1. This appeal is the last stage in a prolonged litigation. In the year 1913, the respondent, a widow whose husband had predeceased his father sued her father-in-law for maintenance. At the time of the suit, she was a minor and was represented in it by her father as her guardian. During the pendency of the suit, her father-in-law died and his surviving son now the appellant who had succeeded to his property, was brought on to the record in his place. In January 1914, her father, on her behalf entered into a compromise with the appellant. His vakil certified that the compromise was beneficial to the minor. The Subordinate Judge sanctioned the compromise and a decree was passed on it. The respondent reached her majority on 15th August 1915 and on 1st September filed a suit to set aside the compromise decree. Her father could not, of course, impeach he compromise himself but there is every reason to believe that it was he that set her up to impeach it. Her plaint makes it perfectly clear that she was attacking the decree on the only grounds on which she could attack it- that is, on the grounds of fraud and collusion. In para. 6 she averred that her father consented to the compromise:
at the instigation of the defendant and some others who had come to Court and were interested in the defendant.
2. In para. 8 she alleged that she learned and believed that her father:
was actuated by the desire of receiving a lump sum and appropriating the same to himself taking advantage of the influence ha has over this plaintiff as her father.
3. In para. 10 she said:
Thus the plaintiff's next friend and the defendant colluded together and defrauded her.
4. Para. 11 went on to accuse the father of deceiving the vakil and the Court:
This plaintiff further learns and believes the same to be true that after he (the father) agreed to the compromise he made, the Court-and his vakil also believed that the terms of the compromise were favourable to this plaintiff and upon such misrepresentation secured the certificate of the vakil and the permission of the Court for the said compromise.
5. The charges against her father were quite definite. Knowing all the facts he,, in collusion with the appellant, deliberately sacrificed her interests to his own selfish and dishonest ends and induced her vakil and the Court by misrepresentation to believe that the compromise was beneficial to her. When the suit came on for trial the plea of fraud and collusion was given up. It had to be for the reason that the respondent's father was helping her very actively in the suit. Her pleader declined to put him or anyone else connected with the compromise into the box and argued that without proving fraud and collusion, he was entitled to get the decree set aside on another ground. The Subordinate Judge. finding that fraud and collusion had not been made out, dismissed the suit. An. appeal was preferred to the District Judge who held very properly, that it was essential to prove fraud and collusion before the decree could be set aside; A second appeal was presented to this Court and decided by Wallace, J. He remanded the suit for re-hearing on the issue whether the compromise was grossly prejudicial to the respondent's interest. He held that:
the decree could be set aside on proof of gross prejudice to the minor's interests, consequent on the action, or inaction of her next friend.
6. The suit was accordingly reheard by a different Subordinate Judge, who set aside the decree on the ground that the compromise was grossely prejudicial to the minor's interest in that the amount it allotted to her was extremely disproportionate to the means of her husband's family. He found that:
no attempt was made at the time to calculate how much per year the plaintiff could fairly be allowed for her maintenance and for how many years it could fairly be expected, that she would live and to fix the lump sum payable to her on that basis. It seems to me that, in order to arrive at a fair result, some such data would have had to be proceeded upon and I can feel no doubt that if the parties were acting with a desire to arrive at a satisfactory settlement which would best serve the minor's interests they would have adopted such data. That no such procedure was followed appears to afford an almost certain indication that the compromise was patched up, not with the idea of securing the beat terms for the minor, but with an idea of getting rid of the plaintiff's claim in some way or other.
7. All this followed on a finding that the income of the family property was not loss than Rs. 2,500. The charge against the father and guardian we take it, was this that ha neglected to ascertain the income of the property and to insist on the payment of a lump sum calculated on the basis of a fair allowance for annual maintenance multiplied by the minor's expectation of life. This was to wander very far from the charge of deliberate fraud and collusion, on which and on which alone the suit was originally brought. The Subordinate Judge did, however, hark back to the original charge of fraud. Para. 11 of his judgment contains the following passage:
Possibly as alleged in the plaint, the pleader himself was misled into considering that the compromise was beneficial to the minor's interest and induced to give the certificate; that appears to be the only inference which arises from the circumstance that the terms are so manifestiy prejudicial to the minor's interest as has been shown.
