1. The facts out of which this appeal arises are these: One Yad Ram made a mortgage of joint ancestral property in favour of Ganeshi Singh appellant on the 8th of February 1897. On the 7th of February 1908 a suit was brought by the mortgagee to enforce the mortgage and the defendants to the suit were Yad Ram and his four sons, two of whom, Shib Dayal and Shib Singh, were of full age and the other two, namely, Shyam Singh and Sheo Dan Singh were minors. An application was made to the Court, supported apparently by an affidavit, praying that Yad Ram should be appointed guardian ad litem of the two minor defendants. This application was granted by the Court and Yad Ram was appointed guardian of the minors for the suit. This proceeding took place under the provisions of the Code of Civil Procedure which was in force at the time when the suit was filed. The suit was not defended and an ex parte decree was made in favour of the* mortgagee on the 10th of March 1909. The present suit was brought on the 5th of November 1914 by the four sons of Yad Ram for a declaration that the decree obtained by the mortgagee, Ganeshi Singh, on the 10th of March 1909 was not binding on them. The grounds upon which they brought the suit were that the decree was obtained fraudulently: that the minors were not properly represented in the suit. The Court of first instance dismissed the suit, finding that there was no fraud and that the minors were properly represented by their father, who was the manager of the joint family of which he and his sons were members. The lower Appellate Court agreed with the Court of first instance in finding that there was no fraud 'and that the allegation of fraud was not established. It dismissed the appeal of the two adult sons of Yad Ram but decreed the appeal and the suit of the minors on two grounds, first, that the appointment of the guardian was in contravention of the provisions of Order XXXII, Rule 3, of the present Code of Civil Procedure, and, secondly, that Yad Ram was not a fit and proper person to be appointed guardian of the minors.
2. As regards the first ground of the lower Appellate Court's decision it seems to us to be erroneous. As we have stated above, the suit was filed and the guardian was appointed when the Code of Civil Procedure of 1882 was in force. Section 456 of the Code provided the procedure for the appointment of a guardian ad litem. It did not require that notice of the application for the appointment of such a guardian was to go to the minors personally and was to be served on them personally. Therefore, the procedure adopted by the Court was in accordance with the provisions of Section 456. Then remains the question whether the guardian appointed was a fit find proper person to be appointed having regard to the provisions of Section 457. It is contended that Yad Ram had an interest adverse to that of the minors. It does not necessarily follow that because he was the mortgagor, his interests were adverse to those of his sons who with him formed a joint family of which he was the managing member. It is not suggested in the plaint that the debt was incurred for immoral purposes. All that is said is that it was not a lawful debt. By this we suppose it is meant that the debt was not incurred for family necessity. If that had been a true defence to the suit of the mortgagee, one would have expected the adult sons of Yad Ram to have appeared and put forward that defence. They did not do so but allowed a decree to be passed against them. Upon the findings of both the Courts below the service of summons was duly effected and the allegations of the plaintiffs that they had no notice of the suit is untrue. We think that the learned Additional Judge was not right in holding that because Yad Ram was the mortgagor his interest was necessarily adverse to that of his minor sons. The proceedings in the previous suit were not, therefore, vitiated by any defect in the appointment of the guardian ad litem of the minor plaintiffs to this suit and their claim was rightly dismissed by the Court of first instance. We allow the appeal, set aside the decree of the Court below and restore that of the Court of first instance with costs in all Courts.
3. We may mention that the respondent No. 2, Sheo Dan Singh, who has not appeared in this appeal was at the front when the appeal was filed, but he was subsequently served when he was in this country but has not chosen to appear. The appeal was, therefore, heard in his absence.