1. This is an appeal against the decree of the Subordinate Judge of Calicut in Original Suit 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 Kommancheri Tarwad on the death of his mother and sister in March 1907; and he was then solely entitled to the Tarwad properties. He was at the time a minor of eight years of age and his father, the second defendant, who had previously managed the affairs of his Tarwad as his mother's agent, continued in the management of his affairs as his de facto guardian. Being a member of a Marumakkatayam Tarwad, his father was not his legal guardian. At that time there was a mortgage-debt on the Tarwad lands in 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 first defendant and executed a usufructuary mortgage to him, copy Exhibit A. Two days afterwards he also executed a Verumpattom chit or lease for himself and as plaintiff's guardian and took back the properties on lease; see copy Exhibit 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 second defendant and he executed a pro-note, copy Exhibit I, for Rs. 3,092-12-11 to the first defendant, again acting for himself and as guardian of his son. The first defendant brought Original Suit No. 37 of 1915 en 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 first 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 Exhibit. A, may be declared invalid to the extent of Rs. 2200 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 Exhibit, G, is not being 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. Exhibit IX, was obtained by fraud that he was not represented in it by a proper guardian and that 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 Guardians 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. No. 2, and the District Judge had passed an order that the plaintiff's father, the second 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 executed and no formal order of appointment was drawn up. Nevertheless, in several subsequent Court proceedings the second defendant was treated as a properly appointed, guardian for the 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 though his learned Vakil agreed to be bound by all the proceedings' that have taken place in the lower Court. Order XXXII, Rule 2 of the Civil Procedure Code is applicable only when, on the face of the plaint, the plaintiff appeals to be a minor; see Beni Ram v. Ram Lal 13 C. 189 : 6 Ind. Dec. 625. 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. Bent Ram v. Ram Lal 13 C. 189 : 6 Ind. Dec. 625 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 XXXII, Rule 12. A somewhat similar case was considered Sankaran Nambi v. Devaki Antherjenam 73 Ind. Cas. 491 : (1912) M.W.N. 428 : 16 L.W. 26 : A.I.R(1922) . (M.) 259 : 43 M.L.J. 572 and it was ruled there that when a next friend has beer 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 first 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 third 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, Exhibit 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 first defendant by means of a false affidavit and that the second defendant being a guardian appointed under the Guardians 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 a clearness to consider these points separately.
6 Taking the second point first, it will be observed that the second defendant was proposed by the first defendant as plaintiff's guardian ad litem in the first instance. Four notices were taken out to him the last of them, Exhibit XIII (e) 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 Order V, Rules 16 and 17. The way in which he behaved when the notice was tendered 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 unsustainable guardian in any event as his interests would cash with the minor's interests. It was, however, argued that as he was a guardian appointed by a competent authority under the Guardians and Wards Act, the Court acted improperly in superseding him and appointing a Court guardian without recording proper reasons under Order XXXII, Rule 4, Clause (2). Now in the first place as I have already said it is not very clear that he was so appointed, plain tiff's own case being that he was not so appointed. But 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 it 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 Sridhar Rao v. Ram Lal 1 Ind. Cas. 555 : 31 A. 7 : A.W.N. (1908) 251 : 5 A.L.J. 633. The case in Bhimaji v. Rajabhai Hussain Sahib 59 Ind. Cas. 842 : 43 M. 808 : 13 L.W. 114 : 39 M.L.J. 239 : 88 M.L.T. 295 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 first defendant's behalf by his brother, D.W. No. 5 Exhibit X (a), contains a statement that besides the second defendant plaintiff had no next of kin. This statement is false as there was at least one person known to first defendant and his brother, namely, plaintiff's maternal uncle Ravunni Nair, P.W. No. 2, who though he belonged to a different Tarwad as plaintiff's mother had been adopted from his Tarwad to plaintiff's Komaneheri Tarwad, was certainly plaintiff's next of kin just like his father, yet this information was suppressed. The only explanation D.W. No. 5 gave for his action in cross-examination is that Ravunni Nair was 'not proposed as guardian because the Court held that the second defendant was the proper person to act as guardian;' this apparently refers to Exhibit E. The explanation, however, is worthless and we must hold that the first defendant was guilty of fraud in law in making a false statement and thereby getting a Court Officer appointed as 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 Privy Council in Bhagwan Dayal v. Param Sukh Dass 27 Ind. Cas. 623 : 37 A. 179 : 13 A.L.J. 179 for here as there the case must be treated as having been proceeded with without elegally 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 it that the appointment of the Court guardian was 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 declaration 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 binding 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 Chundar Singh v. Radhakishore Ghose 19 C. 507 : 19 I.A. 90 : 6 Sar. P.C.J. 185 : 9 Ind. Dec. 782 ; Mir (sic) v. Fakhruddin Mahomed Chowdhuri 13 Ind. Cas. 331 : 39 C. 232 : 21 M.L.J. 1156 : 16 C.W.N. 74 : (1912) M.W.N. 22 : 9 A.L.J. 33 : 15 C.L.J. 69 : 14 Bom. L.R. 5 : 11 M.L.T. 8 39 I.A. 1 ; Waghela v. Rajsanji v. Shekh Masludin 11 B. 551 : 14 I.A. 89 : 11 Ind. Jur. 315 : 5 Sar. P.C.J. 16 : 6 Ind. Dec.364 and Chodavarapu Narayana Row v. Chennuru Venkatsuhba Rom 55 Ind. Cas. 377 : 38 M.L.J. 77 : (1920) M.W.N. 129 : 27 M.L.T. 264. It was, however, argued that the lease and the mortgage were one and the same transaction and that, as the creditor the first 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 second 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 Bhattachiripad's mortgage paid off but also to the extent of the decree-debt-in Original Suit No. 364 of 1905 and for the amount due to Unnith Amma, i.e., in all for about Rs. 11,000, the objection being confined to about Rs. 1,000 not properly accounted for. There is however, is 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 first defendant or such portion of it as is valid. The Subordinate Judge holds that plaintiff is entitled to redeem without a demand for payment by the first defendant and cites Navunni v. Ramasawmy Patter 52 Ind. Cas. 738 : 10 L.W. 169 in support of his view that Section 42 will not apply in such circumstance? But this view is based on a misreading of the covenant in Exhibit 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. Ramasawmy Patter 52 Ind. Cas. 738 : 10 L.W. 169 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 memorandum of appeal. This is rightly not opposed by the first defendant's Vakil and may, I think, be granted. Plaintiff is allowed to amend his plaint and pay the necessary Court-fee--for it and for the appeal in this Court in two weeks from this date. The appeal is adjourned for the purpose.