1. The plaintiffs and the first defendant are Mahomedans following the Marumakkatayam system of law in South Canara. Many years ago when their tarwad was about to become extinct, the then surviving male member Kunhammad adopted two females Kunhamma and Beiyathumma. The former of these died, leaving only a son Kutti Ammad. The said Beiyathumma having no issue adopted into the family the first defendant the daughter of a natural sister of hers and the first plaintiff, younger than the first defendant, the daughter of the first defendant's sister the second and third plaintiffs are the minor children of the first defendant whose ages are stated to be 13 and 10 years respectively, represented by their next friend the natural brother of the first defendant. Kutti Ammad, who became the senior member of the tarwad after Beiyathumma, died in September 1891. Before his death he had executed throe bonds, one for Rs. 8,000 on the 28th January 1891 to one Vythan Kutti, another for Rs. 4,000 on the 21st August 1891 to the second defendant and a third for Rs. 1,500 on the same day to the fourth defendant, the advances having been, according to the instruments, made for the necessities of the tarwad. The third defendant who is the assignee of the bond in favour of Vytban Kutti instituted Original Suit No. 28 of 1898 for the recovery of the amount due under the bond in the District Court of North Malabar against the first defendant and the plaintiffs. The second defendant brought Original Suit No. 41 of 1898 in the same Court for the recovery of the amount duo under his bond, against the same parties. The fourth defendant instituted Original Suit No. 365 of 1898 in the Court of the District Munsif of Cannanore for the recovery of the amount due to him, impleading the same persons as defendants. In those throe suits the present first defendant was appointed guardian ad litem of the present plaintiffs, her co-defendants. In all of them decrees were passed in accordance with compromises entered into by the respective plaintiffs, with the first defendant on her own behalf and on behalf of the present plaintiffs, leave to enter into the compromises having been previously obtained from the Courts. Applications for execution of the decrees by sale of the tarwad properties of the plaintiffs and the first defendant were made and granted, and properties were advertised for sale. But no sales took place, the same having been adjourned from time to time at the request of the judgment-debtors up to the beginning of the year 1901. On the 4th of March of that year the present suit was instituted for the purpose of removing the first defendant from her position as Karnavathi of the tarwad and restraining defendants Nos. 2 to 4 from selling any of the tarwad properties in execution of their decrees. The District Judge granted a decree to the plaintiffs as prayed for. The first defendant has acquiesced in the decree. The present appeals are by the second, third and fourth defendants only.
2. The decision of the District Judge against the appellants is upon the grounds that Kutti Ammad was a minor on the dates, on which the three bonds referred to were executed and that the first defendant though fully aware of the fact of Kutti Ammad's minority at the time of the execution of those bonds, wilfully refrained from setting up that point in defence in the suits brought by the appellants and in collusion with them entered into the compromises upon which the decrees were passed.
3. Their Lordships then discussed the evidence at, length and found that the deceased Kutti Ammad was not a minor at the time he executed the bonds and that the first defendant was not guilty 'of any fraud in effecting the compromise.
4. In the view we take of the grounds on which the decision of the District Judge rests, it follows that the decree made by him against the appellants could, not stand unless a different result must ensue with reference to the objection urged by Mr. Richmond that the present plaintiffs are not bound by the compromise decrees as their guardian ad litem was at the time a married woman. That she was a married woman is, we think, true. How never the less she came to he appointed as guardian ad litem does not appear. Most probably her status as a married woman was treated as immaterial on account of the fact that she was the undoubted head of the tarwad and as such entitled to represent till the members thereof in spite of her marriage. Or it may be that her married state was overlooked because of the non-recognition of marriage as a legal institution in the case of the large majority of persons following the Marumakkattayam system of law. However this may be, the appointment of the first defendant as guardian ad litem of her co-defendants, the present plaintiffs, was doubtless a departure from the provisions of the Civil Procedure Code on the point. The objection to a married woman being appointed guardian ad litem in England owes its origin chiefly to the incompetence of a married woman to sue and be sued and to be answerable for costs. See In re Duke of Somerset Thynne v. St. Maur L.R. 34 Ch. D. 465 And though the objection finds a place in our Code of Procedure it is to be noted that the draft Code now before the Legislative Council proposes to modify the law by removing such disability on the part of married women in this country. (Select Committee's Report, Clause 445.) It may be added that the disability on the question exists hero only in respect of a married woman's appointment as guardian ad litem, and not in respect of her acting as next friend as is the case in England. The appointment of the first defendant must therefore be held to be a more irregularity cf. Mussammat Bibi Walian v. Banke Behari Pershad L.R. 30 I.A. 182, which did not prejudice and could not have prejudiced the plaintiffs in the slighest decree. That the compromises affected the first defendant as much as they did the plaintiffs is a circumstance pointing to their having been come to, bona fide. Further the terms thereof were arrived at with the assistance of third persona who befriended both sots of parties and apparently through their mediation the appellants consented to make considerable reductions in the amounts claimed by them according to the terms of their bonds. And lastly the leave of the Court was duly obtained in the case of each compromise. Now it is clear law that a compromise sanctioned by Court on the part of an infant cannot be set aside by him on any ground which would be insufficient to set aside a compromise between persons sui juris Brooke v. Lord Mostyn DeG.J. & S. 373 at p. 416. the reversal by the House of Lords of the decision of the Lords Justices in that case was on the facts and did not touch the statement of the law to the above effect by Lord Justice Turner in Mostyn v. Brooke L.R. 4 H.L. 304. Though there is a vague statement in the plaint that the first defendant acted in collusion with the appellants in obtaining the decrees in question no specific ground or grounds which would invalidate the leave granted by the Courts and avoid the decrees made in pursuance of such leave, are alleged and none proved. How then can the appellants be restrained from executing the decrees against the tarwad properties?
5. For all the foregoing reasons we allow the appeal and modify the decree of the District Judge by dismissing the suit in so far as the appellants are concerned with costs in this and in the lower Court.