8. In other words, the guardian was both negligent and fraudulent It is sufficient to point out, as regards finding on issue 2, that it is based on surmises and no evidence. The guardian was not examined nor was the pleader. The respondent had given up this part of her case and made no attempt to prove it and the finding should have been against her.
9. An appeal was preferred to the District Judge who, agreeing in the view taken by the Subordinate Judge of the nature of the guardian's negligence, dismissed it. A second appeal 'to this Court was dismissed by Wallace, J., who held that the gross inadequacy of the amount allotted to the respondent was sufficient proof of the guardian's negligence.
10. We are now asked to set aside the decree on the ground that Wallace, J's, decision is opposed to law. The law on the subject is quite clear and is stated in Kachayi Kuttiali Haji v. Udumpumthala Kunhi Putha  29 Mad. 58. It is that:
a compromise sanctioned by Court on the part of an infant cannot be set aside on any ground which would be insufficient to set aside a compromise between persons suit juris.
11. And the only grounds on which a compromise of the latter kind can be set aside are those of fraud and collusion. The respondent's legal advisers were evidently aware of this and deliberately framed her plaint on this basis. When the suit came on for trial, they recognized that they could not prove any fraud or collusion, as it was obvious that, if the guardian was colluding with any one, it was with the minor. They therefore declined to put him or any one else connected with the compromise into the box and the suit was quite rightly dismissed. The cases relied on by the respondent are not to the point. We are clearly of opinion that the respondent having given up the only charges on which in law she was entitled to succeed should not have been allowed to succeed on any other. There is another ground on which she should, we think, have been non-suited and that is that she could not be allowed to get a decree on a case that was not only not set up by her in her plaint, but was further quite inconsistent with it. The charge made against her guardian in the plaint were that he colluded with the defendant, that he was quite aware of the inadequacy of the amount allotted to her, but deliberately sacrificed her interest to his own dishonest ends and that ho misled her vakil and the Court into believing that the compromise was beneficial to her. All these charges were abandoned and she was allowed to plead in second appeal that she was entitled, on proof of the inadequacy of the amount allotted to her, to get a decree on the ground of negligence, the inadequacy of the amount being sufficient; evidence of negligence on the part of her guardian. And what was the negligence found after the remand? It was that the guardian had omitted: (1) to settle, on the basis of the family income, what would have been a fair annual allowance for the minor's maintenance; (2) to multiply that allowance by her probable expectation of life. Deliberate fraud and collusion became a negligent omission to make a mathematical calculation. It was implied in the original plaint that the guardian knew quite well that his daughter was being defrauded of her rightful due and acquiesced in his own interest. How could that be transformed into a plea that he carelessly and negligently failed to protect her interest? The position really comes to this. If the guardian knew that the consideration was grossly inadequate-and that was the basis of the case set up in the plaint, the only possible inference was that he accepted it collusively and corruptly. The respondent could not or would not put him into the box to admit this and was driven to fall back on a stupid plea of negligence, which, on the allegations in the plaint. must have been deliberate and therefore not negligent at all. It is impossible to read the judgment without feeling that the Subordinate Judge was accusing the guardian of fraud rather than of negligence. How else can one interpret his remark that the compromise was 'patched up' not with the idea of securing the best terms for the minor, but with an idea of getting rid of the plaintiff's claim in some way or other? That is a finding of something more than mere negligence. It is a finding that the minor's interest was deliberately set aside. Take again para. 12 of his judgment, which infers that the pleader was misled. It appears to be a charge against some one who can only be the guardian- of having been guilty of active misrepresentation, a charge, not of negligence, but of fraud. And yet, the charges of fraud had been explicitly abandoned.
12. The appeal must be allowed The suit is dismissed with costs throughout. It is argued that we cannot interfere as the order of remand was not appealed against. We do not consider that Article 15 Letters Patent, is controlled by Section 105, Civil P.C. It was open to the appellant, though he did not appeal against the order of remand to attack it in his appeal against the final decree.