1. This is a defendant's first appeal arising out of a suit for a declaration. The facts which have given rise to this litigation between the parties can briefly be stated as follows : Bhagwati Sahai, Kalka Sahai and Bhawani Sahai, three brothers, executed a mortgage deed in favour of Sunder Lal defendant on 29th September 1931 for a sum of Rs. 2,260. In 1927 Sunder Lal instituted Suit No. 80 of that year to recover the amount due on the basis of the mortgage deed in his favour. The sons of the three mortgagors with the exception of Hari Har Sahai, plaintiff 1, son of Kalka Sahai, were also made defendants to the suit. Three sons of Kalka Sahai were minors and he himself was appointed by the Court to act as their guardian.ad-litem. Similarly Bhawani Sahai was appointed guardian-ad-litem of his minor son and one Babu Ram was appointed guardian-ad-litem of Bhagwati Sahai's minor sons. The Court trying the suit decreed the suit of Sunder Lal on 15th October 1929. The judgment is printed at pp. 30 and 31. Sunder Lal, decree-holder, in execution of his mortgage decree, put to sale the properties which were mortgaged under the terms of the deed referred to above. The minor sons of the three mortgagors objected to the attachment on the ground that the mortgage deed was not binding upon them and the property in suit which was joint family estate was not liable for payment of the amount for which a decree had been passed against them.
2. The learned Civil Judge who tried the case came to the conclusion that, as the interests of the persons appointed guardians-ad-litem were adverse to the interests of the minors, the decree passed in the former case was not binding upon the minors. There was an issue framed in. the case as to whether or not the mortgage deed of 29th September 1921 was executed for legal necessity, but the learned Judge of the Court below considered that it was not necessary in view of his finding; on issue No. 4 to give any finding on that, issue. He decreed the suit of the plaintiffs and granted them a declaration to the effect that the property in suit is not liable to sale in execution of decree No. 80 of 1927 of the Court of the Civil Judge of Shahjahanpur against plaintiffs 2 to 7. The present appeal has been preferred by the defendant against the decree passed by the Court below.
3. It may here be mentioned that after an appeal to this Court had been preferred by the defendant, he made an application to the Court below which purports to be one under Section 151, Civil P.C. The prayer was that the mortgage suit should be revived as the decree passed by the learned Judge in suit instituted by the minors was defective. The lower Court agreed with, the contention raised by the defendant-appellant and it therefore passed an order on 23rd April 1934 allowing the application of the defendant and directed that the case should be reheard. Against that order the opposite party have preferred a revision.
4. The important question which has to be decided in this case is whether the Court below was right in granting a declaration to the plaintiff-respondents declaring that in execution of decree No. 80 of 1927 the property mortgaged is not liable to be sold. We are of opinion that the view taken by the learned Judge of the Court below is not a correct one and cannot possibly be sustained. It is perfectly true that in the mortgage suit the fathers of various minor defendants were appointed to act as guardians-ad-litem of their respective sons. In suits on the basis of the mortgage deed executed by fathers it is undesirable that the fathers who executed the mortgage deed should be made to act as guardians-ad-litem for their minor sons. The position is somewhat difficult and embarrassing. Father executes a mortgage deed and therefore he may find it somewhat difficult while admitting the execution of the deed to say that on behalf of his minor sons he denies its execution. Then it will sometimes happen that the father bad in the mortgage deed made clear statements that the money was being borrowed for legal necessity or for payment of an antecedent debt and he would again be in an awkward position to contend before the Court that though he himself had admitted in the deed that there was legal necessity, yet on behalf of his son he should deny that there had been any legal necessity. Now these are objections which are quite strong and it is because of objections of this nature that Courts generally take care not to appoint the executants of mortgage deeds to act as guardians-ad-litem of their sons. Generally the mother or some person connected with the family is appointed to act as guardian-ad-litem.
