1. The subject-matter of the litigation which has given rise to this appeal is immoveable property claimed by the plaintiff-appellant as a member of a joint Mitakshara familu. According to the plaintiff, at the time of the institution of the suit, the family consisted of his father, Lachmi Pershad, who is the fourteenth defendant in the suit, one Rajendra Pershad (the fifteenth defendant) and the plaintiff himself. Before the birth of the plaintiff, who is still an infant, his father, as head of the family, executed a mortgage of the disputed properties in favour of the first thirteen defendants. The mortgagees sued to enforce the security and joined the plaintiff as one of the defendants. As the plaintiff was an infant, the mortgagees proposed that the father, who was himself a defendant in his capacity as mortgagor, should be appointed guardian ad litem. The usual notices were issued, but the father of the plaintiff refused to accept service. He subsequently entered appearance on his own behalf but did not accept the office of guardian of his infant son. The result was that the infant was not represented in the suit and there was an ex parte decree against him on the 25th March 1903. The decree-holders sabsequently applied for execution; the properties were sold in due course and purchased by themselves on the 8th November 1905. It further appears that an application was made' on behalf of the plaintiff to have the ex parte decree set aside. This, however, was dismissed for default, and a later1 application to restore the application to set aside the ex parte decree was rejected on the 22nd July 1905. On the 9th April 1907, the plaintiff commenced the present action for declaration, that the decree was fraudulent and collusive and not binding upon him.
2. The Courts below have dismissed the suit. The Subrodinate Judge has held that the suit was barred because the objections taken to the validity of the decree were made the foundation of the application under Section 108 to set aside the exparte decree and consequently could not be re-iterated in the present proceedings. The Subordinate Judge has also held that the plaintiff was represented in the suit by his father and consequently had no legitimate grievance. The Subordinate Judge has finally held that as the plaintiff was born after the mortgage-bond had been executed, he was bound thereby, and even if it was assumed that he was not made a party to the suit, he was bound by the decree and the consequent sale. On behalf of the plaintiff-appellant, the decision of the Subordinate Judge has been challenged substantially on three grounds, namely, first, that the suit w not barred by reason of the dismissal of the application under Section 108; secondly, that the plaintiff was not represented in the mortgage suit and, consequently, his interest in the joint family property has not been affected by the motrgage decree and the sale; and, thirdly, that, in any event, he ought to be allowed an opportunity to redeem in the present suit. In our opinion, each of these contentions is well-founded and must prevail.
3. In support of his view that the suit is barred by reason of the dismissal of the application under Section 108 of the Code of 1882, the Subordinate Judge places reliance upon the case of Ram Gopal v. Prasanna Kumar 2 C.L.J. 508 : 10 C.W.N. 529. But that decision is really of no assistance to the respondent. It does not affirm the proposition that the failure of an application to set aside an ex ptrte decree bars a subsequent suit for declaration that the decree is not binding upon the plaintiff on other grounds. We may point out, however, that the decision in Ram Gopal v. Prasanna Kumar 2 C.L.J. 508 : 10 C.W.N. 529 has been doubted in the case of Gulab Koer v. Badshah Bahadur 10 C.L.J. 420 at p. 429 : 13 C.W.N. 1197 : 2 Ind. Cas. 129. On the other hand, it is now well settled, by the decision of the Judicial Committee in the cases of Radha Raman Shaha v. Paran Nath Roy 28 C. 475 : 5 C.W.N. 757 and Khagendra Nath Mahata v. Pran Nath Roy 29 C. 395 : 6 C.W.N. 473 that it is open to a plaintiff, whose applications to set aside an ex parte decree under Section 108 and the sale consequent thereon under Sections 244 and 311 of the Code of 1882 have been infructuous, to maintain a suit to set aside the decree on the ground of fraud or for any other valid reason. In our opinion, the plaintiff is entitled to maintain the present suit and to invite the Court to consider whether the mortgage decree was made under circumstances which would make it valid and operative as against him.
4. In support of his view that the plaintiff is bound by the decree in the mortgage suit, the Subordinate Judge has placed reliance upon the decision of the Judicial Committee in the case of Walian v. Banke Behari Pershad Singh 30 C. 1021 : 7 C.W.N. 774. That decision, however, is not applicable to the circumstances of the present case. Here it is patent on the face of the record that the plaintiff was not represented by any competent guardian in the mortgage suit. The mortgagees applied that the father who was himself a defendant should also be appointed guardian ad litem of his infant son. Notices were issued; but, as already stated, the father declined to accept service of the notice, and entered appearance only on his own behalf. It was manifest from his conduct that he was not willing to take upon himself the position of a guardian ad litem of his infant son. The suit was thus not defended on behalf of the infant, who was not represented at all. It is perfectly true that under Section 457 of the Code of 1882, a co-defendant might be appointed guardian for the suit, it he had no interest adverse to that of the minor. Here, however, there was a clear conflict of interest between the father and the son. The father, professing to act as the head of a Mitakshara family, had executed a mortgage of the family properties. It was not open to him to impugn the validity of the mortgage. On the other hand, it would be the duty of the guardian ad litem of the infant to urge as a defence that the mortgage was executed beyond the scope of the authority of the father and created under circumstances which would not make it binding upon the other members of the family. It cannot, therefore, be affirmed that in this case the infant has not been prejudiced by reason of the omission of the mortgagees plaintiffs to get a proper person appointed as his guardian ad litem. It seems desirable also to point out that no person can be appointed guardian ad litem without his consent. Merely because the plaintiff chooses to propose a certain person as guardian ad litem of an infant defendant, it does not follow that such person is bound to accept the office. It is the duty of the plaintiff to secure the consent of the proposed