1. The facts of this second appeal may be stated as follows:
The plaintiff's father Subbarayudu died before 1911 leaving three sons and a widow. The eldest son, defendant 1, was adopted by him. After adoption he had natural-born sons, the plaintiff and defendant 2. His widow is defendant 3. After the father's death, the two elder sons, namely, defendants 1 and 2, were managing the property, and in the course of their management they had incurred considerable debts. In connexion with such debts suits had been filed against them and defendant 3 and decrees obtained. It is now necessary to mention only two such suits. One is Small Cause Suit No. 1055 of 1919 on the file of the Subordinate Court of Cocanada. The decree in it is Ex. 4. It was obtained on three promissory notes, Exs. 4-C and 4-D of 1917 and Ex. 4-E of 1918. The other papers in connexion with that suit are filed as Exs. 4 series and D series. Another such decree was obtained in S.C.S. No. 1292 of 1919 on the file of the Sub-Court, Cocanada on a promissory note Ex. 3-1 of 1918, which itself was in renewal of another promissory note, Ex. 3-M. The other papers connected with that suit are filed as Ex. 3 series and C series. The first decree was transferred to the District Munsif's Court, Cocanada for execution and certain properties belonging to the three brothers were sold by Ex. 1. Ex. 2 is the delivery, receipt to the purchaser. Out of the sale proceeds both the decrees were apparently paid off. The present suit was filed on 10th September 1921. It purports to be a suit for partition of the family properties against the two elder brothers. The mother was made defendant 3. Defendants 4, 5 and 6 are creditors of the family. Defendant 7 is the tenant of the family lands. Defendant 8 was the purchaser in execution of S.C.S. No. 1055 of 1919 and he was added as a supplemental defendant in 1924. The plaint denies defendant 1's adoption. It also alleges that defendants 1 and 2 were making alienations which were not binding on the plaintiff and prays for partition of the family properties. The District Munsif gave plaintiff a decree. He-declared that the decrees in the two-Small Cause suits already mentioned and the sale in execution were not binding, on the plaintiff. There was an appeal by defendants 5, 6 and 8. The appeal was dismissed by the Subordinate Judge. The present second appeal is filed by defendant 8 only. In this second appeal we are concerned only with the purchase by him in execution of the Small Cause decree. Both the lower Courts find' that the Small Cause decrees were obtained by the fraud of the plaintiffs in. those suits namely, the present defendants 5 and 6. Those suits were filed; against the three brothers. The present plaintiff being a minor, defendant 1, the eldest brother, was originally proposed as his guardia and. litem. He refused to be guardian and alleged that the minor was under the protection of his mother. The plaintiffs then proposed that the mother should be appointed as guardian. The mother appeared in Court and filed counter petitions, Exs. C-4 and D-5, in which she stated that the minor was not under her protection but under the protection of her daughter Rathamma residing at Bhimavaram and that the said Rathamma should be appointed guardian of the minor. The plaintiff thereupon filed another petition in which he merely stated that the mother refused to receive notice saying that she would not act as guardian and that the summons was returned. He made no mention of the fact that according to the mother the minor was under the protection of his sister and that the sister was to be appointed as guardian. This fact was suppressed in his petition. The result was that the Subordinate Judge appointed a clerk as Court guardian. The written statement filed by the Court guardian and the judgments in the suits are not now available, though all the rest of the record has now been exhibited. When I called for them I got a report that they were destroyed. The Subordinate Judge says:The plaintiff obtained the appointment of the Court guardian on false allegations that there was no near relation of the minor who could serve as his guardian.
2. This statement is strictly incorrect. The District Munsif says that the Court guardian
filed vakalats in those suits which were not properly attested and duly stamped. All that the vakil did in those suits was simply to put the plaintiffs in proof of their claim.
3. I do not know how the District Munsif got this information. Perhaps, he looked into the original judgments and written statements which were then not destroyed. As I have already stated, both the District Munsif and the Subordinate Judge held that the decrees were not binding on the plaintiff on the .ground that he was not properly represented. The Subordinate Judge relies on the decision in Ririchand v. Manakkal Raman Somayajipad A.I.R.1923 Mad.553. They also find that defendants 1 and 2 were living a life of reckless extravagance and both of them, or at least defendant 2 was addicted to women and drink.
