1. This is an appeal against the decree of the Subordinate Judge of Calicut in O.S. No. 30 of 1919 on his file dismissing the plaintiff's suit and the plaintiff is the appellant before us.
2. Plaintiff became the sole surviving member of his Komancheri Tarwad on the death of his mother and sister in March, 1907. He was then solely entitled to the tarwad properties. He was at the time a minor of 8 years age and his father the 2nd defendant who had previously nianaged the affairs of his tarwad as his mother's agent continued in management of his affairs as his de facto guardian. Being a member of a Marumakkatayam tarwad his father was not his legal guardian, in fact he had no legal guardian. At that time there was a mortgage debt on the tarwad lands m favour of one Bhattathiripad, of Rs. 9,000 which was admittedly binding. To pay off this debt and to meet other alleged necessities the father acting as plaintiff's guardian borrowed in March, 1908 a sum of Rs. 12,000 from the 1st defendant and executed a usufructuary mortgage to him-Copy, Ex. A. Two days afterwards he also executed a verumpattom chit or lease for himself and as plaintiff's guardian and took back the pro-perties on lease; see copy Ex. G. Under this arrangement plaintiff was newly made liable with his father to pay a rent of Rs. 1,200 a year Such an obligation did not exist under the Bhattathiripad's mortgage. The rent was allowed to fall into arrears by the 2nd defendant and he executed a pronote, copy Ex. T, for Rs. 692-12-u to the 1st defendant, again acting for himself and as guardian of his son. The 1st defendant brought OrderS, No. 37 of 1915 on this note and got a decree against both the father and the son. In this suit the Head Clerk of the Court was appointed as the plaintiff's guardian Subsequently the 1st defendant attached the properties mortgaged to him subject to his own mortgage and got them sold and purchased them himself in Court auction.
3. Plaintiff brings this suit as a major and prays that the mortgage Ex. A may be declared to be invalid to the extent of Rs. 2,200 and odd as not being supported by proper consideration except as to. the amount due under the prior mortgage which had been paid off. He also prays for a declaration that the lease Ex. G. is not binding on him at all, as it is not for his benefit or necessity but on the other hand it imposed on him an onerous liability to pay Rs. 1,200 a year as rent. He states that the decree Ex. IX was obtained by fraud, that he was not represented in it by a proper guardian and the Court guardian appointed for him acted with gross negligence in the conduct of the case and he therefore claims that it is not binding on him; and he further prays that the sale held in execution of that decree may be set aside as invalid.
4. The first point taken against the plaintiff in the lower court was that at the date of suit he was a minor and the suit as brought without a next friend was unsustainable and must be dismissed. Plaintiff was over 18 years of age but below 21 when the suit was filed and the question whether he was a major or not turns on whether a guardian had been appointed for him under the Guardian and Wards Act. It is not very clear on the evidence whether such an appointment had been made. An application had been filed under the Act by plaintiff's uncle P.W. 2 and the District Judge had passed an order that the plaintiff's father the 2nd defendant would be appointed guardian of the plaintiff's person and property on his furnishing security. Though security was tendered no steps were taken by the Court to test it or get a proper security bond executed and no formal order of appointment was drawn up. Nevertheless in several subsequeent court proceedings the 2nd defendant was treated as a properly appointed guardian for plaintiff; and it was also held that his age of majority had been extended to 21 in consequence. It is not however necessary to decide the point definitely for even assuming that the 21 years' rule applied and the plaintiff was a minor at the date of suit he became a major when the suit was pending in the lower court and, is now a major; and he has before us through his learned Vakil agreed to be bound by all the proceedings that have taken place in the lower court. Order 32 Rule 2 of the Code of Civil Procedure is applicable only when on the face of the plaint the plaintiff appears to be a minor, see Beni Ran Dutt v. Ram Lal Dhukri I.L.R.(1892) C. 189. That case was decided under the old Code but the new Code makes no change on the point. If on an issue raised and tried in the case, the Court finds that the plaintiff is a minor it should not dismiss the suit at once but should allow a reasonable time for a next friend to come on record and go on with the suit and it is only if no one comes forward that it should reject the plaint. Beni Ram Dutt v. Ram Lal Dhukri I.L.R(1892) . C. 189 is an authority for this position also. In the present case before the Court decided that the plaintiff was a minor he had become a major and there was no necessity thereafter to have a next friend for him. Plaintiff may no doubt have elected to drop the present suit as not properly instituted but he was not bound to do so; he could affirm the previous proceedings and continue the suit. That is the principle embodied in Order 32 Rule 12. A some what similar case was considered in Sankaran Nambi v. Davaki Antherjanom 43 M.L.J. 572 and it was ruled there that when a next friend has been appointed the objection that the suit was originally by a minor without a next friend can no longer be urged.
