1. In this case the adoptive mother of a minor executed in 1918, though the exact date is not given, a promissory note purporting to act as his guardian and to execute it on his behalf. A suit was brought, O.S. No. 348 of 1921, on the promissory note and the plaintiff applied to have the adoptive mother appointed as the guardian-ad-litem of the minor, notwithstanding the fact that she was the executant of the promissory note; and she was so appointed. She raised no defence to the suit and an ex parte decree was passed; before the decree was passed the natural father had been put in as guardian of the minor and no steps were taken to inform the Court of the existence of the natural father as guardian. But no attempt appears to have been made to substitute him for the adoptive mother as guardian-ad-litem in the suit, and he was not so substituted. In these circumstances, the learned Judges propounded three questions for the opinion of a Full Bench.
2. The first is this:
Whether the appointment of a person who executed a document or enters into a transaction as the guardian-ad-litem of a minor is valid in a suit on the document or transaction
3. As framed this is almost meaningless; what appears to be meant is this : When a person has executed a document or entered into a transaction on behalf of a minor as his guardian, can that same person be validly appointed guardian-ad-litem of the minor in a suit brought against him on the document or transaction in question?
4. It seems to us that this matter cannot be treated as a pure question of law. The appointment of the guardian-ad-litem purported to be an exercise of judicial discretion and it seems to us impossible to say that the Court had no discretion in any conceivable case to appoint such a person and that such an appointment would necessarily be void without any enquiry into the particular circumstances of the case. The Code does not say so, and we do not think we can possibly invent such a judicial rule for ourselves. Indeed cases can be imagined in which a Court with the facts before it might think that the guardian and executant of the document was quite a suitable person to conduct the suit. Take for instance the case which was put in the course of the argument where the defence was going to be that the guardian when she executed the document was under the influence of fraud or coercion on the part of the payee. No one could suggest that in that event her interest could be said to be necessarily adverse to the minor merely because she signed the actual document herself. That in a vast majority of cases to appoint such a person would be wholly undesirable is manifest. In this case it probably was very undesirable. In our opinion that is a question of fact governed by no hard-and-fast rule of law and there is nothing either in the Code or in any of the authorities to lay down not merely that such a person should not as a rule be appointed but cannot in any circumstances be validly appointed.
5. The second question is this:
Whether the appointment of a person whose interests are adverse to those of the minor as his guardian-ad-litem renders the decree void against the minor or only voidable by him.
6. This as framed begs the very question raised by the first point because it assumes that any person in the position of the adoptive mother here had an interest which without evidence or further consideration must, ex hypothesi, be adverse to the interests of the minor. In our opinion it would be premature to decide this as an abstract question of law without a finding on a decision of fact directed to the express point that the interests of this guardian-ad-litem were adverse to those of the minor. At present all we have is the fact that a Court appointed her, which is prima facie a judicial expression of opinion that her interests were not adverse. The learned Judge, we presume, was aware of, or his attention was drawn to, the provisions of Order 32, Rule 3, and he must have known the sole fact which is placed before us, namely, that the proposed guardian-ad-litem was herself the executant of the document. It may be that he failed to exercise a judicial discretion in coming to the conclusion that it was a proper step to appoint her, and that an Appellate Court might have so found if invoked on the ground that on the materials before the learned. Judge who appointed her there was everything to show that she was unfit and nothing to show that she was fit. That has not been done. In these circumstances, we cannot see our way to answer the second question any more than the first as involving a mere point of law.
7. Still less is it possible at this stage to deal with the third question put up whether objection could be taken in execution that the decree is void, because that would depend on the determination of the other two questions which we have held not to be questions of law but to require decisions of fact which do not exist.