MAHADEV SHANKAR LOKHANDE Vs. SHANKAR SWAMIRAO LOKHANDE

JUDGEMENT

(1.) [His Lordship stated the facts of the case and on examining the facts of the case arrived at the conclusion that the mortgage as well as the sale transactions were for legal necessity and were not for illegal or immoral purposes. The judgment then proceeded :] The main argument based on legal ground is that in the previous suit by defendants Nos. 3 to 5 the plaintiff's father was appointed his guardian ad litem in spite of a conflict of interest between them in disregard of the provisions of Order XXXII, Rule 4, of the Civil Procedure Code, and that, therefore, the compromise decree was not binding on the plaintiff irrespective of the merits of his contention in the present suit. The alleged conflict is that it would always be in the interest of the father to pay off his debts from the joint estate in which his minor son has a share even though the debts were illegal and immoral and as such not binding on the son, and that in a suit by the creditor against the father and the minor son, the father should not be appointed as his guardian ad litem as he would not be expected to plead on behalf of his son the illegality or the immorality of his own debts. The argument, in fact, amounts to this that the father in a joint Hindu family, although a natural guardian of his minor son, should not be appointed as his guardian ad litem in a suit brought on a debt incurred by the father as manager of the family, and if so appointed, the decree in such a suit is a nullity as against the minor's share. There is no doubt that if the son subsequently succeeds in proving that the debts for which the decree in the previous suit was obtained were not binding on him in law, he would succeed on the merits, and in such a case the question whether the previous decree was bad against him as the father as his guardian ad litem did not really represent him would not remain. But Mr, Thakor goes further and contends that even though the son may not succeed in proving on the merits that the debts were not binding on him, the previous decree must be set aside on the bare ground that on account of a possibility of conflict of interest the father cannot really represent his son as his guardian-ad-litem. The result of that argument would be that in the son's suit the previous decree in which the father was his guardian ad litem must be set aside against him even though on the merits the Court holds that the debts for which the decree was passed were binding on the son. There is no doubt that a person whose interests appear to be adverse to those of a minor should not be appointed his guardian ad litem, and if there is an adverse interest in fact, a decree would not be binding on the minor at his option, But where a person, especially a natural guardian, is appointed as guardian ad litem, in absence of anything to show that his interest conflicted with that of the minor and a decree was then passed against the minor's share, the question as to the binding nature of the decree against the minor cannot be decided without determining whether on the facts proved there was a conflict of interest between the guardian and the minor, and that cannot be done without going into the merits of the case.

