1. This was a suit shortly for a declaration that the decree in O.S. No. 156 of 1915 on the file of the Sub Court of Coimbatore is not binding on the plaintiffs in this suit. The Lower Appellate Court has found that the decree is not binding on the ground that the minor plaintiffs were not properly represented in that suit by their father as guardian ad litem, as the interest of the latter was adverse to theirs. I think the lower appellate Court further intended in para. 21 of the judgment to find that the guardian did not raise the proper defences to the suit on the minor's behalf thus imputing negligence to him in the conduct of the suit. The appeal is by the 1st defendant as purchaser in 1918 from the decree-holder in O.S. No. 156 of 1915 and the plaintiffs are the sons of the 2nd defendant. The suit O.S. No. 156 of 1915 was in respect of a mortgage, (Ex. C.) and the money, advanced was utilised for the purchase of new lands - this is admitted. The suit was brought in 1915 and the final decree (Ex. E) was passed in February 1917. It was against the father and his minor sons (inter alia) and directed sale of the property and if necessary a personal decree against the father, the 1st defendant in that suit. The written statement of the 1st defendant (Ex. B.) settled by his Vakil N. Ramaswami Iyer - alleged discharge and points as to payment of interest. The point made against defendant No. 1 is that he ought to have pleaded that the mortgage was not binding on the minors - not being for an antecedent debt. Leading up to the appointment of the father as guardian we have (Ex. F.) the plaintiff's affidavit asking for the appointment of himself and stating that he had no interest adverse to that of his minor sons. Lie was duly appointed by the Court. On 19th December 1915 the defendant on behalf of himself, and his minor sons, appointed vakil, N. Ramaswami Iyer to appear for him. The present suit was filed on 5th July 1918, by the minors through their mother, none of them having yet attained majority. Mr. A. Krishnaswami Iyer's first point for the appellant is that there was no disability on the part of the father and that, even if he was not a proper person to be appointed on the ground of interest, his appointment was a mere irregularity. Some of the cases cited for appellant turn on the distinction as to whether the proceedings against minors where their guardian's interest is adverse are mere nullities or only voidable. (See per Sadasiva Iyer, J., in Appeals No. 347 and 348 of 1919 (unreported) and Kuppuswami Iyengar v. Kamalammal I.L.R. (1920) M. 842, Mannu Lal v. Ghulam Abbas I.L.R.(1910) All. 287 . This distinction is without importance in the present case.
2. In S.A. No. 407 of 1919 to which my learned brother was a party it was held on the facts that there was no divergence of interest and in S.A. No. 1092 of 1918 to which he was also a party, it was held relying on Rashid-un-nisa v. Muhammad Ismail Khan I.L.R. (1909) All. 572 , that representation by a guardian whose interest is adverse is no representation at all. It is true that the Privy Council in Walian v Banke Behari Pershad Singh I.L.R.(1903) C. 1021 decided that defects in procedure are mere irregularities, in that case there was no formal order of appointment and neither the minors nor their mother were served with notice and in Mannu Lal v. Ghulam Abbas I.L.R.(1910) All. 287 the absence of an affidavit was held not sufficient to render the proceedings illegal and void. In Beni Prasad v. Lajja Ram I.L.R. (1916) All. 452 it was held that a decree against the minor properly represented cannot be set aside save on proof of fraud or collusion by the guardian. See also Raghubar Dyal Sahu v. Bhikya Lal Messer I.L.R. (1885) C. 69. Here in my opinion we have much more than a mere irregularity. It was improper and in fact illegal to appoint the father guardian at all...cf. Murlidhar v. Pitambar Lal I.L.R. (1922) All. 525 and Ranjibar Saha v. Dhiku Singh (1912) 16 C.L.J. 269. It was manifestly to his interest to throw as much of the burden of the mortgage debt as he could on the minor's shares and to exonerate his own share proportionately. It is difficult to imagine a case wherein defendant's interest could be more adverse to that of another than the present case. The debt not being antecedent, and the money having been borrowed for the purpose of buying new lands, the defence that the minors' shares were not liable ought to have prevailed if it had been set up on their behalf. The father and his vakil must have known that this defence was open, and I am prepared to hold if necessary that the guardian showed gross negligence in not setting up this defence within the decision in Punnayyah v. Viranna I.L.R. (1921) M. 425. However a decision as to this may be unnecessary as I hold that the law goes to this length that a minor represented by a guardian whose interest is adverse is not legally represented at all. This is I think the result of the decision in 31 All. 572 as followed in S.A. No. 1092 of 1918 (supra) in this Court. In the former case the Privy Council laid down that as the guardian ad litem had an adverse interest to that of the minor, the latter was never a party to the suit in the proper sense of the term. 'In that case the so-called guardian adlitem bought up the decree obtained against the estate of his deceased brother, whose daughter he represented as guardian ad litem. He thus appeared as the representative of the debtor and as the sole creditor of the estate in his own right. Their Lordships thereupon held that daughter was never represented at all. This disposes of the main point argued before us. There are two other points which may be briefly disposed of:
(1). That the District Munsif's Court had no jurisdiction to entertain the suit. Mr. A. Krishnaswami Iyer admitted we were bound by the ruling in Arunachellam Chetty v Rangasami Pillai I.L.R. (1914) M. 922 but desired to keep the point open in the. event of a further appeal.
