1. This is an appeal by the fourth defendant in a suit for recovery of possession of immoveable property on establishment of title. The appellant was an infant at the date of the institution of the suit. On the 5th May 1916 an application was made on behalf of the plaintiff that Hari Das Ghose, who had been appointed guardian of his person and property under the Guardians and Wards Act, 1890, might be appointed his guardian for the suit. Thereupon notices were issued upon the minor and the proposed guardian. The notices were in the form prescribed in Appendix H to the Code of Civil Procedure and stated that if within the period prescribed an application was not made to the Court for the appointment of the proposed guardian or some friend of his to act as guardian of the minor for the suit, the Court would proceed to appoint some other person to act as guardian ad litem of the minor. On the 6th June 1916 it was reported to the Court that the notices had been duly served both upon the minor and his proposed guardian. There was no appearance, however, on behalf of the proposed guardian, yet the Court proceeded to appoint him as guardian of the minor for the suit. At no stage of the suit, did the guardian appear and the result was that the suit was decreed ex parte against the infant described on the record as represented by the certificated guardian. Against this decree, the guardian, on behalf of the infant, preferred an appeal to the Subordinate Judge and contended that the decree could not stand as against the infant. This contention was overruled and the appeal was dismissed. Since the date of the decree of the Subordinate Judge, the infant has attained majority and the present appeal has been preferred by him in his own right. His contention is that the decree made by the Primary Court is void and inoperative as against him and should be set aside with direction to that Court to re-try the suit so far as he is concerned. This position has been controverted on behalf of the respondent. The decision of the question raised before us is not free from difficulty and depends upon the true construction of the provisions of Order XXXII of the Code of Civil Procedure.
2. Order XXXII, rule A (1), provides that where the defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor. This makes it obligatory on the Court to appoint a proper person to be guardian of the minor defendant for the suit. The rule then prescribes the procedure to be followed for the purpose of such appointment. No order shall be made on any application under this rule except upon notice to the minor and to any guardian of the minor appointed or declared by an authority competent in that behalf, and where there is no such guardian, upon notice to the father or other natural guardian of the minor, or where there is no father or other natural guardian, to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub rule. Rule 4 next deals with the question as to who may act as next friend or be appointed guardian for the suit. The persons who may so act are divided into two classes. Sub-rule (1) provides that any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit. Sub-rule (2) provides that where a minor has a guardian appointed or declared by competent authority, no person other than such guardian shall act as the next friend of the minor or be appointed his guardian for the suit unless the Court considers, for reasons to be recorded, that it is for the minor's welfare that another person be permitted to act or be appointed, as the case may be. Then follows Sub-rule (3) in the following terms: 'No person shall, without his consent, be appointed guardian for the suit.' The generality of the language used in Sub-rule (3) makes it abundantly clear that the Legislature intended this sub rule to be applicable as well to cases under Sub-rule (1) as under Sub-rule (2); in other words, the Legislature has prescribed that no person who is competent to act as guardian of an infant either under Sub-rule (1) or under Sub-rule (2) shall be appointed guardian for the suit without his consent. It was argued on behalf of the respondent in essence that this sub-rule is applicable only to cases of persons other than certificated guardians. This result, it was contended, follows from the provisions of the Guardians and Wards Act, 1890, which define in Sections 10 and 27 the duties of a person appointed as guardian of the person and property of an infant. Sub-section (3) of Section 10 provides that the application of a person to be appointed guardian of an infant mast be accompanied by a declaration of the willingness of the proposed guardian to act and the declaration must be signed by him and attested by at least two witnesses. Section 27 provides that a guardian of the property of a ward is bound to deal with it as carefully as a man of ordinary prudence would deal with it, if it were his own, and, subject to certain qualifications, he may do all acts which are reasonable and proper for the realisation, protection or benefit of the property, The respondent has urged that a guardian appointed under Act VIII of 1890 is under an obligation to defend a suit instituted against his ward; and that consequently, the Court where the suit has been instituted is entitled to presume, if not as a matter of law, at any rate as a matter of fact, that he will consent to be appointed guardian for the suit. We are of opinion that this contention should not prevail. If this were the intention of the Legislature, Sub-rule (3) of Rule 4 might have been placed between Sub-rules (1) and (2) or might have been framed in different words. For instance, it might have provided that no person, other than a certificated guardian, shall, without his consent, be appointed guardian for the suit.
