Venkatasubba Rao, J.
1. The decree of the lower Court directs that the suit lands shall be partitioned into four equal shares and one of them shall be allotted and delivered to the plaintiff. The decree also gives the latter mesne profits. The 1st, 2nd and 11th defendants have filed this appeal.
2. The facts relevant for determining the points that arise in the appeal lie within a very narrow compass. I find it, however, necessary and useful, on account of the judgment of the lower Court and the arguments advanced, to refer to and state the facts of the case fully.
3. One Govindappa had two sons, Defendants 12 and 13. The plaintiff is the son of the 12th defendant. These formed members of a joint Hindu family and owned valuable land of the extent of about 340 acres. They executed a simple mortgage (Ex. B of 19-2-1898) in favour of Defendants 1 and 2 and one Ramanathan Chetty, the deceased father of the 4th defendant, for securing repayment of Rs. 60,000. Previous to this mortgage a lease had been executed in favour of the 8th defendant for a period of five years (Ex. A. 28-4-1897). On 30-7-1899 Annamalai Chetti, the agent of Ramanathan Chetty aforesaid, obtained a transfer of the lessors' interest in the lease (Ex. C.). On 4-5-1900 Ramanathan Chetti and the 1st defendant obtained an assignment of the lessee's (8th defendant) interest (Ex. F.). The effect of these two assignments was to enable two of the mortgagees, the 1st defendant and Ramanathan Chetti, to get possession of the properties mortgaged to them by way of simple mortgage.I may mention in this connexion that the 2nd defendant is a High Court Vakil and that the 1st defendant is his clerk. The next step taken by the mortgagees was to file a suit on 24-9-1900, in the Negapatam Sub-Court (O. S. No. 38 of 1900) for the recovery of the amount due under Ex. B. It is sufficient to say that on 19th June 1901, a decree was passed in this suit,
4. Alongside of these events there was another set of transactions that I must now refer to. On 24-8-1898, Govindappa and one of his sons, the 13th defendant, executed in favour of Ramanathan Chetti and two others a promissory note for Rs. 200. A suit was filed (S. C. No. 2632 of 1899 in the Kumbakonam Sub-Court, and a decree was obtained by the payees under the note against Govindappa, his sons, Defendants 12 and 13 and his grandson, the present plaintiff. The decree is Ex. D, dated 11-12-1899. It is worthy of note that the present 2nd defendant acted as the vakil for the plaintiffs in that suit. The present plaintiff being then a minor, an officer of the Court was appointed as his guardian ad litem in the suit (Ex. D-1). The decree-holders got the decree transferred for execution on 25-1-1900 to the District Munsif's Court, Tiruvalur, then attached the judgment debtor' s equity of redemption in 33 items (suit items) out of 34 items mortgaged under Ex. B, brought the said equity of redemption to sale and in the Courtauction it was purchased by the 9th defendant, another clerk of the vakil, the 2nd defendant, for Rs. 287-12-0. The date of this sale is 9th July 1901. It is admitted that the 9th defendant obtained this sale benami for Defendants 1 and 2.
5. It is these transactions that took place between 1899-1901, that are now impeached by the plaintiff. The suit though filed in 1916, has been held to be in time as the plaintiff had only recently attained majority. The lower Court set aside the sale of the 9th July 1901, on the ground inter alia that it is vitiated by fraud. I gather that the learned Judge means that there was fraud on the part of the 1st and 2nd defendants and Ramanathan Chetti. From my narrative, two facts emerge. Although the mortgage was a simple mortgage, two of the mortgagees contrived to get possession by taking an assignment of the lease from the 8th defendant. Next, without executing the mortgage decree, by an ingenious device the mortgagees not only got the equity of redemption sold but two of them became the purchasers of that equity. To complete my sketch, I must mention that on 29-3-1902, Ramanathan chetti assigned his interest in the mortgage decree to Defendants 1 and 2, the vakil and his clerk (Ex. K.). The result, of these various complicated transactions is, that by 1902, the 2nd defendant and his clerk managed to get practically an absolute title to the suit properties and also obtained physical possession. It would have been a straightforward course to execute the mortgage decree, but this was not done. The 2nd defendant had recourse to every indirect method to get title to and obtain possession of the property. He was the vakil that appeared for the plaintiffs in the suit on the promissory note.
