Venkataraman Rao, J.
1. The plaintiff's suit is a frivolous one and the learned Judge in decreeing it has disregarded certain well-settled principles of law. The plaintiff has brought this suit with a view to have it declared that the decree obtained by defendants 5 and 6 against himself and defendants 1 to 4 (the members of his family) in O.S. No. 21 of 1931 is not binding upon him and should be set aside. The first defendant acting for himself and his minor sons of whom the plaintiff was one, had executed in favour of defendants 5 and 6 a deed of mortgage on the 2nd July, 1926; it was to enforce this mortgage that the suit mentioned above had been brought by defendants 5 and 6. To the suit were impleaded as defendants, the plaintiff's father, the plaintiff himself and his two brothers the last mentioned three having been represented in the action by their mother as their guardian ad litem. During the pendency of that suit, one of the three brothers attained majority and was declared a major. In due course, on the 24th August, 1931, judgment was delivered decreeing the suit brought by the mortgagees, that is, the present defendants 5 and 6.
2. The plaintiff seeks to get the decree set aside on the ground that his mother, though she had filed a written statement, did not appear at the trial and allowed the suit, so far as the minors were concerned, to proceed ex parte. He further alleges that the decree was vitiated by collusion between the mortgagees and his mother. In a case of this sort, it is the duty of the plaintiff to prove the collusion and the negligence set up by him; the burden lay upon him of proving his allegations and that burden is not discharged by merely showing that his mother, who had put forward a defence, did not appear to substantiate it. The defence might have been untenable or worthless and it does not follow that merely because a guardian ad litem chooses to raise a defence, she is bound to persist in it, whether good or bad, to the end. In this respect, there is no difference whatsoever between a guardian failing to raise a defence and abandoning a defence which has been raised. If at the very outset, the guardian thinks that there is no available defence to the action, he may refrain from defending it; likewise if after filing an untenable defence, the guardian realises that the defence put forward is bad or worthless, there is nothing in law to compel him to proceed with or persist in it. These are principles of law which are well established and the learned Judge has entirely ignored them. For the plaintiff to succeed he must show that he had an available defence which, if substantiated in the previous suit, would have led to a different result, in other words as their Lordships point out in Baboo Lekraj Roy v. Baboo Mahtab Chand (1871) 14 M.I.A. 393 the burden of proving that circumstances exist which vitiate the decree, is upon the plaintiff and it is an element in that proof, without which the plaintiff's case would amount to nothing that there was an available good ground of defence which the guardian failed to put forward at the hearing (p. 399). The same principle has been laid down in Parmeswari Pershad Narayan Singh v. Sheo Dutt Rai (1907) 6 C.L.J. 448 and Jhumak Singh v. Sheo Dutt Rai (1907) 6 C.L.J. 448 which has since been repeatedly followed in numerous decisions. As the learned Judges observe there:
It is not every kind of negligence, nor any amount of negligence which would render proceedings, otherwise regular and proper, liable to be opened up ; it must be such negligence, as leads to the loss of a right, which, if the suit had been conducted or resisted with due care, must have been successfully asserted.
3. See also Punnayyah v. Viranna (1921) 42 M.L.J. 429 : I.L.R. 45 Mad. 425. The question is, has the plaintiff here established that his guardian sacrificed his interests by failing to substantiate a good ground of defence which was available to him? On this point there can be no doubt whatever that the defence first put forward and later abandoned was a thoroughly false and worthless defence.
4. As already stated, O.S. No. 21 of 1931 was brought to enforce a mortgage granted by the minors' father. There had been dealings extending over a long period between him on the one hand and the mortgagees on the other. There were at least three settlements of account, one in 1922, another in 1923 and the final one in 1926. If proof were needed that these settlements were bona fide, it is furnished by the fact that some of them were attested by the minors' maternal uncles. One defence raised in the previous suit was that these settlements were not intended to be final, but there was some kind of understanding that when the time arrived for payment, the accounts should again be looked into and examined. So far as this ground of defence is concerned, the lower Court does not even notice it, as no one appears to have treated it seriously. The suit was defended on a further ground, namely, that the debt incurred in the course of the trade referred to above, which formed the consideration for the mortgage, was not binding upon the minors. In dealing with this the learned Judge has completely misdirected himself. Relying upon Benares Bank, Ltd. v. Hari Narain (1932) 63 M.L.J. 92 : L.R. 59 L.A. 300 : I.L.R. 54 All. 564 (P.C.) he says that the father had no right to start a new trade, but the judge forgets that the point before him was not whether the trade was a new one or not, but whether the debt in question could or could not support the mortgage. He ignores the fundamental fact that the debt, by the date of the mortgage, had become an antecedent one and that it was not suggested (and indeed could not be) that it was either illegal or immoral. Beyond a shadow of doubt, it had become antecedent in time as well as in fact and Mr. Somasundaram, the minor's Counsel, properly enough, did not press this point before us.
5. It is thus clear that there was no valid defence which could have been put forward by the minor's mother in the previous suit. She raised a defence which ought never to have been put forward and the law does not require that a false t>r untenable defence should be persisted in. The lower Court's judgment cannot stand and is set aside. The suit is accordingly dismissed as against the 5th and 6th defendants and their appeal is allowed with costs throughout. The court-fee payable upon the plaint to the Government will be recovered from the plaintiff.
6. The property has been valued at Rs. 11,364-7-0 and the court-fee on the plaint will be paid upon a fifth of that sum. The advocate's fee will also be calculated upon the same amount.