(2). Appellant may ask for partition without being driven to a fresh suit in order to secure at least the share of the father 2nd defendant here Davud Beevi Ammal v. Radhakrishna Iyer (1922) 44 M.L.J. 309. This is not resisted by T. Narasimha Iyengar for respondents and will be decreed.
3. The appellant has failed on the main question raised before us and I would dismiss the appeal with costs. The decree of this Court will contain a provision to carry out the effect of the preceding paragraph of this judgment. The Civil Miscellaneous Appeal is therefore allowed but there will be no order as to casts.
4. I agree. The interests of the father and the sons in O.S. No. 156 of 1915 were divergent. A defence was open to the sons which was not open to the father and could not be pleaded by the father for himself, and the father would profit at the sons' expense, if that defence were not raised in the suit as in fact it was not. The question therefore is whether the decree passed in that suit, in which the father represented his sons as their guardian ad litem is a nullity so far as the sons are concerned and I think it is. In S.A. No. 407 of 1919 (unreported) there was as a matter of fact no adverse interest and that settled the question there. In the case in Kuppuswami Iyengar v. Kamalammal I.L.R. (1920) M. 842 it is not clear there was any adverse interest on the part of the mother. In S.A. No. 1092 of 1918, in the judgment to which I was a party, it was held that the appointment of a guardian whose interests were adverse, gives no legal representation at all and the decision obtained in such proceedings is null and void. That decision is based on Rashid-un-nissa v. Muhammad Ismail Khan I.L.R. (1909) All. 572 was discussed in Payidanna v. Lakshminarasamma I.L.R. (1914) M. 1076 and Wallis, J., (as he then was) appears to have thought that a decree passed against a minor, not properly represented, was a nullity, whereas Sadasiva Aiyar, J., was of opinion that the Privy Council did not definitely decide whether the sales in that case were void or merely voidable.
5. In S.A. No. 347 and 348 of 1919 (unreported) Sadasiva Iyer, J., expressed the opinion that the view taken in S.A. No. 1092 of 1918 (referred to above) is erroneous and Napier J., agreed with him. But both the learned Judges in that case found that there was as a matter of fact no adverse interest on the part of the guardian appointed. So the further discussion was really unnecessary.
6. In the case Rashid-un-nissa v. Muhammad Ismail Khan I.L.R. (1909) All. 572 in the application for execution Mauladad was the real applicant and yet he was the guardian ad litem of the minor respondent. It was held that the minor was not a party to the proceedings in the proper sense of the term. It is true that Mauladad was apparently not appointed guardian ad litem by the Court, but I do not think that affects the question. A plaintiff cannot represent a minor defendant as guardian ad litem. That is an extreme case. But the same disability exists to a less extent when the interests of a guardian are in other cases adverse to those of the minor.
7. In the present case the debt was not an antecedent debt and in the plaint it was alleged that the transaction was not binding while in the written statement there is no allegation that there was any prior contract such as would make the debt antecedent, though it has been suggested in arguments before us that such a contention might possibly have been raised.
8. It is clear therefore as already stated the interests of the father were adverse to those of his sons and the sons were not legally represented in the suit and the decree does not bind them, and this appeal, fails; but provision may be made for partition as this has been agreed to.
9. I agree with the order proposed in the last part of the judgment of my learned brother.