6. The benami purchase by the 9th defendant is again very suspicious. It cannot be denied that the conduct of the 2nd defendant has a very ugly look. There are other suspicious circumstances to which the plaintiff has referred us. There were several execution applications to execute the Small Cause decree and it was in pursuance of an order made on the last of them that the property was sold. In one of the prior applications, the decree-holders applied for leave to bid stating that they were prepared to purchase the property for Rs. 100. The District Munsif made an order to the effect that as the property was at least worth Rs. 24,000 leave to bid on the terms proposed could not be granted. This happened on the 9th April 1900. Subsequently the property was put to auction, and the highest bid was that of a thousand rupees. This was more than sufficient to pay off the decree amount, but the decree-holders requested the Court to stop the sale and it was accordingly stopped. Having contrived to get the sale stopped on that occasion, they got the property sold again and it was at that sale that the 9th defendant purchased it benami for Defendants 1 and 2 for Rs. 280 and odd. The last execution application (the one which resulted in the sale) is dated (18-3-1901) and in that the decree-holders made a false statement that on the previous occasion there was no bid made for the property at the sale. They thus concealed from the Court the fact that there had been a bid of a thousand rupees for the property. The plaintiff suggests that the 2nd defendant planned and carried out this fraud sometime keeping himself in the background. When in another connexion this matter came up before the High Court, Spencer J. referred to the act of the purchasers as a 'trick played on the Court' and was of the opinion that the mortgagors were 'cheated.' In the judgment of the lower Court the learned Judge has characterized the conduct of the 2nd defendant in strong terms and recorded a finding that he was a party to a fraud. I agree that it is impossible not to suspect fraud on the part of the 1st and 2nd defendants, but the difficulty is that there was no issue regarding fraud and the defendants were not asked to meet any such issue. 'No application was made for amending the issues or raising a new issue. When the learned Judge was dealing with a -mass of material which showed that the conduct of the 2nd defendant was not above board, he overlooked the fact that he was not called on to try a case of fraud and unwittingly gave a finding that the sale was vitiated by the fraud of the 1st and 2nd defendants. This finding, therefore, cannot be supported.
7. The facts that have a bearing on the real point to be decided in this appeal, I shall now proceed to state. When the decree-holders applied (as I have said on 18-3-1901) for sale of the property, the 'Executing Court made the following order: 'For sale of attached properties. Notice to 15th April.' Notice was taken out, but none of the defendants was served. The Court guardian of the present plaintiff ( the 3rd defendant in that suit) declined to accept service. The grounds of his refusal wore that he was an officer of the Kumbakonam Court, that he was appointed guardian only for the suit, and as execution was proceeding in a different Court another guardian should be appointed in his place for the minor. The return of the process server and the endorsement of the Nazir are dated 15th April 1901. When the matter was taken up on that date by the Court, it passed the following order. 'Not served. Fresh notice, to 30th instant.' We must take it that the words 'not served' were intended to refer to all the defendants and that fresh notice was directed to be taken out as against all of them including the minor 3rd defendant (the present plaintiff). It is difficult to say how the Court disposed of the objection of the Court guardian. From what appears on the record, it passed no orders in that respect with the result that the same person continued to remain on the record as the minor's guardian. When, in the face of the process server's endorsement the Court directed fresh notice to the minor defendant, it means and implies that the Court did not feel called upon to remove the guardian on the record and appoint another in his stead. This view receives support from the fact that in subsequent proceedings the minor is described as being represented by the same Court guardian: see Exs. II, IIa and 4.
8. For the plaintiff it is contended that subsequent to 15th April 1901, the proceedings were bad, because he was not represented on record at all. It is urged that when the guardian ad litem declines to act, he automatically ceases to hold the office of guardian and from that moment the minor must be treated as unrepresented. In my opinion, this is the only contention that can be urged in the appeal having regard to the pleadings and the issues. Before dealing with this point, however, I must refer to another contention that has been raised. On the 30th April the Court made the following order. 'Served. Absent. Proclaim and sell. Sale 8th July.' It is urged that the minor's guardian was not served at all and that the note of the Judge 'served' is a mistake. Parts of the record were produced at the trial and they show that the adult defendants were served. There was no paper forthcoming to show that the minor was served. We are asked to infer from these facts that the Court's attention was not directed to the existence of the minor and that when it made a note 'served' it had in mind only the major defendants. It seems to me that this is not a question raised in the suit and that we cannot properly go into it. The plaintiff's allegations in the plaint in this respect are:
(1) The Court guardian declined to act in the execution proceedings.
(2) That thereupon the Tiruvalur Munsif's Court ordered the appointment of a fresh guardian.
(3) The decree-holders, however, wilfully omitted to get a fresh guardian appointed;
(4) Irrespective of any order of the Court it was the duty of the decreeholders to have the minor properly represented on the record;
(5) Omission in that respect renders the sale null and void.
(See paragraph 3 (p) of the plaint).
9. The complaint thus is that no steps were taken to get a fresh guardian appointed. It is not suggested that notice was not properly served on the guardian on the record. The defect pleaded being want of fresh appointment, the allegation implies that the proceedings were not defective in regard to the service of the guardian on the record. The issue framed accordingly reads thus:
Whether there has been no representation, at least no proper representation of the minor in the execution proceedings in S. C. No. 2632 of 1899 in the Tiruvalur District Munsif's Count
10. This issue relates to representation only and raised no point regarding service of the notice. There is a presumption in favour of the regularity of the proceedings of a Court but the plaintiff asks us to say that the Court made a wrong note that the parties were served when one of them was not and we are asked to say this, after the lapse of about 20 years from the date of the order. It is unsafe to surmise or speculate in a matter like this. When the defendants had no notice that they were to meet such a case, the Court would not be justified in recording a finding in the absence of an averment and in the absence of an issue. In this case there can be no possible excuse for the plaintiff asking us to read more into his plaint than is actually alleged in it; for, when he applied to sue in forma pauperis, the High Court by its judgment (dated-14-10-19) directed him to amend his plaint in such a manner as to make his allegation clear on the basis of which he contended that the sale did not affect his interest. The plaint, as I have shown, does not contain an allegation that the sale is bad on account of non-service of notice on his guardian on the record.
