Walsh and Gokul Prasad, JJ.
1. Tins is a defendants appeal against a decree setting aside a decree the former suit was brought on a bond against the members of a joint Hindu family by the defendants, who obtained the decree. The suit was brought against the members of the family, including the karta or managing member, and also the other adult members, and also their minor brothers who were sued by name in their individual capacity. With regard to the minors, the following steps were taken. With reference to certain minor members of the family notice was issued by the then plaintiffs, defendants to the present suit, to one Gulab to show cause why he should not be appointed their guardian, and with reference to the other minor members, a similar notice was issued to one Jamna Das. These two persons did not give any express consent. On the other hand, they did not refuse. They remained silent. The court appointed them guardians. They were already themselves parties to the suit as defendants. They were, as has already been pointed out, members of the same family, and their interests in the suit, and their defence, if their had been one, were precisely identical with those of the minors. They did not appear in answer to the notice appointing them as guardians, and the court, under the circumstances, inferring, as was natural, that they had no objection, appointed them as guardians of the minors, in these circumstances, the suit was decreed against all the defendants, not ex pane in the strict sense of the word, but against the persons who were on the record as defendants, but who, having no defeuce, (lid not trouble to appear, as an undefended suit. The question raised by this second suit in which the minors seek to set aside the decree is whether the former decree ought to be held binding upon them in law. Tae lower appellate court, disagreeing with the first court, has decreed the suit on the ground that the minors were not properly represented. It has based its finding upon Order XXXII, Rule 4, Sub-clause (3), which provides that no person shall without his consent be appointed guardian for the suit. These words are new in the existing Code and are stronger than anything contained in the old Code, but were clearly put in for the protection of the person whom it was proposed to appoint. The lower appellate court has held that the consent mentioned in that sub-clause must be express. It disagreed with the first court in holding that it might be implied and held that it must be obtained. In our view this is untenable, Many instances may be given from legislation where consent may be implied and is not necessarily to be expressed in any document or record, and it is germane to the argument to point out that in the order itself which we are called upon to construe, another of the rules, namely, Order XXXII, Rule 7, Sub-section (1), dealing with the leave required from the court for a next friend or guardian to enter into any compromise enacts that such leave shall be expressly recorded in the proceedings. It, therefore, appears that in these rules of procedure, which after all are only directory, where the Legislature requires something to be expressly set out in writing or recorded, it says so in so many words. The lower appellate court is right in holding that the amended form, which the Rules Committee of the High Court has recently directed to be issued to the proposed guardian, cannot of itself alter the law or make that binding upon the guardian which would otherwise not be binding; but in our view it is a question of fact in each case to be determined by the court appointing the guardian, such determination of course to be subject to review in any subsequent suit challenging the appointment, whether under all the circumstances of the case it can be properly held that the particular guardian did or did not consent or was not willing to act. We do not agree with the view of the lower appellate court that the absence of a proposed guardian to a notice calling upon him, cannot, in any circumstance, raise the presumption of consent. Circumstances such as those which we have enumerated is this judgment are very strong to raise the presumption that the brothers in question had no reason for refusing, and hade-very reason for consenting, and by their silence did consent. That finding of fact has been established beyond dispute. The only question is whether there is anything in the eyes of the law sufficient to justify that finding of fact. We hold that consent under this rule may be implied from conduct, and that it was rightly implied in the circumstances of this case. If this view is correct, there is no irregularity. Even if there had been any irregularity, we should have considered ourselves bound by the authorities which have been cited to us to disagree with the lower appellate court upon the ground that no prejudice had been shown to the plaintiffs. Three authorities have been cited upon this point. We think that the rule which ought to guide the courts in these matters is best sought in the observation's of the Privy Council in the case of Walian v. Bankey Behari Pershad Singh (1903) I.L.R. 30 Calc. 1021 (1031). It is true that that decision was under a different provision in the earlier Code of 1882, but in substance there is no distinction between that case and this, and their Lordships' observations must be accepted in their widest significance as applicable to all similar cases, whatever detailed variation may take place in the actual rules governing the appointment of guardians. They laid great stress upon the fact that there was nothing to suggest that the interests of the minor were not duly protected and it had not been shown that the alleged irregularity had caused any prejudice to the plaintiffs. There is a decision of this Court in the case of Ram Barechha Ram v. Tarak Tewari (1916) 14 A.L.J. 59, in which it was distinctly held by Mr. Justice Pigoott and one of us that, whatever the irregularity may be, the moment it is shown that there has been no fraud and that the minor's interests have not been prejudiced, the minor's right to set aside the proceedings must be denied. In the course of the argument Mr. Justice Piggott used an expression which we adopt: 'The question whether the minor was in fact prejudiced depends upon the particular circumstances of each case and does not necessarily follow from an irregularity in the appointment of a guardian ad litem.' In the judgment of one of us it was pointed out that there are in these cases two distinct issues, (1) whether the appointment was itself irregular, and (2) whether the minors have been prejudiced by such irregularity. Following the decision in that case and having regard to I the fact that no prejudice was either alleged or shown at the hearing of this case in the courts below, we should hold in any event that the plaintiffs have failed to establish their legal right to succeed in this suit. The decree of the lower appellate court must be reversed and the decree of the first court restored with costs.