4. It is now clear that the object of the present suit is really to get rid of the decrees obtained against the family so far as the plaintiff is concerned, that the partition is merely an incidental relief and that in fact the plaintiff seeks to set aside the decrees under the guise of a suit for partition. In this suit the plaintiff appears by his sister as his next friend. Issue 1 is whether defendant 1 is the adopted son of Subbarayudu. This was, of course, found in favour of defendant 1 against the plaintiff. This rather suggests that there was only a show of quarrel between the plaintiff and defendant 1 and that defendants 1 and 2 are really helping the plaintiff. But it is not possible to be very positive about the fact. The question now arises whether the former decrees should be regarded as nullities. When defendant 1 refused to be guardian and when the mother also refused to be guardian in those suits, one may fairly infer that they were not acting bona fide and that their object was to protract the litigation and to throw as many difficulties as they could in the way of the plaintiffs in those suits-a common trick with which we are too familiar in this country. But though we cannot sympathize with these tactics of defendants 1 and 2, this ought not to make us blind to the fact that the plaintiff, a minor, ought not to suffer on account of these tactics. The fact remains that his elder brothers, defendants 1 and 2, entered upon a career of extravagance after their father's death. Between the years 1911 and 1918 they executed several documents-promissory notes or mortgages-for debts- contracted by them. In 1911 they executed Ex. X a mortgage, and Ex. X-b, a promissory note; in 1912 Ex. X-A, a promissory note, and Ex. IX-A a mortgage bond; in 1919 Ex. VII a promissory note in 1914 another promissory note Ex. VIII in 1915, a mortgage Ex, VI and a promissory note, Ex. III-m; in 1916 a promissory note, Ex. IV-e in 1917, a mortgage, Ex. XII, and promissory notes Exs. IV-c, IV-d and XIII and in 1918, a promissory note Ex. III-l in renewal of Ex. Ill-m.
5. It is not likely that the brothers who were guilty of such extravagance would raise proper pleas on behalf of their minor brother or can conduct the case-properly on his behalf. It was impossible that they could plead their own extravagance and immorality. Defendant 1 therefore rightly refused to act as guardian in those suits. But the same cannot be said of the mother's refusal to act as guardian. The mother represented the plaintiff as guardian in the promissory note Ex. III-m, and when it was renewed by Ex. III-l, it was executed by defendants 1 and 2 only. Anyhow if she was to conduct the defence properly, she will have to plead extravagance on the part of her other son and the adopted son. So she tried to shift the burden on to her daughter. I do not think that it would have made much difference whether the mother or the daughter represented the minor in those suits. But one thing is clear. It is only a member of the family who knew the course of extravagance of the two elder brothers that can adduce evidence of it and can effectively establish it in a Court of law. It is impossible for a clerk to adduce evidence of all The result was that documents or debts con-brothers was exhibited The clerk did all that ha could to defend the case. The witnesses for the plaintiffs were cross-examined at great length. This of course did not avail. Under these circumstances, it cannot be said that, when the plaintiffs in those suits omitted to mention the sister who was suggested as guardian by the mother and obtained the appointment of a Court guardian, it was altogether without a motive or that they were acting entirely bona fide. In Maruthamalai v. Palani Goundan the plaintiff suggested the head clerk as guardian, though he knew that there was the maternal grandfather who was a person fit and willing to act as guardian for the minor.
6. The learned Judges, Sundara Ayyar and Sadasiva Ayyar, J.J., found that the statement of the plaintiff in that case could not be regarded as deliberately false and it amounted to no more than a statement that in his view there was no one who was fit and proper to be appointed. To this extent, no doubt the facts of the present case seem to be similar to the facts in that decision, and Mr. Lakshmanna, who appeared for the appellant, contended that that decision ought to be applied here. But it must be remembered that in that case the other defendant was the father, and the father's debts are prima facie binding upon the son and the father's refusal to represent his son cannot be regarded as bona fide. In the later suit there is no evidence of the father's immorality, and seeing that the Hindu law requires, for father's debts not to be binding on a son that a specific connexion must be established between the father's immorality and the debt and that it is not enough to prove a general course of immoral conduct, it is clear that the appointment of the Court guardian in that case could not have prejudiced the minor. In the present case the other defendants were the brothers and the debts were not contracted by the father but by the brothers. It is for the plaintiff's creditors to show that the debts were binding on the minor. The omission to suggest a relation and suggesting a Court guardian has far larger consequences in the one case than in the other, and one suspects that in the present case there is a motive behind it, whereas it is difficult to suspect such a motive in the other case. It is because of the surrounding circumstances and the consequent dissimilarity between the two cases that I hold that the decision in Maruthamalai v. Palani Goundan A.I.R.1914Mad.584 cannot apply to this case. I must agree with the finding of the Courts below that the omission of the plaintiffs in the Small Cause suits in not suggesting the sister as guardian ad litem is not bona fide.