5. The next point for consideration is whether the Court sale was valid, for if it was, the property has passed to the 1st defendant and the plaintiff has no more interest in it and cannot maintain this suit. The purchaser in Court auction was the decree holder himself and not any 3rd party and we have not therefore to consider any rights or equities of bona fide purchasers in Court auction. The validity of the sale in this case thus depends on the question whether the decree Ex. IX was binding on the plaintiff or not. The plaintiff contends that the appointment of a court guardian for him was null and void as it was obtained by the 1st defendant by means of a false affidavit and that the 2nd defendant being a guardian appointed under the Guardian and Wards Act there was no reason and none is recorded why he should not have been appointed; and further that the Court guardian was guilty of gross negligence. It will lead to clearness to consider these points separately.
6. Taking the 2nd point first it will be observed that the 2nd 'defendant was proposed by the 1st defendant as plaintiff's guardian ad litem in the first instance. Four notices were taken out to him; the last of them Ex. XIII (c) was tendered to him personally but he refused to receive it and sign the copy and it was thereupon affixed to his door. That was rightly accepted as good service by the Court under O.V. Rules 16 and 17. The way in which he behaved when the notice was Rendered to him showed clearly that he was not willing to act as guardian and the petition to appoint him guardian was therefore dismissed. The reasons no doubt are not stated in the order but it is apparent what they were. Considering that he was the person who had executed the promissory note on which the suit was brought against the minor he would have been an unsuitable guardian in any event as his interests would clash with the minor's interests. It was however argued that as he was a guardian appointed by a competent authority under the guardian and Wards Act the Court acted improperly in superseding him and appointing a Court guardian without recording proper reasons under Order 32 Rule 4 Clause (2). Now in the first-place as I have already said it is not very clear that he was so appointed, plaintiff's own case being that he was not so appointed. But even if we take it that he had been so appointed the failure to record reasons under Rule 4 Clause (2) is only an irregularity in my opinion and will not by itself vitiate the decree if the minor is in fact properly represented by a guardian appointed by court. The Allahabad High Court has held that the absence of a formal order removing the certificated guardian will not vitiate proceedings if another next friend is allowed to sue and the suit will not be defeated solely upon the ground that no formal permission had been granted. See Sridar Rao v. Ram Lal I.L.R. (1908) A. 7. The case in Bhimaji v. Hussain Saheb I.L.R(1920) . 43 808 is easily distinguishable as there was no attempt at all made there to have the certificated guardian appointed as guardian ad litem as here.
7. But the more serious objection to the appointment of the Court guardian is that his appointment was procured by means of a false affidavit. The affidavit filed on 1st defendant's behalf by his brother, D.W. 5, Ex X (a) contains a statement that besides the 2nd defendant plaintiff had no next of kin. The statement is false as there was at least one person known to 1st defendant and his brother namely plaintiff's maternal uncle Ravunni Nair P.W. 2 who though he belonged to a different tarwad as plaintiff's mother had been adopted from his tarwad to plaintiff's Komancheri Tarwad, was certainly plaintiff's next of kin just like his father. Yet this information was suppressed. The only explanation D.W. 5 gave for his action in cross-examination is that Ravunni Nair was ' not proposed as guardian because the Court held that the 2nd defendant was the proper person to act as guardian;' this apparently refers to Ex. F. The explanation however is worthless and we must hold that the 1st defendant was guilty of fraud in law in making a false statement and thereby getting a Court officer appointed guardian. The appointment is thus vitiated by fraud and is of no legal effect. This brings the case within the principle of the ruling in the Privy Council in Bhagwan Dayal v. Param Sukh Das I.L.R.(1915) A. 179 for here as there the case must be treated as having been proceeded with without a legally appointed guardian ad litem. The decree and the subsequent sale are therefore not binding on the plaintiff.