guardian. If the proposed guardian does not enter appearance and take upon himself the burden of the duties of a guardian of the infant defendant, the course open to the plaintiff is obvious ; he must get one of the officers of the Court appointed as guardian ad litem. See Narsingh v. Sheikh Jahi 15 C.L.J 3 : 13 Ind. Cas. 14. No doubt, it may sometimes happen, as in the case before the Judicial Comtrittee, Walian v. Banke Behari Pershad Singh 30 C. 1021 : 7 C.W.N. 774 that although no order has been expressly made by the Court for the appointment of the proposed guardian as guardian ad litem of the minor, yet the surrounding circumstances conclusively indicate that the guardian has taken upon himself to discharge all the duties of the office. For instance, if the guardian enters appearance and acts on behalf of the infant, the mere omission of the Court to record the order of appointment would not invalidate the proceeding. The distinction between the two classes of cases is manifest on an examination of the judgment of the Judicial Committee in the case of Khiaraj Mal v. Daim 1 C.L.J. 584 : 32 C. 296 : 2 A.L.J. 71 : 7 Bom. L.R. 1 : 9 C.W.N. 201 : 32 I.A. 23. In that case, no guardian was appointed for three infant defendants, and the suit proceeded against them without any person brought on the record to represent the infants. The Judicial Committee held that a decree made against the infants under these circumstances could not be treated as binding upon them. It was observed that the Court had no jurisdiction to sell the property of persons who were not parties to the proceedings or were not properly represented on the record. As against such persons, the decree and the sale would be a nullity and might be disregarded without any proceedings to set them aside. If authority is required for this elementary proposition, it may be found in the judgment of Sir Barnes Peacock in the case of Kishen Chunder Ghose v. Ashoorun (1863) Marshall 647. The fundamental point, therefore, to be considered in a case of this description is, whether the minor defendant has been sufficiently represented by a guardian ad litem or whether his interest has not at all been protected. If the case is of the former description, the validity of the decree cannot be successfully impeached. If, on the other hand, the case is of the latter description, the decree must be treated as inoperative against the infant: Karim v. Priyo Lal Bose 28 A. 127 : A.W.N. (1905) 217 : 2 A.L.J. 619 We must, consequently, hold that in the case before us, the infant was not represented at all, and the decree is not binding upon him.
5. The question next arises, what is the proper decree to make in this suit. If there had been no trial on the merits in the present litigation, the plaintiff might, perhaps, have asked for a declaration that the decree was not binding upon him. Bat, as was pointed out by this Court in the case of Lala Suraj Prosad v. Golab Chand 28 C. 517 it would not be right for the Court to drive the mortgagee to a separate suit against the infant to enforce the security as against him, when the merits have already been investigated. In fact, the case before us is very much stronger than the case of Lala Suraj Prosad v. Golab Chand 28 C. 517. Here, as already explained, the infant was not in existence at the time the mortgage was executed. It has further been found by the Court of first instance, and that finding was not challenged before the Subordinate Judge, that the mortgage was executed for legal necessity. Under these circumstances, there can be no question, in view of the decision in the case of Chuttan Lal v. Jai Ram 8 A.L.J. 15 : 33 A. 283 : 8 Ind. Cas. 719 which does not conflict with the decision of this Court in the case of Bunwari Lal v. Daya Sunker Misser 13 C.W.N. 815 : 1 Ind. Cas. 670 that the mortgage is binding on the infant. The only grievance of the infant, therefore, is that he has not been allowed an opportunity to redeem. On this part of the case, the Subordinate Judge relied upon the decision in the case of Bholanath Khettry v. Kartick Kissen Das 11 C.W.N. 462 : 34 C. 372 and Mathuraman v. Ettappasami 22 M. 372 in support of the proposition that the infant might be concluded by the mortgage decree and sale, though he was not made a party to the suit or the execution proceedings. But that position cannot be maintained in view of the decision in Lala Suraj Prosad v. Golab Chand 28 C. 517. The decision in Bholanath Khettry v. Kartick Kissen Das 11 C.W.N. 462 : 34 C. 372 does not really support the view taken by the Subordinate Judge. It is clear from that decision as also from well-established principles that although the plaintiff, who was born after the execution of the mortgage by his father for a legal purpose, may be bound by the transaction, yet the effect of his birth was to vest in him a fragment of the equity of redemption which, before that event, had vested in his father. Consequently, before his interest in the equity of redemption could be cut off by a mortgage suit, he must be made a party to such suit and represented by a guardian ad litem duly appointed. In the events which have happened, it is clear that the equity of redemption which was vested in the plaintiff by his birth has never been extinguished by the proceedings in the Court below. He is, therefore, still entitled to ask for an opportunity to redeem. The learned Vakil for the respondent has, however, argued that as the suit was based on allegations of fraud, which have completely failed, the Court would be very reluctant to afford the plaintiff an opportunity to redeem on the footing that the mortgage was a genuine transaction and the decree was rightly made. No doubt, there is much force in this contention. But it must be observed that even if the present attempt of the plaintiff fails, there will be nothing to prevent him from enforcing his right of redemption in a suit properly framed for the purpose.
6. It would manifestly not be to the interest of either party to this litigation to allow the possibility of a fresh suit. We are, therefore, of opinion that a decree for redemption ought to be made in the present litigation although there was no express prayer for redemption made in the plaint.
7. The result is that this appeal is allowed and the decrees of the Courts below discharged.
8. The plaintiff will have a decree to the effect that upon payment of Rs. 620 (Rupees six hundred and twenty) within six months from this date, he will be entitled to recover possession of a fourth share of the disputed properties. If he fails to make this payment, his right of redemption will be treated as extinguished and his suit will stand dismissed with costs in all the Courts. If the plaintiff makes the payment as directed, there will be no order for costs in any Court.