1. The petitioner was the defendant in a suit on a promissory note and he put forward the defence that on the date when the suit promissory note was executed he was a minor by reason of the fact that a guardian of his property was appointed in August, 1930, so that by the force of Section 3 of the Indian Majority Act his minority was extended beyond the date on which the suit promissory note was executed. The courts below permitted the plaintiff to meet this contention by showing that the appointment of the guardian was obtained by collusion between the minor's relatives and it has been held that this order is consequently void as against the plaintiff, so that the plaintiff can treat the defendant as still a major in spite of the courts' order which has the effect of making him a minor. I may say at once that the basis for the finding of the courts below that this guardianship order was obtained by a fraud on the court seems to me of doubtful legality. The facts found are that the minor's property was being adequately managed by his mother, that the minor was not shown to have squandered that property, that the person appointed as his guardian was not a suitable person to control his property because he lived in another village, that the property guardian did not actually function as such and subsequently became an insolvent, that notwithstanding the appointment of a guardian the minor borrowed money after his guardian was appointed and that there are indications that the motive which led the relatives to agree to the appointment of a guardian was to get rid of two debts contracted by the mother on behalf of the minor. Some of these findings of fact are not beyond challenge, but, for the purpose of these proceedings, they may be taken as conclusive. But on these findings I doubt very much whether the court would be justified in coming to the conclusion that this guardianship order was obtained by a fraud on the court. There is no proof of fraud on any particular creditor. It does not appear that the persons who had advanced money to the mother of the minor were actually defrauded. It may well be that the relatives agreed that it was desirable to extend the minority of the minor in order to prevent him from wasting his property by borrowing, but I am unable to see that this motive is sinister as it appeared to the courts below, and the fact that the minor subsequently did borrow money is just as much an indication of the necessity for the appointment of a guardian as it is an indication that the relatives wanted to facilitate fraudulent borrowing. The subsequent insolvency of the property guardian and his failure to perform his duties seem to me entirely irrelevant considerations for the purpose of deciding whether the guardianship order was or was not obtained by fraud. Taking all the findings of fact together, it seems to me that there were no proper materials upon which the court could legally conclude that the order appointing the guardian was obtained by a fraud on the court or by collusion with the object of defrauding other people. I may say that the admission into evidence of two previous judgments in which learned Judges express opinions as to the nature of these guardianship proceedings seems to me to have been improper. The plaintiff is not a party to these previous proceedings and it is difficult to see how the opinion of these 'Judges is relevant in the present proceedings.
2. In revision, however, I am not mainly concerned with the legality of the finding that this judgment was obtained by collusion. The main question is whether it is open to the plaintiff in order to enforce a debt contracted by a minor to show that the judgment which has the effect of making him a minor was obtained by collusion. In my opinion it is not. Both the courts below have treated the case as one coming under Section 44 of the Evidence Act, which is clearly inapplicable. Section 44 applies only to judgments etc., which are relevant under Section 40, 41 and 42. This order appointing a guardian certainly does not come under Section 40 or 42. Though it may well be said that a judgment appointing a guardian and extending the minority of the ward is somewhat analogus to those judgments in rem enumerated in Section 41, it is quite clearly not a judgment in the exercise of the probate, matrimonial, admiralty or insolvency jurisdiction of the court and it therefore does not fall under Section 41. The judgment in question is admissible under Section 43. Section 44 does not apply to judgments admissible under Section 43. Vide Bisvanath Prosad Mahata v. Bhagwandin Pandey (1911) 14 C.L.J. 648. In the absence of an express power to attack this judgment under Section 44 of the Evidence Act, we have to consider whether it is open to attack on grounds of collusion under the general law. It seems to me that Section 48 of the Guardian and Wards Act bars any contest regarding the validity of the judgment appointing the guardian except by the procedure of appeal or revision.
3. Counsel for the respondent has quoted the case of Subramaniam Chetty v. Doraisinga Tevan (1912) 24 M.L.J. 49, in support of the argument that a guardianship order can be attacked in collateral proceedings merely by showing, when the order is tendered in evidence, that it was obtained by collusion. As I read the case referred to, all that was decided there was that, when in collateral proceedings it was sought to attack a finding of fact upon which an order for the discharge of a guardian was passed, though that order of discharge might not be amenable to attack with reference to Section 48 of the Guardian and Wards Act, the ward who is not a party to the fraud may allege that the court gave a Wrong finding of fact by reason of the fraud of the parties to the guardianship proceedings. The case was one in which the guardian had procured his discharge by fraudulently misrepresenting to the court that the minor had come of age; and in the collateral proceeding it was held that the minor could show that this finding of fact was procured by fraud and that in fact he was still a minor. It seems to me that that decision does not provide authority for the view that in collateral proceedings it is open to a party who is seeking to escape the effect of an order against which no suit or other contest would lie under Section 48 to evade the effect of that order by showing that it was one which ought not to have been pronounced and which was in fact induced by fraud or collusion. Rightly or wrongly the District Court held that it was desirable to appoint a property guardian for this minor and made such an appointment. The effect of that appointment is to bring into operation Section 3 of the Indian Majority Act and to prolong the minority of the ward. It is not in my opinion open to the plaintiff to get round the provisions of Section 48 of the Guardian and Wards Act by showing that the appointment of the guardian was procured by collusion and that the minority of the ward ought not to have been extended. His status has been established by an order which cannot be contested except by appeal or revision, and that status governs his legal relationships.
4. It has been suggested that the plaintiff can be allowed to support his claim by showing that money was in fact borrowed for the minor's necessaries so as to call in aid Section 68 of the Contract Act and I have been asked to frame an issue on this question and remit the suit for trial of that issue. It is, however, contended by the petitioner with some force that this involves the trial of a fresh suit on a different cause of action raising questions of limitation etc., which have not been gone into and that if the plaintiff, when the defendant put forward his minority desired to have a second line of resistance on the basis of Section 68 of the Contract Act, he should have got an issue framed in the trial court and not have waited till revision. It seems to me that this objection must succeed and that it is now too late to change the whole character of this suit. In the result, therefore, the revision petition is allowed with costs throughout and the plaintiff's suit is dismissed.