3. But, beyond this, a serious difficulty might arise, if the Court which had seisin of the suit were held competent to appoint a certificated guardian as guardian for the suit even where he withheld his consent or expressly declined the appointment. A person appointed guardian for the suit in such circumstances would, almost to a certainty, neglect to look after the suit, and the interest of the minor would be placed in serious jeopardy. It may be conceded that a certificated guardian who takes up such an attitude may render himself amenable to the disciplinary jurisdiction of the Court which appointed him as guardian. He may, indeed, be removed under Section 39 for breach of duty or neglect of trust. But that clearly does not afford adequate protection to the infant whose interests would be imperilled by the remissness of a person appointed, against his wishes, possibly in spite of his protest, to act as guardian for the suit. We are reluctant to adopt a construction of Rule 4 which may conceivably lead to so disastrous a result. In our opinion, Sub-rule (3) of Rule 4 controls both Sub-rule (1) and Sub-rule (2) and places a material restriction upon the power which the Court may exercise thereunder. It is thus plain that, in the case before us, as the proposed guardian did not signify his consent, the Court should not, in contravention of the express direction of Sub-rule 3 of Rule 4, have appointed him as guardian for the suit.
4. What, then, is the effect of an appointment so made? It has been laid down in a long series of decisions that when a person has been appointed guardian without his consent, the infant is not represented and a decree made in a suit so constitued has no binding effect upon him, Amongst the decisions of the Judicial Committee, reference may be made to Khiarajmal v. Daim 32 I.A. 23: 32 C. 293: 1 C.L.J. 584 : 8 Sar. P.C.J. 734 : 9 C.W.N. 201 : 2 A.L.J. 71 : 7 Bom. L.R. 1(P.C.)., Rashid unnissa v. Muhammad Ismail Khan 3 Ind. Cas. 864 : 36 I.A. 168 : 31 A 572 : 18 C.W.N. 1182: 10 C.L.J. 318 : 6 A.L.J. 822 : 11 Bom. L.R. 1225 : 6 M.L.T. 279 : 19 M.L.J. 631 (P. C) and Partab Singh v. Bhabuti Singh 21 Ind. Cas 288: 40 I.A. 182 : 35 A. 487 : 17 C.W.N. 1165 : (1913) M.W.N. 785 : 14 M.L.T. 299 : 25 M.L.J. 492 11 A.L.J. 901 : 16 O.C. 247 : 18 C.L.J. 384: 15 Bom. L.R. 1001 (P.C.).. Amongst the decisions of this Court, reference may be made to Dakeshur Pershad Narain Singh v. Rewat Mehton 24 C. 25 : 12 Ind Dec (N.S.) 681, Narsing Narain v. Jahi Mistry 13 Ind Cas. 414 : 15 C.L.J. 3, Bal Kishan Lal v. Topeswar Singh 14 Ind. Cas 845 : 15 C.L.J. 446 : 17 C.W.N. 219, Dinabandhu Nandi v. Mashuda Khatun 17 Ind. Cas. 263 : 16 C.L.J. 318, Purna Chandra Kumar v. Bejoy Chand 18 Ind. Cas. 859 : 18 C.L.J. 18 : 17 C.W.N. 549, Krishna Chandra v. Jogendra Narain 27 Ind Cas. 139 : 23 C.L.J. 469 : 19 C.W.N. 537, Baneswar Pramanik v. Tarapada Bhattacharjee 41 Ind. Cas. 872 : 26 C.L.J. 258, Radhashyam Dasya v. Ranga Sundari Dasya 59 Ind. Cas. 664 : 24 C.W.N. 541 and Surendra Nath Bose v. Aghore Nath Bose 62 Ind. Cas. 464 : 25 C.W.N. 525. A similar view was adopted by the Madras High Court in Chundary Krishnayya v. Koripalli Raju 35 Ind. Cas. 154 : 31 M.L.J. 39 and Shroof Sahib v. Raghunatha Sivaji 29 Ind. Cas. 579 : 18 M.L.T. 401, though a contrary view appears to have prevailed at one time in that Court, as indicated by the judgment in Oodayanasamy Tevar