(2.) IN support of his contention Mr. Thakor has relied upon the decision in Sellappa Goundan v. Masa Naiken (1923) I.L.R. 47 Mad. 79, which purports to follow the Privy Council case of Rashid-Un-nisa v. Muhammad Ismail Khan (1909) L.R. 36 I.A. 168, S.C. 11 Bom. L.R. 1225. There the suit was filed for a declaration that a decree obtained against the father himself and as guardian ad litem of the minors was not binding on the minors, as the debt sued upon was not an antecedent debt and was borrowed for the purpose of buying new lands and the father acted negligently in not setting up the defence that it was not binding on the minors. It was held on the evidence that the debt was of such a nature as would not bind the sons and that the defence that the minor's share was not liable would have prevailed if it had been set up in the former suit, and that therefore, the father acted with gross negligence in not setting up that defence. The father's interest was thus clearly adverse to that of the minors, and it was held that the decree was not binding on the sons on the ground that a minor represented by a guardian whose interest was adverse was not legally represented at all. This decision can be clearly distinguished from the present case, because it was found on the evidence in that case that the debts were not binding on the minors. Except on this finding it is difficult to see on what other ground the decision would have been what it is. Mr. Thakor, however, relied on certain observations that it was improper and in fact illegal to appoint the father as guardian at all, and that a minor represented by a guardian whose interest was adverse was not legally represented. It is contended that those observations support the argument that the appointment of the father as guardian ad litem was illegal in its inception on account of a possible conflict of interest, and that the decision of the Privy Council in Rashid-Un-Nisa v. Muhammad Ismail Khan also supports that contention. IN that case the suit was filed on behalf of the minor for a declaration that certain decrees and sales were not binding on the plaintiff as she was not properly represented in the proceedings from which they resulted. It was held that they were invalid because the sister of the minor being a married woman was not the proper person to be appointed as guardian ad litem, and as regards the other guardian, who was the minor's uncle, his interest was obviously adverse as he had purchased in the name of his sons the decrees passed against the minor's father and was thus personally interested in the minor's estate adversely to her. All this was proved in the suit to set aside the decrees and sales, and it was, therefore, held that the minor was never a party to any of the suits in the proper sense of the term, It is clear on the facts of that case that the adverse interest of the uncle in the former proceedings was definitely proved in the subsequent suit and relief was granted to the plaintiff on that ground. That decision, therefore, is not an authority for the proposition that the appointment of a father as guardian ad litem of his minor son is itself sufficient to set aside the decree on the ground of conflict of interest. This decision is considered by the Calcutta High Court in Shaik Abdul Karim v. Thakurdas Thakur (1928) I.L.R. 55 Cal. 1241, where Rankin C.J. has rightly observed as follows (p. 1238): I would desire in particular to guard myself against holding that in any case where a guardian ad litem is appointed by a Court the person afterwards by showing adverse interest can get a right to treat the decree as a nullity. I doubt extremely whether the case of Rashid-Un-Nisa v. Muhammad Ismail Khan,... (to which I have already referred),... which is relied upon for that proposition, really goes so far and I am not to be taken as subscribing to every thing that is said in the case of Sellappa Goundan v. Masa Naiken. These remarks have been approved by the Patna High Court in Chitradhar Narain Das v. Khidar Thakur (1937) I.L.R. 17 Pat. 236. IN that case the suit was filed to set aside a mortgage decree on the ground that the minors were not properly represented by their father as his interest was adverse. It was held on the evidence that as the defences open to the minors were not put forward by the guardian, the decree was not handing on them, but that it cannot be said without going into the merits that the decree was bad simply because the father's interest conflicted with that of the sons. Even the Madras High Court has, in a full bench decision in Venkatasomeswara Rao v. Lakshmanaswami (1928) I.L.R. 52 Mad. 275, F.B., modified the observations made in Sellappa Goundan v. Masa Naiken. It is held there that although it may be undesirable to appoint a person as guardian ad litem whose interest might possibly conflict with that of the minor, the appointment and the decree passed in the suit is not a nullity as against the minor on that ground alone, that it is a question of fact governed by no hard and fast rule of law, and that there is nothing either in the Code or in any of the authorities to lay down not merely that such a person should not as a rule be appointed but cannot in any circumstances be validly appointed.

(3.) THESE are all the relevant cases bearing on this point and we think the result can be sumimarized thus : In the case of a Hindu joint family where the manager has the power to bind the minor members of the coparcenary by an alienation for legal necessity, it is open to the son to challenge it in a suit brought to enforce the alienation on the ground that although it may be binding on the manager, it is not binding on the, minor. His interest may, therefore, conflict with that of the manager as the defences of both may be separate and even antagonistic if the manager wants to throw the burden of his private debt on the family. In such a case it would be undesirable to appoint the manager as the guardian ad litem for the minor in the suit, but if he is so appointed and a decree is passed against the minor's interest in the property, it cannot be said, in absence of fraud or collusion on the part of the manager, that the decree is a nullity merely because the manager ought not to have been appointed as his guardian. If the minor subsequently sues to set aside the decree, he must show that the alienation was not, in fact, binding on him. This would be especially so where the manager is the father who is the natural guardian of the minor and whose personal debts also are binding on the son if they are antecedent to the alienation and are not illegal or immoral In the present case there is no proof of fraud or collusion on the part of the father, and the debts for which the mortgage and the sale were made are not shown as not binding on the son. The interests of the father and the son are not thus conflicting. We are of opinion, therefore, that the mortgage decree is not proved to be not binding on the son on this ground.