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/s. Masa Naiken (1923) I.L.R. 47 Mad. 79, which purports to follow the Privy Council case of Rashid-Un-nisa V/s. Muhammad Ismail Khan (1909) L.R. 36 I.A. 168 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/s. 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/s. 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/s. 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/s. Masa Naiken. These remarks have been approved by the Patna High Court in Chitradhar Narain Das V/s. 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/s. Lakshmanaswami (1928) I.L.R. 52 Mad. 275, F.B., modified the observations made in Sellappa Goundan V/s. 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.) Mr. Thakor has further relied on certain observations of the Allahabad High Court in Murlidhar V/s. Pitambar Lal (1922) I.L.R. 44 All. 525. In that case the minor's uncle was appointed as his guardian ad litem in a previous suit to enforce a mortgage created by the uncle who was the manager of the family, and the uncle confessed to a decree against himself and the minor. In a suit toy the minor through a next friend to set aside the decree as against him, it was held on the evidence that the mortgage was made for the private speculation of the uncle and for certain alleged home expenses which were found to be false. The mortgage, therefore, was held as not binding on the minor and the decree was set aside as against him. In the course of the judgment it was observed that where the mortgage was made by the manager of the joint property of himself and the minor, a duty was cast on the Court to consider whether the manager, who could not repudiate his own mortgage, was at all a proper person to represent the minor, and that if it appointed a person disqualified under Rule 4 of Order XXXII, it was an illegality rather than a mere irregularity. Those observations, however, do not mean that the appointment of the manager as guardian ad litem is by itself illegal apart from the prejudice caused to the minor. In fact the final remarks in the judgment on this point are that in all such cases where a minor subsequently sues to set aside a decree as against him on the ground that he was not properly represented, the merits have to be gone into, and that if the Court finds that he had not been prejudiced, it was unnecessary to go into any other question. This decision, therefore, does not support the contention that the previous decree could be set aside irrespective of the merits of the subsequent suit on the point of the binding nature of the transaction on the minor. On the other hand, such a contention has been expressly negatived by the same High Court in Sundar Lal V/s. Kunwar Hari Har Sahai . The lower Court had held there that where the father who had executed the mortgage-deed acted as guardian ad litem, the trial was vitiated on that ground alone and there was no necessity to go into the question as to whether or not the deed relied upon by the mortgagee was made for legal necessity. The High Court disagreed with that view and stated that the minor should be granted relief only in those cases in which he is able to establish that the transaction was not binding on him for want of legal necessity or some other cause and that his interest had suffered by the appointment, It was further observed that however desirable it may be not to appoint the father as guardian ad litem on account of a possible conflict of interest, if, however, he was appointed, it did not follow that it was his duty to create and manufacture evidence in order to support the case of the minor. We find ourselves in complete agreement with this view.