7. The next question is, should the decrees be held ipso facto to be nullities. In Ririchand v. Manakkal Raman Somayajipad Krishnan, J., and myself held that the result of the plaintiff's fraud was as if the minor was not represented at all. It seems to me that the legal effect of a fraudulent appointment of a guardian is not quite accurately stated there. The correct proposition in such cases is stated by Das, J., in Panda Satdeo Narain v. Ramanyan Tewari A.I.R.1923 Pat.242 at p. 345 (of 2 Pat.), This was quoted with approval in Mt. Chambi v. Tarachand A.I.R.1924 All.892. There are two well-known categories in relation to this matter (1). Where no guardian was appointed for a minor, or where a disqualified person was_ appointed as guardian, the result is the decree must be regarded as a nullity; (2) where a guardian, and that a qualified person, was appointed, but where there was some irregularity in the proceedings, or where, on account of the fraud of the opposite party, appointment) of one per-son was obtained instead of another who would have conducted the case better on behalf of the minor of the decree is not a nullity. One has to see whether the irregularity has prejudiced the minor. It may be that in spite of the irregularity or fraud the result was the same as if he had been most efficiently represented. If so, the Court would not set aside the decree. But if the Court finds that the irregularity or fraud has prejudiced the minor, the Court will give appropriate relief. The decision in Rashidunnissa v. Muhammad Ismail Khan 31 All.572, is a case where the minor was not represented at all and the proceedings were therefore regarded as nullity. In Bhagwan Dayal v. Paramsukh Das 37 All.179, the defect was only an irregularity and the Court proceeded to examine how far the minor was prejudiced by it.
8. It was only when the learned Judges-were satisfied that the minor was prejudiced that the relief Sought by him was granted. Bhagwan Dayal v. Paramsukh Das 39 All.8, is a continuation of the decision in Bhagwan Dayal v. Paramsukh Das and it was held that the original proceedings were rightly revived. In the case in Ririchand v. Manakkal Hainan Somayajipad undoubtedly the minor was prejudiced because a lease was held to be binding on him though the minor could not cultivate the lands by himself, and a decree for sale followed. These were held properly to be not binding on the minor, though, as I have already remarked, it would not be quite accurate to say that they should be considered as nullities.
9. In Ponnayya v. Jangula Kanna Kotayya  53 I.C.184, all that was held was, where the appointment of the father who did not consent resulted in an ex parte decree against the minor an application under Order 9, Rule 13, to set aside the ex parte decree did not lie as the decree may be regarded as a nullity so far as the minor was concerned. In Venkata Lakshmikanta Raju Garu v. Peda Venkata Jagannadha Raju Garu A.I.R.1924 Mad.281, it was held that, where a Court guardian was appointed after the father's refusal, the decree is not necessarily bad, unless some collusion between the Court clerk and the plaintiff is shown. I would only add 'or unless prejudice is shown.' In Vytheswara Ayyar v. Kumarappa Chettiar 115 I.C.247, there was a false allegation of the plaintiff that the guardian refused to act, whereas really no notice was sent to him. Afterwards in the same suit the error was sought to be rectified; and Phillips, J., held that the later proceedings did not bind the minor and. directed the District Munsif to restore the suit to file and proceed according to law. The decree being set aside in the proceedings connected with the suit itself, the question did not there arise whether in a later litigation it should be regarded as a nullity.
10. Jambu Ammal v. Natarajan Pillai A.I.R.1922 Mad.485 is a similar decision by Devadoss, J., the proceedings being set aside in the suit itself. In the present appeal, I therefore hold that the plaintiff obtained appointment of the guardian by the suppression of an essential fact to suit his own purposes, but that the decree is not a nullity. We have to see how far the minor is prejudiced by this fraudulent act. The Courts below did not approach this question from this point of view. Having regard to the findings of the lower Courts as to the extravagance and immorality of defendants 1 and 2, I must find that the decree in S.C.S. No. 1292 of 1919 is not binding on the minor. But, as to the decree in S. C. S. No. 1055 of 1919, I have already observed it is based on three promissory notes for Rs. 250. Ex. 4-c was executed by defendant 2 alone; Ex 4-d was executed by defendant 1 alone; and Ex. 4-e by both.
11. So far as the first two are concerned, I think that they are not binding on the minor. Ex. 4-e purports to be executed for the expenses of a litigation. The judgment in this litigation is filed as Ex. 5. In this litigation the two brothers, acting for themselves and on behalf of their brother, obtained a declaratory decree establishing their right to certain property to which they were entitled as reversioners. The date of the appeal judgment is 30th September 1916 and Ex. 4-e is dated 11th October 1916. It is reasonable to hold that the connexion between Ex. 4-e and the litigation is made out. The amount of Ex. 4-e is Rs. 150. It purports to be partly for taxes and partly for the expenses of the litigation. How much was incurred under each head was not stated. Dividing it into two equal halves, we may presume that Rs. 75 was incurred for the purpose of the litigation. One-third share of this is Rs. 25. The amount of the decree in S. C. S. No. 1055 of 1919 is Rs. 332-6-4. One-tenth of this is Rs. 33-4-0. To this extent the decree is binding on the minor. He cannot obtain the benefit of the decree in Ex. 5 without paying what was spent for his benefit.
12. It seems to me that the sales in execution of those decrees are bad on the ground of lis pendens also. I would therefore uphold the decrees of the Courts below, merely adding a direction that plaintiff is liable to pay defendant 8 Rs. 33-4-0 with further interest up to the date from which the plaintiff gets mense profits, i. e., the date of the plaint before recovering one-third share of the property. With this modification I dismiss this second appeal.
13. I direct the appellant to pay three-fourths of the respondent's costs.