5. The lower Court, however, has taken the view that where the father who has executed the mortgage deed acts as guardian-ad-litem the trial is vitiated on that ground alone and there is no necessity to go into the question as to whether or not the deed relied upon by the mortgagee was made for legal necessity. We are unable to agree with this view. There is no presumption of law to the effect that wherever a father is appointed guardian the Court must hold that his interests were adverse to the minor. There may be cases in which a father when he is appointed to act as guardian of his minor sons may be able to put a first class defence on behalf of the minor and it would be altogether wrong to say that the proceedings were altogether void because it was the father who had been appointed, guardian-ad-litem. The question as to; whether or not the guardian appointed in the case was a proper one would mostly depend on the question as to whether or not he had made a good defence. If it can be shown that the father represented the interests of the minors to the best of his ability, then there will be no reason to hold that the mortgage decree should not bind the minors simply because their father had been appointed to act as guardian-ad-litem.
6. The learned Judge in his judgment gives some reasons why he considers that the fathers of the minor plaintiffs were negligent. At p. 12 he says:
Besides a perusal of the judgment in that litigation goes to show that all possible pleas that could have been raised on behalf of the minors were not raised on their behalf by their guardians and this also shows that the guardians were grossly negligent in safeguarding the interests of the minors. That they were negligent in safeguarding the interests of the minors is further evidenced by the fact that no evidence was adduced in the case on behalf of the minors, although a plea of want of legal necessity had been raised in the defence.
7. A third party (maternal uncle of the sons of Bhagwati Sahai) had been appointed to act as guardian-ad-litem. The learned Judge stated that he too was negligent because he did not put any defence on behalf of the minors. In our opinion these are not good grounds for holding that the guardians were negligent. If the learned Judge intends to lay down that in all cases it is the duty of a guardian-ad-litem to put up a defence, whether it be true or false, then we disagree with this proposition. There may be cases in which a guardian-ad-litem has material available which would go to help the minors. If it is found that there was material and the guardian-ad-litem was negligent in not placing that before the Court, there is good reason for holding that he is negligent, but it cannot be assumed that in every case there is material which a guardian-ad-litem should place before the Court. We cannot sub-scribe to the proposition that it is necessary for a guardian-ad-litem to create and manufacture evidence in order to support the case of the minor whose guardian he is appointed. If the charge of negligence is brought against a guardian the person making the charge should support the allegations by satisfactory evidence. 'He must prove that there was evidence available which if it had been put before the Court might have led it to give a different decision. Unless that point is made out, it cannot be urged that a guardian is guilty of negligence. The learned Judge says that no evidence was adduced in the case on behalf of the minors although a plea of want of legal necessity had been raised in the defence. Now the learned Judge in making these remarks assumes that there was evidence that the mortgage deed had not been made for legal necessity. In this he was wrong. The plaintiffs in the suit before us have not produced any evidence to show that they had material available which would have convinced the Court trying the suit that the mortgage was made without any legal necessity. We will give an instance in which it may not be possible for the guardian-ad-litem to give evidence of want of legal necessity. The karta of a joint family executes a mortgage deed on behalf of the joint family. The mortgage deed is executed for payment of an antecedent debt. If the record on the face of it shows that the mortgage deed was executed for payment of antecedent debt, then we fail to understand what evidence the guardian-ad-litem could have led to establish that there was no case of legal necessity.
8. The question as to whether or not a guardian-ad-litem has been negligent is a pure question of Act and its decision depends on the evidence that might be adduced in the case. In the present case no evidence has been adduced owing to which the lower Court could come to a conclusion that the guardians were negligent. The learned Judge of the Court below made assumptions which are un-warranted and on their basis has come to the conclusion that the guardians were negligent. We are clearly of opinion for the reasons given above that no case of negligence has been made out by the plaintiffs and in our judgment, therefore, the learned Judge was wrong in holding that the guardians-ad-litem were negligent. In his judgment the learned Judge has relied on Murli Dhar v. Pitamber Lal A.I.R. 1922 All. 91 and also on Siraj Fatma v. Mahmood Ali : AIR1932All293 . The facts of the above-mentioned two cases were different. In the case reported in Murli Dhar v. Pitamber Lal A.I.R. 1922 All. 91 it had been found on the evidence adduced in the case that the deed had not been executed for legal necessity. The following observations to be found on p. 335 in that judgment will go to show that the view taken by the learned Judge of the Court below is not correct:
From all these authorities which have already been cited it is abundantly clear that in all such cases where a minor subsequently sues to set aside a decree as against him on the ground that he was not properly represented, the merits have to be gone into. Indeed, in the case relied on by Dr. Katju, viz., Collector of Meerut v. Umrao Singh A.I.R. 1915 All. 159, the decision of the Court seems to have been that it was necessary first of all to inquire whether the minor had been prejudiced by the appointment of the guardian, because if it is found that he had been prejudiced, then it was unnecessary to go into any other question.
