision in ILR 37 All 179 = (AIR 1915 All 62 (2)) (Bhagwan Dayal v. Param Sukh Dass), in the present case, there is no fraud committed by the 1st defendant on the court. Hence, this decision does not apply to the facts of the present case.
In ILR 37 All 179 = (AIR 1915 All 62 (2)) (Bhagwan Dayal v. Param Sukh Dass) the minor defendants were sought to be impleaded through their uncle as their guardian-ad-litem. The uncle refused to be the guardian-ad-litem and informed the court that the minors used to live with their mother and not with him. But without any notice being given to the minors or their mother in whose care they were, the court appointed the Amin as guardian-ad-litem of the minors. It was held that the decree passed against the minors w,as null and void against them as there was contravention of the provisions of Order 32, Rule 3. That was a case where no application had been made under Order 32, Rule 3. But in the present case, an application under Order 32, Rule 3 was made, the notices were issued and the service was held sufficient under the Order 5, Rule 19. In the present suit, the second plaintiff has no doubt stated in her evidence that she did not refuse service of the notice, but apart from her interested testimony, there is no other evidence to show that a false endorsement was made by the process-server, whose affidavit has been held to be sufficient for the purpose of service by the Court.
8. Mr. Reddy next relied on the decision in : AIR1960Ker367 (Narayan v. Gopalan) wherein it has been held that a minor can avoid a decree passed against him on the ground of gross negligence of the guardian-ad-litem even if the minor had not succeeded in proving fraud and collusion on the part of the guardian. It has been further held that the negligence of the guardian in order to be a good ground for the avoidance of a decree must be of such character as to justify the inference that the minor's interests were not at all protected and in substance though not in form the minor went unrepresented in the trial court and that gross negligence on the part of the guardian can be inferred from his conduct in not setting up proper defence. In that case, the minors had a perfectly good defence, the defence was put up but the guardian abstained later on from adducing any evidence at the trial and gave up contesting the suit and suffered a decree to be passed by entering into a compromise. The failure on the part of the guardian to defend the suit when there was perfectly good defence available, resulting in serious loss to the plaintiff, was held to amount to gross and culpable negligence which would enable the minors to get the decree set aside. In the present case, the plaintiffs pleaded that the 1st defendant obtained a decree on the basis of a forged pro-note alleged to have been executed by the father of the 1st plaintiff. In the course of his evidence, when he was confronted with the signatures of his father on the promissory note and the consideration receipt, Exts. D-1 and D-2 the plaintiff stated that he cannot say if they were the signatures of his father.
The test as to when gross negligence was a sufficient ground to avoid a decree as stated by the Full Bench of the Allahabad High Court in : AIR1932All293 (Siraj Fatma v. Mahmood Ali) in the following words has been followed in the above decision :
'The test of negligence should be the not doing of what a reasonable man, guided by prudent considerations which regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The negligence in order to be a good ground for the avoidance of a decree must be of such a nature as to justify the inference that the minor's interest were not at all protected and therefore he was not properly represented. The direct result of the negligence must be a serious prejudice to the minor and the negligence must not be merely such as might be innocently committed even by a reasonable person taking theordinary precautions which he would have taken in his own case. Where the negligence is so gross as to amount to a clear violation of the duty cast upon the guardian although not brought to the notice of the court at the time, the decree can be avoided.'
In the present case, the plaint does not disclose what valid defence he had to the suit filed by the 1st defendant. In his evidence also he has not disclosed any such defence. It is urged by Mr. Reddy that a prayer should have been made for grant of instalments under the Mysore Agriculturists' Relief Act, but there is no such plea in the present suit. The lower appellate Court has given a Undine that the plaintiff would not have been entitled to any relief under the Mysore Agriculturists' Relief Act even if he had raised such a defence. There is no evidence in the present suit as to the income of the plaintiff at the relevant time in order to entitle him to the reliefs under the Mysore Agriculturists' Relief Act. The plaintiffs have not shown that such a plea was open to them in the previous suit.
9. Mr. Ramachandra Rao, appearing for the 1st respondent-defendant 1, has relied on the decision of the Privy Council in (1903) ILR 30 Cal 1021 (PC) (Walian v. Banke Behari Pershad Singh). In that case, there was no formal order appointing the mother as guardian-ad-litem. It was held that the minors were effectively represented in the suit by their mother and with the sanction of the court, that there was nothing to suggest that their interests were not duly protected and that the only defects were that no formal order appointing the mother of the plaintiffs as guardian-ad-litem was drawn up and that it is not definitely shown that an attempt was made to serve the summons upon the minors or upon their mother before serving it upon the karta and the only adult male members of the family. It was not shown that the alleged irregularities caused any prejudice to the minors and the debt was one for which the minors were liable. The mother of the minor defendants appeared throughout the proceedings as their guardian. In the plaint she was described as guardian and in the decree and execution proceedings the court so described her. It was held that the defects in procedure not having prejudiced the minors were only irregularities and not errors fatal to the suit. In : AIR1954All599 (Brij Kishore Lal v. Satnarain Lal) the minor was represented by his elder brother as guardian in a partition suit. Though the elder brother was not formally appointed as guardian he accepted the guardianship, he also filed a written statement engaging a counsel. He went up in appeal against the decree passed by the trial court against the minor and took up proper defence. There were others of the family and the grand-father of the minor was a party to the suit and the defence was common to all. There was no prejudice caused to the interests of the minor. It was held that even though some formalities in the appointment of the guardian were not observed, if the guardian has agreed to act as the guardian and has done something to show that he has agreed to act as guardian, it would not vitiate the proceedings or would not affect the result of the suit provided there has been no prejudice to the minor.
