1. This is a suit for a declaration that the decree in O.S. No. 334 of 1918 on the file of the District Munsif of Tiruvadi is not binding upon the two plaintiffs. The District Munsif dismissed the suit. The Subordinate Judge concurred with him as regards the 1st plaintiff but found that the 2nd plaintiff was entitled to the declaration prayed for. Accordingly the defendant appeals by his legal representative.
2. It is significant that in the issues framed in the first Court the pleas of fraud' and collusion were given up and on turning to the plaint I do not find that any of the pleas in it were advanced. It is now argued that negligence apart from fraud and collusion would have been a good plea but it is not to be found in the plaint and the issues. Considering that it is a question of fact it is too late to take the point as the learned Subordinate Judge has taken it in appeal. That negligence is a question of fact is laid down in Karri Bapanma v. Yerramma : AIR1923Mad718 . The only valid point for his determination was Issue No. II. The learned Subordinate Judge agrees with the District Munsif that the consent of the guardian ad litem may fairly be presumed from the fact that he accepted the summons and I also agree. He finds, however, that the appointment was void because the in terest of the brother was adverse to that of the 2nd plaintiff. That this would not be sufficient to invalidate the appointment without any further proof of prejudice is ruled in Ganeshi Singh v. Shyam Singh. 52 INDCAS 636, Kuppuswanii Iyengar v. Kamalammal : (1920)39MLJ375 , and Chhatter Singh v. Tej Singh (1920) 18 ALJ 956 and no proof of prejudice is forthcoming. It is not enough to suggest that the Court may look into the papers to find that the guardian ad litent did not properly represent the plaintiffs in the previous suit and therefore his appointment may be presumed to Be prejudicial. Definite prejudice should have been alleged in the plaint and framed in the issues. There must be proof that the guardian ad litem fould have adduced useful evidence or was aware that such evidence was available--see Ramaswami Chetty v. Doraimmi (1922) 44MLJ 299. I find therefore that the decree is binding also upon 2nd plaintiff.
3. The second appeal is accordingly allowed with costs here and in the Lower Appellate Courp.