1. This is an appeal on behalf of the plaintiff, who was an infant at the time of the commencement of this suit, for a declaration that an ex parte decree passed against him on the 18th March 1904 and the execution sale held on the basis thereof, have not in any manner affected his interest. It appears that on the 17th September 1903, the defendants-respondents sued the plaintiff, then an infant, and several other persons for contribution. The then plaintiffs applied that the mother of the infant might be appointed guardian ad litem. Notice was issued in due course upon the infant as also on his mother. The mother, however, did not enter appearance. Thereupon, the Court recorded the following order: 'On the plaintiffs' petition supported by an affidavit Musammat Ojahar is appointed guardian ad litem on behalf of the minor defendant in this case.' There was no appearance on behalf of the infant at the trial and the suit was decreed as against him ex parte. In execution of that decree his properties have been sold. The plaintiff now contends that the decree and the sale subsequent thereto are entirely inoperative in so far as he is concerned, on the following grounds; namely: first, because the mother was not properly appointed guardian as she never consented to act as such guardian; secondly, because she was appointed guardian in contravention of the provisions of Section 4t3 of the Code of Civil Procedure of 1882, and thirdly, because she was appointed guardian in contravention of Section 457 of the Code of 1882.
2. In so far as the first of these contentions is concerned, it is obviously well founded and must prevail. As already stated, notice was served upon the mother who had been proposed as guardian by the plaintiffs in the suit. She neither appeared nor intimated to the Court that she was willing to accept the office of guardian ad litem of her minor son. It is an elementary principle that no person can be appointed to act as guardian ad litem of an infant., without his consent Jadow v. Chhagon 5 B. 306 Daniell on Chancery Forms, pp. 54, 55; Annual Practice, 1911, Vol. II, p. 14, Form 8; and Civil Procedure Code, 1908, Order XXXII, Rule 4(3)]. In this case, the mother who was proposed as guardian ad litem, never consented to act as such, and it was not competent to the Court to appoint her as guardian ad litem of her infant son.
3. In so far as the second contention is concerned, there is considerable force in it. Section 443 of the Code of 1882 provides that where an authority competent in this behalf has appointed or declared a guardian or guardians of the property or person or both, of the minor, the Court shall appoint him or one of them, as the case may be, to be the guardian for the suit under the section, unless it considers, for reasons to be recorded by it, that some other person ought to be so appointed. Now, it appears that in the present ease, the father of the infant had been appointed guardian under Act VIII of 1890. He was, therefore, the proper, person to be appointed guardian ad liten of his infant son. The plaintiffs in the suit, however, did not bring it to the notice of the Court that there was a certificated guardian and applied that the mother might be appointed guardian. The Court, therefore, had no opportunity to consider whether some person other than the certificated guardian ought to be appointed guardian ad litem of the infant defendant. In view of this circumstance, the learned Vakil for the appellant has contended, on the authority of the decision in the case of Hanuman Prasad v. Muhammad Ishaq 28 A. 137 : 2 A.L.J. 615 : A.W.N. (1905) 229 that the mother was appointed guardian in contravention of the provisions of the statute and that consequently the infant must be taken not to have been represented at all for the purposes of that suit. On behalf of the respondents, reliance has been placed upon the cases of Jogeshwar Narain, v. Lala Mooralidhar 7 C.L.J. 270 and The Midnapore Zemindari Co. v. Gobinda Mahto 8 C.L.J. 31 in which a Division Bench of this Court followed the decision in. Dammar Singh v. Pirbhu Singh 29 A. 290 : 4 A.L.J. 153 : A.W.N. (1907) 70 and laid down that if a guardian has been appointed in contravention of the provisions of Section 413 of the Code of 1832, the act of the Court amounts merely to an irregularity and does not vitiate the proceedings so far as the infant is concerned. It is not necessary for the purposes of the present case to consider whether the view taken by the learned Judges of the Allahabad High Court in the case of Hanuman Prasad v. Muhammad Ishaq 28 A. 137 : 2 A.L.J. 615 : A.W.N. (1905) 229 or the view taken by this Court in the cases of Jogeshwar Narain v. Lala Mooralidhar 7 C.L.J. 270 and The Midnapore Zemindari Co. v. Gobinda Mahto 8 C.L.J. 81 gives effect to the true intention of the Legislature. But it is worthy of note that the decision in Hanuman Prasad v. Muhammad Ishaq 28 A. 137 : 2 A.L.J. 615 : A.W.N. (1905) 229 was not brought to the notice of the learned Judges of this Court who decided the two cases to which reference has been made. It is further worthy of note that the case of Dammar Singh v. Pirbhu Singh 29 A. 290 : 4 A.L.J. 153 : A.W.N. (1907) 70 was decided by the same two Judges as had taken the opposite view in Hanuman Prasad v. Muhammad Ishaq 28 A. 137 : 2 A.L.J. 615 : A.W.N. (1905) 229. We farther find that the case last mentioned, though cited on two occasions, namely in the cases of Ganga Ram v. Mihin Lal 28 A. 416 : 3 A.L.J. 187 : A.W.N. (1808) 73 and Krishna Pershad Singh v. Gosta Behari Kundu 5 C.L.J. 434 was not disapproved. In view of this conflict of authorities, we reserve our opinion upon the question raised which when it arises will require very careful scrutiny.
4. In so far as the third ground on which the validity of the proceedings in the original suit is challenged is concerned, it is clear that the appellant must succeed. It is pointed out that the mother who was appointed guardian ad litem was a married woman and under Section 457 of the Code of 1332 she could not have been appointed to act as guardian ad litem of the minor. In support of this view, reference has been made to the cases of Kali Shankar Sahai v. Maharaja Pratab Udai Nath 6 C.L.J. 36 and Rashid-un-nisa v. Muhammad Ismail Khan 10 C.L.J. 318 : 13 C.W.N. 1182 : 3 Ind. Cas. 864 : 6 A.L.J. 822 : 11 Bom. L.R. 1225 : 6 M.L.T. 279 : 31 A. 572. The decision of the Judicial Committee, which is conclusive upon this matter shows that when a married woman has been appointed guardian ad litem for an infant defendant, he must be taken not to have been represented for the purposes of the suit, In fact, the Judicial Committee laid down that in such cases he is in the same position as if he was not made a party to the suit at all. It is also clear from the decision of the Judicial Committee in the case of Khairajmal v. Daim 1 C.L.J. 584 : 32 C. 298 that this contravention of the statute is not merely an irregularity but renders the proceedings a nullity in so far as the infant is concerned.
5. The result is that the plaintiff must be deemed bound in no way by the decree and the execution sale which followed thereon. The appeal is, therefore, allowed, the decree of the Courts below set aside and the suit decreed with costs in all the Courts.