11. Having thus disposed of matters which in my opinion, are irrelevant in this appeal, I shall now deal with the question of law raised--namely, whether when a guardian ad litem refuses to act, he by force of his own refusal ceases to be the guardian and the minor thereafter is unrepresented in the proceedings.
12. The provisions of law applicable are Sections 458 and 459 of the Civil P. C., 1882 They provide that if a guardian of a. minor defendant fails to do his duty or if other sufficient cause is made to appear the Court may remove him and if he is removed, the Court shall appoint a new guardian in his place. These sections do do not give any countenance to the idea. that a guardian duly appointed, by his declining to act as such, automatically ceases to be a guardian. The provision in the present Code is even more explicit. Order 32, Rule 11 reads thus:
Where the guardian for the suit desires to retire or does not do his duty, or where other sufficient ground is made to appear, the Court may permit such guardian to retire or may remove him, and may make such order as to costs as it thinks fit.
13. The only difference between the two provisions is this, that whereas the old Code does not expressly refer to the case of a guardian desiring to retire, the present Code contains an express provision in that respect. It says that if he desires to retire, the Court may permit him to do so. If the plaintiff's argument, is correct, it is unnecessary for the Court to remove a guardian, whereas, Section 459 contemplates such removal. If a mere statement of a guardian that he declines to act results in an automatic removal, what is the effect of the section which says that the Court may remove him?' Is the plaintiff in a case to judge for himself whether a guardian properly appointed has ceased to be such? Taking Section 458 it may with equal reason be contended, that when a guardian fails to do his duty, in that case also, by force of his own default he ceases to be a guardian. Is a plaintiff in an action to decide in each case at his peril, whether on the facts and in law, a guardian does or does not continue to act? This falls within the functions of the Court and is not left to be decided by one of the parties to the action.
14. In C. M. A. 188 and 224 of 1920 Spencer and Ramesam, JJ., took the same view. They observe:
The 3rd defendant's guardian applied under Order 32, Rule 11 of the Civil P. C., to retire on the ground that the minor had attained majority, but his discharge was not complete until the permission of the Court, which is part of the procedure prescribed by Rule 11 was given. The sale was closed on the 4th of August, 1919 and on the same day the Court passed orders on the guardian's application refusing to permit him to retire. The result was that he continued to represent the 3rd defendant and the execution proceedings were not affected by any irregularity in the representation of the parties,
15. In Kunwar Narendra v. Bohra Chatrapal : AIR1926All437 a Bench of the Allahabad High Court was of the same opinion. The learned Judge in that case held that a guardian ad litem does not cease to be a guardian merely because he expresses a desire to retire from his office and that it is open to the Court to permit, or to refuse to permit him to retire.
16. In the present case, the Court guardian stated thus:
As I was appointed guardian of the minor during the trial of the suit as an officer of this Court and as the decree has been sent to that Court for execution where proceedings are now being taken, I beg that another guardian may be appointed for the minor.
17. There is a mere suggestion to the Court and there is nothing in it to show that if the Court did not permit him to retire he would decline to act. It is not unlikely that the Court thought that the reason given was not a sufficient reason to permit the guardian to retire. There is thus absolutely no justification for holding that after the 15th April, 1901, the plaintiff must be treated as having been unrepresented in the proceedings.
18. Krishna Pershad v. Moti Chand  40 Cal. 635 relied on by the plaintiff's learned vakil is clearly distinguishable. In that case, it was held that the mother of the infant was competent to make an application on his behalf to set aside the date when a Court-guardian duly appointed who was on the record, refused to continue to act in that capacity. It is one thing to say that when the minor's interests are not being safeguarded, somebody other than the guardian on the record can take steps to protect those interests but it is a quite different thing to hold that an order of Court made in the presence of a guardian not duly removed is invalid and of no effect, merely on the ground that the guardian had previously intimated that he was unwilling to act. This objection of the plaintiff, therefore, fails.
19. I may in conclusion say a word regarding the ground of fraud taken by the lower Court. The learned Judge is of the opinion that fraud was brought home to the 1st and 2nd defendants and the sale is, therefore, invalid, but it must be borne in mind that the 2nd defendant had prior to the suit parted with his interest in favour of a third party and that that interest is now vested in the 11th defendant. It is hardly proper to. penalize the 11th defendant for the fraud of the 2nd defendant without giving the former a chance to meet a case of fraud.
20. In the result, the appeal is allowed and the suit is dismissed.
21. As regards costs, I do not think, in the circumstances, that I can allow the 1st and 2nd defendants any costs. The order of the lower Court directing the 1st and 2nd defendants to pay the plaintiff his costs of the suit is not disturbed. The suit is dismissed with costs throughout of the 11th defendant (3rd appellant). Under Order 32, Rule 11 I direct that the plaintiff shall pay the Court-fees payable to the Government on the plaint.
22. I agree.
23. The memorandum of objections is dismissed but without costs.