In (1935) 13 Mys LJ 176 (Siddappa v. Rangappa) one of the brothers represented the minor defendants as their guardian. As there was no valid defence, he refrained from contesting the suit and allowed an expert decree to be passed against himself and his minor brothers. There was nothing to show that the proceedings in the suit were either collusive or fraudulent. In that case, the application for the appointment of the mother of the minor defendants as guardian-ad-litem was filed and notices were issued to the defendants as well as to the proposed guardian. The defendants were represented by a Pleader, and as the 1st defendant stated that he was 20 years of age and also looked to be a major, he was permitted to contest the suit on his own behalf and as guardian of his minor brothers, there was no formal order of appointment. It was held the mere absence of a formal order of appointment is only an irregularity which, in the absence of any prejudice resulting therefrom to the minors concerned, will not afford a sufficient ground for setting aside the decree, where the defendants have been effectively represented by a guardian-ad-litem with the sanction of the court. It was also held that omission to issue notice as required by Order XXXXII, Rule 3 (4) Civil Procedure Code to the minor defendants or their natural guardian can at best be only en irregularity, which will not vitiate the proceedings unless it is satisfactorily established that the minors have been prejudiced thereby in their defence. It was further held that prejudice is not a matter of assumption or presumption but one of proof depending on the facts and circumstances of each case, and that the real test in cases where gross negligence is imputed to the guardian-ad-litem is whether in fact there has been on the part of the guardian any act or omission in the conduct of the suit which has wrought prejudice to the minor, and that the guardian is expected to take care of the interests of the minors in the same way as a prudent man would look after his own interests if he were himself a party.
In AIR 1929 Pat 360 (Hitendra v. Sukhdeb) the proposed guardian though served, did not appear and the Court without enquiring into the question whether there was any other person fit and willing to act as guardian in the suit appointed an officer of the court to be the guardian. It was held that this is an irregularity in the appointment but the appointment is not null and void and the minors cannot be said to be not properly represented in the suit. It w.as further held that where a guardian-ad-litem is negligent in the conduct of the suit and an ex parte decree is passed the court must be satisfied that there was a defence available to the minor defendants which could properly be taken in the suit, before deciding whether there was such negligence on the part of the guardian-ad-litem as would entitle the minors in a decree vacating the decree already passed against them. The practice of a natural guardian to refuse to act as the guardian-ad-litem so as to make it possible to urge afterwards that the minor was not properly represented in the litigation was deprecated. It was held that there was no valid defence open to the minors and that there was no reason to set aside the ex ,parte decree. In AIR 1954 Nag 135 (Tikaram Hamaji v. Tarachand Gujoba) it has been held that the omission to issue notices to certain persons who are alleged to be fit and willing to act as guardian-ad-litem for the minor or failure to record the statement of one of them whether he was or he was not willing to act as guardian-ad-litem does not vitiate the appointment of Court Reader as guardian or render the decree null and void, and these would be irregularities which do not affect the decree unless the minor's interests are prejudiced. It was also held that the minor will not be entitled to get a decree set aside unless gross negligence on the part of the guardian is proved. In AIR 1954 Pat 349 (Krishna Behari v. Kedar Nath) it was held that when the Court, in ignorance of the fact that the minor has a guardian appointed by a competent authority, appoints another person, that does not by itself vitiate either the decree passed in the suit or the sale held in execution of the decree. It was further held that the whole question was whether any prejudice has been caused to the minor, and in the absence of any allegation of fraud or prejudice to the minor caused by the irregularity the. proceedings must be regarded as valid. The amendment of Rule 4. Clause (4) of Order 32 by the Patna High Court was also referred to. It was further held that it is not the business or duty of the officer who is appointed as guardian-ad-litem by the Court to file all sorts of frivolous objections.
10. It is contended by Mr. Reddy that before the appointment of a court guardian under Clause (4) of Rule 4 of Order 32 is made, a separate application with an affidavit ought to have been filed and notice of such application also should have been issued to the minor and his natural guardian. But there is no such provision in Rule 4 of Order 32 as is to be found in Rule 3 of Order 32. The absence of an enquiry by the Court under Clause (4) of Rule 4 of Order 32 as to whether there is no other fit person to act as guardian for the minor could only be an irregularity since no prejudice has been shown to have been caused to the minor first plaintiff, P.Ws. 1 and 2, the relatives of plaintiff 1 appear to have no knowledge of the affairs of the plaintiffs' family as disclosed in their evidence. It is not denied that the first plaintiff was living with his mother, the second plaintiff, at the relevant time.
11. This appeal is therefore dismissed with costs.
12. Appeal dismissed.