9. Similarly in the other case there was evidence that the mortgage deed had not been executed for legal necessity. As pointed out in Murli Dhar v. Pitamber Lal A.I.R. 1922 All. 91 at p. 335 if it is found that the minor has not been prejudiced, then it is unnecessary to go into any other question. The minor can ask that relief should be granted to him only in those cases in which he is able to establish that the transaction was not binding upon him for want of legal necessity or some other cause. Unless he proved that there was an injury to his interest, he cannot succeed merely by showing that there was an irregularity in the appointment of a guardian-ad-litem. In the case before us the learned Judge should have taken evidence on the plea as to whether or not the mortgage deed had been created for legal necessity. If the mortgage deed was for legal necessity the minors would not be able to obtain a declaration to the effect that the decree is not binding upon them merely on the ground that the guardians-ad-litem were their own fathers. The result of our findings is that the decree granted by the Court below for a declaration cannot stand. Dr. Asthana who appeared in this case on behalf of the respondents frankly admitted that-the terms of the declaration granted to his clients were too wide. We do not know whether the mortgage deed was executed for legal necessity and unless that point is ascertained it cannot be held that the plaintiffs are entitled to the relief which has been granted to them.
10. For the reasons given above the decree passed by the Court below cannot be sustained. Even if it is held that the guardians were negligent, the plaintiffs cannot obtain the declaration which they seek. All that they can ask is that the decree passed in the mortgage suit should be vacated, that proper guardians should be appointed and then the question as to whether or not the mortgage deed is binding should be decided. Having regard to the circumstances of the case before us we propose to adopt this course. Such a course was approved by this Court in a case decided by two learned Judges of this Court which is reported in Bhagwan Dayal v. Param Sukh A.I.R. 1917 All. 477. It was laid down that where proceedings taken to appoint a guardian-ad-litem for a minor in a suit have been declared to be invalid, and the suit cannot proceed unless such proceedings are properly initiated and completed, the Court whose duty ultimately is to appoint such a guardian has inherent power under Section 151, Civil P.C., to revive the suit under Order 9, Rule 13 of the Code. We have already pointed out that in the present case after an appeal by the defendant had been presented to this Court, an application was made to the learned Judge of the Court below asking that proceedings should be revived and that application has been granted. We are, however, doubtful whether having regard to the fact that the order was passed during the pendency of the appeal in this Court it was a good order. We propose to set aside the order passed by the Court below and in substitution thereof we propose to make an order in this appeal directing that the mortgage decree which has already been passed be vacated and the Court below should take up the case and appoint proper guardians-ad-litem for the minors and then retry the case and decide it according to law.
11. For the reasons given above we allow this appeal and set aside the decree passed by the Court below. We also vacate the mortgage decree passed in Suit No. 80 of 1927 and direct the Court in which that suit is pending, that is, the Court of the Civil Judge of Shahjahanpur, to revive it, appoint proper guardians for the defendants who are minors in this case and retry the whole suit and decide it according to law. We allow the revision preferred by the mortgagors and set aside the order which the lower Court had passed in view of the fact that we have ourselves passed an order vacating the decree of the mortgage suit and for a trial de novo. The appellants will get their costs in this Court. No costs are allowed to the opposite party in connexion with the revision application. The costs in the Court below will abide the result. The costs in the lower Court, so far as Suit No. 19 of 1932 is concerned, will abide the result of the decree that might be passed in mortgage Suit No. 80 of 1927.