v. Alagappa Chetty 14 M.L.J. 342. Indeed it is now well settled that the provision as to the consent of the person proposed to be appointed guardian for the suit is mandatory and imperative, and this was emphasised by this Court in Mohan Krishna Dar v. Har Prasad 40 Ind. Cas. 2. But the respondent has urged that the present case falls within the principle of the decision of the Judicial Committee in Walian v. Banke Behari Pershad Singh 30 C. 1021 : 30 I.A. 182 : 7 C.W.N. 774 : 5 Bom. L.R. 822 : 8 Sar. P.C.J. 512 (P.C.), which is clearly distinguishable. As appears from the judgment of the Judicial Committee in that case, the mother who had been proposed for appointment as guardian of her minor son had entered appearance and acted throughout the trial of the suit. No trace, however, could be found on the record of a formal order for her appointment as guardian ad litem. The Judicial Committee held in substance that the absence of a formal order of appointment as guardian is not fatal to the validity of the proceedings, where the proposed guardian has in fact appeared and acted on behalf of the minor. In such a contingency, the absence of the formal order may well be treated as a curable irregularity. That this is the true effect of the decision of the Judicial Committee follows from the decisions in Janki Das v. Mahabir Prosad 22 Ind Cas. 240, Pokhpal Singh v. Chhiddu Singh 15 Ind. Cas. 903 : 9 A.L.J. 663, Ram Asray Singh v. Sheonandan Singh 35 Ind. Cas. 868 : 1 P.L.J. 573 : 1 P.L.W. 35: (1917) Pat. 21 and Keshawesarindra Sahi v. Debendra Bala Dassi 48 Ind. Cas 245 : 4 P.L.J. 213 : (1919) Pat. 121. This principle has obviously no application to the circumstances of this case; nor can the provision of Section 99, Civil Procedure Code, be invoked successfully, because as pointed out in Surendra Nath Boss v. Aghore Nath Bose 62 Ind. Cas. 464 : 25 C.W.N. 525, when the Court proceeds to make a decree against an infant who is not properly represented by a guardian as contemplated by the Code of Civil Procedure, the Court acts without jurisdiction, inasmuch as a decree is made against a person who is in essence not before the Court.
5. It has been finally urged that the fact that the proposed guardian had preferred an appeal to the Subordinate Judge may be taken as an index that he had consented to his appointment as guardian for the suit. We are unable to give effect to this contention. No doubt the proposed guardian preferred an appeal on behalf of the infant; but we have the equally important fact that he never appeared during the trial of the suit and took no steps to protect the interest of the infant. The view we take is supported by the decision of the Madras High Court in Shroof Sahib v. Raghunatha Sivaji 29 Ind. Cas. 579 : 18 M.L.T. 401. We hold accordingly that the decree made against the appellant cannot be maintained and must be vacated.
6. The result is that this appeal is allowed, the decrees of both the lower Courts set aside, only in so far as the appellant is concerned, and the suit remitted to the Court of first instance to be re tried against him. The appellant is entitled to his costs in this Court from the plaintiff-respondent. We make no order as to his costs in the Court below.
7. It is conceded that this judgment will govern Second Appeals Nos. 2377 to 2379 of 1910; a decree will be drawn up in similar terms in each of those cases.