8. It was also urged that even if we take that the appointment of the Court guardian was a regular and proper one, the decree and sale should still be set aside because there was gross negligence on his part in the conduct of the case. It is not necessary to consider this point as I have already held that the decree against the plaintiff and the sale must be set aside on another ground.
9. Plaintiff has also asked for declarations that the lease is not binding on him and that the mortgage is invalid to a certain extent. Now clearly the lease which imposes an onerous obligation on a minor to pay a rent of Rs. 1,200 a year is not bind-on the plaintiff. A guardian has no power to enter into engagements on behalf of his minor ward making him liable under such onerous covenants. See Indur Chunder Singh v. Radha Kishore Ghon I.L.R. (1892) C. 507 (P.C.), Mir Sarwarjan v. Fakhru'ddin Mahomed Choudhuri I.L.R. (1911) C. 232, Wagkela Rajsanji v. Sketch Mas-luddm I.L.R. (1887) B. 551 (P.C.) and Narayana Rao v. Venkata Subba Rao (1919) 38 M.L.J. 77. It was however argued that the lease and the mortgage were one and the same transaction and that as the creditor the 1st defendant was not prepared to lend except on condition that such a lease should be taken it was justified by necessity in the same manner as the mortgage. This argument cannot be supported for even if the two be parts of the same transaction there is no proof that there was any necessity to borrow at all. There was no pressure from the previous mortgagee. The action of a de facto guardian, as 2nd defendant was, will be binding on the minor's property only if it is for the minor's benefit or necessity. That is not proved in this case and the lease so far as the plaintiff is included in it is therefore not valid.
10. As regards the mortgage the plaintiff has conceded in this Court that it is valid not only to the extent of the Bhattathiripad's mortgage paid off but also to the extent of the decree debt in O.S. No. 364 of 1905 and for the amount due to Unnith Amma i.e. in all for about Rs. 11,000, the objections being confined to about Rs. 1,000 not properly accounted for. There is however a preliminary difficulty in plaintiff's way in getting any declaration as regards the lease and the mortgage inasmuch as no declaration can be given to him under Section 42 of the Specific Relief Act if he can claim further relief. In this case on my view it is clearly open to him to redeem the mortgage to the 1st defendant or such portion of it as is valid. The Subordinate Judge holds that plaintiff is not entitled to redeem without a demand for payment by the 1st defendant and cites Navunni v. Ramaswami Pattar (1918) 52 I.C. 738 in support of his view that Section 42 will not apply in such circumstances. But this view is based on a misreading of the covenant in Ex. A. That only provides that if the mortgagee wants payment he must give notice to be paid on the day after ' Ucharal ' or the beginning of the cultivation season in any year and not at other times. This provision does not affect the mortgagor's right to redeem at any time he likes. The covenant is not mutual by its wording. As the mortgage and the lease are clearly parts of one and the same transaction no declaration can be given regarding either without the plaintiff suing to redeem. The case cited in Navunni v. Ramaswami Pallar (1918) 52 I.C. 738 itself recognises this position. Plaintiff's vakil then asks that his client may be permitted to amend his plaint by adding a prayer for redemption and paying the necessary Court-fees on the plaint and the memo of appeal. This is rightly not opposed by the 1st defendant's vakil and may I think be granted. Plaintiff is allowed to amend his plaint and pay the necessary Court-fees for it and for the appeal in this Court in two weeks from this date. The appeal is adjourned for the purpose.
11. This appeal again coming on for hearing, after i
12. The Court delivered the following